BARBATI GAS v. REGIONAL PROVIDENT FUND COMMISSIONER, ORISSA
2008-07-31
PRADIP MOHANTY
body2008
DigiLaw.ai
JUDGMENT PER PRADIP MOHANTY, J. The petitioner has filed this writ application challenging the order dated August 31, 1999 passed by the Asst. Provident Fund Commissioner on behalf of the Regional Provident Fund Commissioner under Annexure - 2 by which he has recalled his earlier speaking order communicated vide letter dated June 9, 1999. Case of the petitioner is that on July 31, 1995 the opposite party issued a notice against the petitioner for the purpose of inquiry under Section 7-A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. Since the inquiry could not be concluded within two years, the case was transferred to the Asst. Provident Fund Commissioner, who, after inquiry and verification of documents, passed the speaking order on August 1, 1998, which was ratified by the Regional Provident Commissioner. On June 9, 1999, said speaking order was communicated to the petitioner. On August 31, 1999, the petitioner received a letter from the Asstt. Provident Fund Commissioner intimating that the speaking order communicated vide letter dated June 9, 1999 was recalled. In the said letter, it was further directed that the petitioner should appear before the Regional Provident Fund Commissioner E & R on September 16, 1999 with relevant documents and papers in connection with applicability of the Act. Against that order, the petitioner has preferred this writ application. Mr. Mohapatra, counsel for the petitioner submitted that once the said speaking order Annexure - 1 has been ratified by the Regional Provident Fund Commissioner after going through the entire case record, it cannot be reopened. He also submitted that the impugned order dated August 31, 1999 does not carry any reason. Therefore, it is not sustainable in the eye of law. It is nothing but harassment meted out to the petitioner. Moreover, the Act does not permit recall; of any order after being ratified by the Regional Provident Fund Commissioner. In support of his contentions, he relied upon the decision in Eastern Stores, Madras v. Regional Commissioner, Provident Funds, Madras & Pondicherry States 1974 LA B.I.C. 699 (V. 7C 154). Mr. Jena, learned counsel appearing for the opposite party vehemently contended that the writ application is liable to be dismissed on the ground that the Assistant Provident Fund Commissioner, who issued the letter (Annexure - 2) is not a party before this Court.
Mr. Jena, learned counsel appearing for the opposite party vehemently contended that the writ application is liable to be dismissed on the ground that the Assistant Provident Fund Commissioner, who issued the letter (Annexure - 2) is not a party before this Court. He further contended that during the relevant period, the Assistant Provident Fund Commissioner who passed the so-called speaking order was not vested with the power to hear disputes concerning an establishment under Section 1(3) of the Act. It is the Regional Provident Fund Commissioner, Enforcement & Recovery, who was empowered by the Central Office Circular to decide such disputes. Unfortunately, the dispute of the petitioner - establishment was heard and decided by an Assistant Provident Fund Commissioner, who had no jurisdiction at the relevant time. Subsequently, the irregularity came to the notice of the appropriate authority, and as it was a void order, the Regional Provident Fund Commissioner (Enforcement & Recovery) recalled the order passed under Section 7-A by his order dated June 9, 1999 and directed for fresh hearing. Therefore, there is no irregularity or illegality committed by the Commissioner. Lastly, he submitted that the authorities have power to recall or review their own orders. Perused the petition, counter, rejoinder, the decision cited by the petitioner and different provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952. The crux of the case is whether the Provident Fund Commissioner has power to review or recall his order after ratification by the Commissioner. It is a matter of common knowledge that if a statutory authority wants to reexamine a concluded matter, it assumes the role of reviewer in law. Unless and until the statute under which it functions authorizes it expressly or by necessary implication to review such matter under certain circumstance or situation, it cannot assume such power suo motu and set at naught the earlier concluded order. Section 7-B of the Act provides for review of the order passed under Section 7-A of the Act.
Unless and until the statute under which it functions authorizes it expressly or by necessary implication to review such matter under certain circumstance or situation, it cannot assume such power suo motu and set at naught the earlier concluded order. Section 7-B of the Act provides for review of the order passed under Section 7-A of the Act. The said Section 7-B is quoted below : "7-B. Review of orders passed under Section 7-A(1) Any person aggrieved by an order made under sub-section (1) of Section 7-A, 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 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." xx xx xx A bare reading of the above provision makes it crystal clear that such officer may on his own motion review his order if it is satisfied that it is necessary to do so. In the instant case, 7-A order has been passed by the Assistant Provident Fund Commissioner which was ratified by the Commissioner, From the counter it reveals that the order was passed by the Commissioner with a direction to the petitioner to appear before him with all the documents, which was communicated to the petitioner through the Assistant Provident Fund Commissioner. But in Annexure - 2, no reason has been assigned as to the satisfaction of the authority for such recall. In other words, in the said letter, there is no subjective satisfaction of the authority to recall the order dated June 9, 1999. Thus, there is non-compliance of Section 7-B proviso.
But in Annexure - 2, no reason has been assigned as to the satisfaction of the authority for such recall. In other words, in the said letter, there is no subjective satisfaction of the authority to recall the order dated June 9, 1999. Thus, there is non-compliance of Section 7-B proviso. The decision in Eastern Stores, Madras v. Regional Commissioner, Provident Funds, Madras & Pondicherry States (supra) cited by the petitioner is not applicable to the present case since Section 7-B incorporated in the statute in the year 1997. For the above reason, this Court quashes the order under Annexure - 2 and remits the matter back to the authorities for passing a reasoned order. The writ application is accordingly disposed of by remitting the matter back to the statutory authority with direction to pass a reasoned order afresh within two months from the date of receipt of this order. Requisites for communication of the order be filed within a week.