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2004 DIGILAW 633 (MP)

Bhaiyalal Shukla v. Union of India

2004-08-06

R.V.RAVEENDRAN, SHANTANU KEMKAR

body2004
JUDGMENT Raveendran, C.J. -- An order dated 18.11.2003 was passed against the appellant Employer under section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as 'Act' for short) directing him to deposit certain amounts due in respect of the period from April, 1993 to September, 1999, Feeling aggrieved, the appellant filed a petition for review of the said order under section 7B of the Act. The said review petition was rejected. When the review petition was rejected, the appellant challenged the original order dated 18.11.2003 in W.P. No. 2457/2004. The learned Single Judge has dismissed the said petition by order dated 2.7.2004 on the ground that an efficacious alternative remedy by way of appeal is available under section 71 of the Act. The said rejection is challenged in this appeal. Learned counsel for the appellant relied on section 7 B (5) of the Act to contend that the remedy by way of an appeal is not available to him against the original order once a review petition filed against the original order is rejected and that the writ petition ought not to have been rejected on the ground of availability of an alternative remedy. We may first refer to the relevant provisions of the Act, before considering the appellant's contentions, Section 7 A provides for determination of money due from the employer after giving a reasonable opportunity to the employer to represent his case. Section 7B provides for, review of the order passed under section 7 A, either suo motu or on the application of any aggrieved person. Section 71 provides for an appeal against the order passed under section 7 A or section 7B (except an order rejecting an application for review referred to in sub-section (5) of section 7B). Section 7B provides for, review of the order passed under section 7 A, either suo motu or on the application of any aggrieved person. Section 71 provides for an appeal against the order passed under section 7 A or section 7B (except an order rejecting an application for review referred to in sub-section (5) of section 7B). Sub-section (5) of section 7B reads as under: "(5) No appeal shall lie against the order of the officer rejecting an application for review, but an appeal under this Act shall lie against an order passed under review as if the order passed under review were the original order passed by him under section 7 A." The effect of the said provisions can be summarized as follows: (i) An appeal lies under section 71 against an order under section 7 A, determining the money due from an employee: (ii) Where an application for review is rejected, no appeal is maintainable against the order rejecting the application for review. (iii) Where an application for review is allowed, then an appeal is maintainable against the order passed under review, as if it is the original order passed under section 7 A. (iv) Where the application for review under section 7B is rejected, the original order passed under section 7 A stands undisturbed and an appeal will lie under section 71 of the Act against such original order. The logic behind section 7B(5) is clear. If an application for review is allowed and the original order is reviewed, the original order would no longer exist and the review order would replace the original order. Therefore, the appeal is to be filed against the order reviewing the original order, as if it is the original order. On the other hand, if the authority refuses to review the original order, the aggrieved person can challenge by way of appeal, the original order itself and, therefore, there is no need to provide for an appeal against the order rejecting the application for review. The bar against appeal contained in section 7B(5), is only in respect to the order rejecting the application for review and not in respect of the original order. The remedy of appeal available under section 71 against the original order is not taken away by mere filing of an application for review. The bar against appeal contained in section 7B(5), is only in respect to the order rejecting the application for review and not in respect of the original order. The remedy of appeal available under section 71 against the original order is not taken away by mere filing of an application for review. The general principle regarding review is, when an appeal is already filed against the original order, a review petition cannot be filed against the original order. But an appeal can be filed against the original order, either during the pendency of the review application or after the rejection of the review application. If the appeal is filed during the pendency of the review application, the review application will have to be rejected. Section 7B(5) is in pari materia with Order 47 Rule 7 of the Code of Civil Procedure. The decision of the Supreme Court in Shankar Motiram Nale v. Shiolalsing G. Rajput [ (1994) 2 SCC 753 ] and the decision of the Allahabad High Court in Sukhbasilal v. Durjan Singh [ AIR 1963 All. 119 ] clearly lend support to our view that when an application for review is rejected, an appeal would lie against the 'basic' or 'original' order. As the appellant has an alternative remedy of an appeal against the order dated 18.11.2003, under section 71 of the Act, the learned Single Judge has rightly refused to entertain the writ petition. This appeal is, therefore, dismissed.