Magadh Engineering Works v. Provident Fund Commissioner, E. P. F. O.
2009-08-20
D.G.R.PATNAIK
body2009
DigiLaw.ai
JUDGMENT : Heard Mr. Kalyan Roy, learned counsel for the petitioner and Mrs. Shubha Jha, learned counsel for the Respondents. 2. Petitioner, in this writ application, is a Registered Establishment, engaging workers and has the liability to deposit the Provident Fund Contributions of the workers. 3. Challenge in this writ application, is to the order dated-24.09.2007, passed by the Respondent No. 2, namely, the Assistant Provident Fund Commissioner, Employee Provident Fund Organization, Bhagirath Complex, Karamtoli, P.O. & District-Ranchi, passed under Section 7 A of the E.P.F. & M.P. Act whereby the petitioner was directed to deposit a sum of Rs. 6,96,505/-towards the arrears of contributions alongwith interest to the extent of Rs.2,19,265/-upon the arrears of contributions for the period May, 2003 to July, 2006. 4. The petitioner had preferred a Review application under the provisions of Section 7 B of the Act. The Review application was dismissed by order dated-03.12.2007, by the concerned authority. 5. The petitioner had filed an amendment application, praying for amending his writ application in order to incorporate the order of rejection of the review application and the corresponding prayer for quashing the same. The amendment application was allowed by the order of this Court. 6. The main ground advanced on behalf of the petitioner is that while considering the matter under Section 7 A as also under Section 7 B of the Act, both the concerned Authorities had committed a serious error in as much as, the entire set of documents including the Challans by which the petitioner had deposited various sums of money, which, taken together, would amount to more than Rs. 9 lakhs, has not been taken into account. Learned counsel would explain that even though the demand was for a total sum of Rs. 8.50 lakhs but against that, the petitioner has already deposited more than Rs. 9 lakhs and thereby, had deposited around Rs. 82,000/-in excess of what was due and payable by him. Learned counsel adds further that in the Review application filed, the petitioner had specifically invited attention to the aforesaid facts that a sum of Rs. 82,000/-has been paid in excess of the amount and this amount ought to have been adjusted/refunded to the petitioner.
82,000/-in excess of what was due and payable by him. Learned counsel adds further that in the Review application filed, the petitioner had specifically invited attention to the aforesaid facts that a sum of Rs. 82,000/-has been paid in excess of the amount and this amount ought to have been adjusted/refunded to the petitioner. The Review authority, as per learned counsel’s submissions, did not consider the grounds stated in the Review application and without granting any opportunity to explain the matter and to invite the concerned authority’s attention to the relevant facts, which otherwise, would have absolved the petitioner from his liability, has passed the impugned order. 7. Per contra, learned counsel for the Respondents would vehemently oppose the grounds advanced by the petitioner and would contend that from perusal of the order passed in the Review application, it would be apparent that the same was passed on considering the merits of the case and on the basis of the documents, which was furnished by the petitioner. Learned counsel adds that the petitioner was given ample opportunity to furnish all the relevant documents and such opportunity was available to him even at the stage of filing of the Review application but since he did not chose to file any further document, the reviewing authority had proceeded to consider the review application and the grounds stated, therein, on the basis of the materials available on record and after discussing the entire materials had rejected the petitioner’s review application. As such, there is no perversity or impropriety in the impugned orders. Learned counsel adds further that the petitioner has alternative statutory remedy of appeal before the Appellate Tribunal under Section 7 (I) of the Act and without availing the alternative remedy, the petitioner cannot possibly invoke the writ jurisdiction of this Court. 8. Taking support from the contentions of Mrs. Benani Verma, who is also the counsel for the Respondent-E.P.F.O., learned counsel adds that the petitioner’s contention that he ought to have been given an opportunity of being heard by the concerned authority, is misconceived in view of the fact that it is only when the concerned authority proceeds to grant the review application, he is required to issue prior notice to the parties and offer them opportunities of being heard.
In case, where the concerned authority proceeds to reject the review application, there is no requirement on his part to grant any opportunity of hearing to the petitioner. 9. After hearing the learned counsel for the parties and also going through the impugned order of the Reviewing authority, it appears that for appreciating the merits and the contentions raised by the petitioner, the Review authority had examined all the records available in the office and by making an observation that the petitioner’s establishment did not produce the required documents, except the details of the wage figure disbursed to the workmen for the period from May, 2003 to July, 2006 has proceeded to draw adverse inference against the petitioner. It was further observed that the calculation has been made on the basis of the wage figure provided by the Establishment in course of enquiry and also on the basis of the specified V.D.A. rate. Furthermore, the deposits made by the petitioner have been assessed on the basis of the return submitted by the petitioner’s establishment. 10. The contention of the petitioner is that it had submitted all the relevant Challans by which the deposits/contributions were made from time to time and these Challans were not looked into by the Reviewing authority, and had the petitioner been given opportunity of explaining, it would have appropriately explained the matter. 11. As it appears from the impugned order passed in the Review application, the petitioner has not been called upon to offer his explanation before rejecting the application for review. 12. The contention of the learned counsel for the Respondents that the Reviewing authority had no obligation to offer any opportunity to the petitioners of being heard or to explain the matters, does not appeal to reason and appears to be misconceived. Merely because, the provisions under Section 7 B of the Act, specifically provides that if the application for review is granted, then before granting, the party should be given prior notice and be heard and because such corresponding requirement has not been mentioned specifically in case where the authority concerned proposes to reject the application, it does not lay down any principle that the petitioner should be deprived of an opportunity of being heard.
The principles of equity and natural justice do certainly apply and would demand that before passing any order, which lead to civil consequences adverse to the interest of the petitioner, a reasonable opportunity has to be given to him to explain his case before passing any such order. I am satisfied from the submissions made by the learned counsel for the petitioners that reasonable opportunity of hearing has not been given to him by the Reviewing authority before passing the impugned order on the Petitioner’s Review application. Accordingly, this writ application is allowed. The impugned order of the Reviewing authority dated-24.09.2007 passed on the Review application of the petitioner is hereby set aside. Accordingly, I remand this matter to the Reviewing authority for passing a fresh order on the review application filed by the petitioner. The petitioner shall appear before the Reviewing authority within 15 days from the date of this order, whereafter the Reviewing authority shall fix and communicate an appropriate date to enable the petitioner to submit its explanations/grounds and thereafter pass an appropriate, speaking and reasoned order in accordance with law on the Review application. 13. Let a copy of this order be given to the learned counsel for the parties.