2026 LLR 222
GAUHATI HIGH COURT
Hon'ble Mr. Devashis Baruah, J.
WP (C) No. 6514/2025, Dt/– 19-11-2025

M/s. Akash Construction and Anr.
v.
The Ministry of Labour and Employment and 5 Ors.

EMPLOYEES PROVIDENT FUND – Review of original order – Legality of – Proceedings for imposing damages and interest were initiated against the petitioner – Proceedings had taken place virtually on account of the Covid-19 pandemic – It was alleged that the said notices were not received – Recovery proceedings were initiated as well – Later, the petitioners filed a petition under section 7A(4) of the EPF Act for setting aside the ex-parte order – The petition was set aside on the ground that there is no provision for review of an order once it is passed – Held, section 7A(4) provides that if an order is passed against an employer ex-parte then an application can be filed within 3 months from the date of communication for such order for setting aside the ex-parte order – Section 7B of the EPF Act also provides that an establishment can apply for review of that order to the officer who had passed the said order – The communication of the respondents rejecting the review is set aside – The APFC directed to consider the application afresh. Paras 8 to 17

For Petitioner: Mr. B. Barooah, Advocate.

For Respondent: Ms. J. Sarma and Ms. S. Dasgupta, Advocates.

IMPORTANT POINTS

• If an order determining dues is passed against an employer ex-parte then an application can be filed within 3 months from the date of communication for such order for setting aside the ex-parte order.
• The EPF authorities cannot dismiss the review application of an employer by stating that the original order cannot be reviewed as per the applicable law.
• Communication of the EPFO rejecting a review application without hearing the establishment is perverse and is to be set aside.

Note: This judgment is still relevant as it enumerates general principles pertaining to provident fund related law.

JUDGMENT & ORDER (Oral)

Devashis Baruah, J.–1. Heard Mr. B Barooah, the learned counsel appearing on behalf of the petitioners. Ms. J. Sarma, the learned counsel, who appears on behalf of the respondent No. 1 and Ms. S. Dasgupta, the learned counsel, who appears on behalf of the respondent Nos. 2 to 6.

2. The petitioner herein has approached this Court assailing the ex-parte order dated 23-08-2021 passed by the learned Assistant Provident Fund Commissioner, Jorhat under section 14B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for short, ‘the Act of 1952') read with Para 32A of the Employees' Provident Funds Scheme, 1952, Para 5 of the Employees' Pension Scheme, 1995 and Para 8A of the Employees' Deposit Linked Insurance Scheme, 1976. Further to that, the petitioners have also assailed the communication dated 19-06-2025 issued by the Recovery Officer of the Employees' Providence Fund Organization, Jorhat, whereby the application so filed by the petitioners under section 7A(4) of the Act of 1952 was rejected on the ground that there is no review permissible against such orders.

3. Taking into account the issue involved, this Court issues Rule, making it returnable forthwith.

4. The materials on record shows that on account of certain alleged non-payment, summons were issued to the petitioners, which resulted in the proceedings initiated under section 14B of the Act of 1952. The said proceedings were continued with the representation of the petitioners. However, on account of the COVID pandemic, the hearing of those proceedings got adjourned and notices were issued to the petitioners to appear virtually. The petitioners, however, alleged that such notices were not received and, as such, the petitioners could not participate in the said proceedings.

5. Be that as it may, in absence of the petitioners, the Assistant Provident Fund Commissioner passed an order on 23-08-2021 ex-parte, thereby directing the petitioners to deposit an amount of Rs. 2,27,076/- under section 14B and interest on belated remittance under section 7Q of Rs. 1,14,717/- within 15 days else coercive action would be taken against the petitioners under section 8B to 8G of the Act of 1952. The petitioners further alleged that such order was also not intimated to the petitioners till the petitioners came to learn that the recovery proceedings were initiated sometime in the year 2022. The petitioners appeared in the said Recovery proceedings and submitted a representation, in the year 2022 itself. However, the same was rejected.

6. It is further seen that in the year 2025, more particularly, on 10-06-2025, the petitioners filed an application under section 7A(4) of the Act of 1952 read with section 151 of the Code of Civil Procedure for setting aside the ex-parte order dated 23-08-2021. The said application, however, was rejected and communicated to the petitioners by the communication dated 19-06-2025 holding inter alia that there was no provision for review of the order passed, once the assessment order is issued and it cannot be reopened for review or to set aside the order as prayed for in the petition. It is under such circumstances, the petitioners had approached this Court.

