2023 LLR 676
BOMBAY HIGH COURT
Hon'ble Mr. Anil S. Kilor, J.
W.P. No. 2719/2022, Dt/ 30-1-2023
Visvesvaraya National Institute of Technology
v.
The Regional Provident Fund Commissioner-II, Nagpur
EMPLOYEES' PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952 Sections 7A and 7B EPF Authority passed order under section 7A without identification of beneficiaries Review application under section 7B of the Act rejected without hearing the petitioner holding that no new ground has been raised EPF Authority issued orders under section 8F(3)(i) of the act prohibiting and restraining the Petitioner from receiving any amount from its bank account Petitioner has challenged these order in writ petition As per settled law, since the EPF Authority while deciding review application has not granted hearing to the petitioner, the matter needs to be remanded back to the EPF Authority to decide the same afresh Writ petition is partly allowed Impugned order is hereby quashed Matter is remanded back for fresh decision, after hearing the petitioner. Paras 7 and 8
For Petitioner: Mr. Shantanu Ghate, Advocate.
For Respondent: Ms. Laxmi V. Malewar, Advocate.
IMPORTANT POINTS
JUDGMENT
Anil S. Kilor, J. (Oral)1. In this writ petition, the challenge is raised to the order dated 29th March, 2022 passed under section 7B of the Employees Provident Funds and Misc. Provisions Act, 1952 (in short referred as Act, 1952) by the respondent, rejecting the application for review.
2. The only ground raised by the learned counsel for the petitioner is that, without hearing the petitioner and without identifying the employees which is mandatory the respondent passed the order under section 7A of the Act, 1952 before the review application was decided.
3. Learned counsel for the petitioner has placed relianced upon the Co-ordinate Bench of this Court in the case of Deogiri Nagari Sahakari Patsanstha Ltd., through its Authorized Officer Krishna Karbhari Agre v. Assistant Provident Fund Commissioner and another , (2022) 1 Mah LJ 259.
4. On the other hand, learned counsel for the respondent . submits that there is no requirement as per the scheme of the Act to provide hearing while rejecting the application for review. She therefore submits that argument made by the learned counsel for the petitioner is not sustainable in the eyes of law. Accordingly, she has placed relianced upon the judgment of the single Bench of Punjab and Haryana High Court in the case of M/s Punj Security & Housekeeping Services Pvt. Limited v. Employees Provident Fund Organization and others , (2022) 4 SCT 817.
5. In this case, admittedly the review petition was filed as . provided under section 7B seeking review of the order passed under section 7A on various grounds mentioned in the review application. Undisputably without granting hearing to the petitioner/establishment, the application came to be rejected on the ground that no new ground has been raised.
6. This Court in a case of Deogiri Nagari Sahakari Patsanstha Ltd., through its Authorized Officer Krishna Karbhari Agre v. Assistant Provident Fund Commissioner and another ( supra ) has observed thus:
7. Be that as it may, the Petitioner-Establishment sought a review of order dated 15th January, 2021 under section 7B of the said Act. The review application was rejected by the Respondents on 18th February, 2021, without affording an opportunity of hearing to the Petitioners. Whereafter, Assistant Provident Fund Commissioner (compliance) issued a prohibitory order in exercise of the powers conferred on him under section 8F(3)(i) of the Act, to Bank of Maharashtra (Bankers of petitioners), whereby it prohibited and restrained the Petitioner from receiving any amount from its bank account with the said bank. These three orders, i.e., one dated 15/01/2021 (under section 10A); 18/02/2021 (under section 10B) and Prohibition Order, are challenged in the instant petition.
8. Mr. Hon, learned Senior Counsel for the Petitioner would submit that the order dated 18th February, 2021 is not sustainable in law, inasmuch as the Petitioner's review application has been rejected without affording opportunity of hearing and in defiance of law settled by this Court in the following cases;
(i) Writ Petition No. 1002/2008; Shri Gajanan Maharaj Sans than v. Regional Provident Fund Commissioner dated 27/08/2008;
(ii) Writ petition No. 3389/2011 Lokvikas Sahakari Bank Ltd. v. Assistant Provident Fund Commissioner , dated 02/05/2011;
(iii) Ashmit Motors Pvt. Ltd. v. Assistant Provident Fund Commissioner , (2017) 1 Mah LJ 885.
9. In the case of Shri Gajanan Maharaj Sanstha (supra), it was held thus:
It is not in dispute that the petitioner filed review petition under section 7B of the Employees Provident Fund Act. The review petition was required to be decided by Assistant provident Fund Commissioner, Sub-Division Office, Akola. There is no dispute before me that the said review petition was decided without hearing the petitioner or without issuing notice of hearing to the petitioner and the learned Counsel for the respondent-organization states that the same was decided with a well reasoned order, and therefore, there is no need to remand the proceedings. It is not possible to accept the contention raised by the learned Counsel for the organization because the provisions of section 7B of the Act specifically provides for review and the same will have to be decided after issuing notice to review petitioner and all concerned parties, and obviously after hearing them. There has to be adjudication of the review petition. Therefore, whether the authority gave a reasoned order or not will not make any difference. In view of the above discussion, I make the following order.
7. Since the judgment of Co-ordinate Bench of this Court in the Deogiri Nagari Sahakari Patsanstha Ltd., through its Authorized Officer Krishna Karbhari Agre v. Assistant Provident Fund Commissioner and another ( supra ) is binding upon this Court. Thus, I am of the opinion that in this case considering the grounds raised in the review application, the respondent ought to have granted hearing to the petitioner and since it was not granted, the matter needs to be remanded back to the respondent to decide the same afresh.
8. As I am of the opinion that the view taken by this Court in the case of Deogiri Nagari Sahakari Patsanstha Ltd., through its Authorized Officer Krishna Karbhari Agre v. Assistant Provident Fund Commissioner and another ( supra ) is the correct position of law, the judgment cited by the learned counsel for the respondent is not of any help to the respondent. In the circumstances, I pass the following order:
(i) Writ petition is partly allowed;
(ii) Impugned order dated 29th March, 2022 passed by the respondent under section 7B of the Employees Provident Funds and Misc. Provisions Act, 1952 is hereby quashed and set aside and the matter is remanded back for fresh decision, after hearing the petitioner.