7. This Court duly heard the learned counsels appearing on behalf of the parties.

8. The issue involved in the instant proceedings is on a very limited scope, inasmuch as, the Recovery Officer vide the impugned communication dated 19-06-2025 had stated that the application so filed by the petitioners under section 7A(4) of the Act of 1952 could not be accepted on the ground that there is no provision for review of the order passed, once the assessment order is issued, it cannot be reopened for review or to set aside the order as prayed for in the petition.

9. Taking into account the above, this Court finds it relevant to take note of section 7A(1) of the Act of 1952, which is reproduced hereinunder:

“ 7A. Determination of moneys due from employers. —(1) The Central Provident Fund Commissioner, any Additional Central Provident Fund Commissioner, any Deputy Provident Fund Commissioner, any Regional Provident Fund Commissioner, or any Assistant Provident Fund Commissioner may, by order,—

(a) in a case where a dispute arises regarding the applicability of this Act to an establishment, decide such dispute; and

(b) determine the amount due from any employer under any provision of this Act, the Scheme or the Pension Scheme or the Insurance Scheme, as the case may be, and for any of the aforesaid purposes may conduct such inquiry as he may deem necessary”.

10. From a perusal of the above provision, it is seen that the authorities mentioned in sub-clause (1) of section 7A have been empowered to determine the amount due from any employer under any provisions of the Act of 1952, the Scheme or the Pension Scheme or the Insurance Scheme, as the case may be.

11. In the instant case, if this Court duly takes note of the order dated 23-08-2021, it is seen that the said order has been passed in exercise of powers under section 14B of the Act of 1952, read with Para 32A of the Employees' Provident Fund Scheme, 1952, Para 5 of the Employees' Pension Scheme, 1995 and Para 8A of the Employees' Deposit Linked Insurance Scheme, 1976. Therefore, the order dated 23-08-2021 is an order passed in terms with section 7A(1)(b) of the Act of 1952.

12. Now, let this Court take note of section 7A(4), which being relevant, is reproduced hereinunder:

“7A(4) Where an order under sub-section (1) is passed against an employer ex parte, he may, within three months from the date of communication of such order, apply to the officer for setting aside such order and if he satisfies the officer that the show cause notice was not duly served or that he was prevented by any sufficient cause from appearing when the inquiry was held, the officer shall make an order setting aside his earlier order and shall appoint a date for proceeding with the inquiry:

Provided that no such order shall be set aside merely on the ground that there has been an irregularity in the service of the show cause notice if the officer is satisfied that the employer had notice of the date of hearing and had sufficient time to appear before the officer.”

13. From a perusal of the above-quoted provisions, it would be seen that if an order is passed under sub-section (1) of section 7A against an employer ex-parte within 3 (three) months from the date of communication of such order, an application can be filed for setting aside such order and subject to satisfaction within the parameters stated therein, the Officer concerned has been empowered to set aside the ex-parte order.

14. This Court also finds it relevant to take note of section 7B of the Act of 1952. Sub-section (1) of section 7B being relevant is reproduced hereinunder:

“ 7B. Review of orders passed under section 7A. —(1) Any person aggrieved by an order made under sub-section (1) of section 7A, but from which no appeal has been preferred under this Act, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the order was made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of such order may apply for a review of that order to the officer who passed the order:

Provided that such officer may also on his own motion review his order if he is satisfied that it is necessary so to do on any such ground.”

15. From a perusal of the above-quoted sub-section, it is apparent that any person aggrieved by an order passed under sub-section (1) of section 7A of the Act of 1952 on the grounds mentioned therein can apply for review of that order to the Officer who passed the order.

16. In the backdrop of the above provisions, if this Court now takes up the communication dated 19-06-2025, it appears that the said communication by which the application filed by the petitioners under section 7A(4) of the Act of 1952 was rejected appears to suffer from perversity, taking into account that the authorities concerned have failed to take note of the above-quoted provisions.

17. Accordingly, this Court disposes of the instant writ petition with the following observation(s) and direction(s):

(i) The communication dated 19-06-2025 is set aside and quashed.

(ii) This Court have not decided anything on merits as regards the legality or validity of the order dated 23-08-2021 passed by the learned Assistant Provident Fund Commissioner, Jorhat.

(iii) The Assistant Provident Fund Commissioner, who is the respondent No. 5 herein is directed to consider the application so filed by the petitioners under section 7A(4) of the Act of 1952 afresh as per the provisions of law, by giving the petitioners opportunity of hearing.

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