Choithram Hospital and Research Centre, Indore v. Assistant Provident Fund Commissioner, Employees Provident Fund Organization, Indore
2012-01-10
S.K.SETH, S.S.KEMKAR
body2012
DigiLaw.ai
ORDER : Shantanu Kemkar, J. This writ appeal is filed against the order dated 8.2.2011 passed by the Single Bench of this Court in Writ Petition No. 12271/2010. 2. Brief facts necessary for disposal of this writ appeal may be stated, as under:-- The appellant-Hospital and Research Centre had filed the aforesaid writ petition challenging the order dated 28.05.2010 passed by the first respondent-Assistant Provident Fund Commissioner, Indore by which the appellant's objection against re-opening of the case, in which an order was passed u/s 7-A of the Employees Provident Fund Miscellaneous Provisions Act, 1952 (for short, the Act) was rejected. 3. Before dealing with the order impugned in this appeal, it would be appropriate to mention that prior to filing of the aforesaid writ petition, Writ Petition No. 5300/2008 was filed by the appellant, which was disposed of with liberty to the appellant to seek appropriate remedies against the orders dated 27.11.2007 and 11.08.2008. Thereafter, alleging inaction on the reply submitted by the petitioner to the notice dated 02.06.2008 issued by the Assistant Provident Fund Commissioner, Indore in exercise of his powers u/s 7-C of the Act, the appellant filed Writ Petition No. 9329/2009. The said writ petition was disposed of on 24.12.2009, directing the respondent No. 1 to decide the matter pending before him in pursuance of the notice dated 02.06.2008 and the appellant's reply dated 14.07.2008 as expeditiously as possible. Thereafter, in pursuance of the said directions issued by this Court, the order dated 28.05.2010 was passed by the first respondent, rejecting the appellant's objection about the jurisdiction to reopen the case u/s 7-C of the Act. 4. It has been argued by Shri S.C. Bagadiya, learned Senior counsel that while passing the order dated 28.05.2010, the first respondent did not disclose as to why the case was re-opened u/s 7-C of the Act. According to him, it was necessary for the first respondent to have satisfied that there was omission or failure on the part of the appellant to make any document/report available or to disclose fully and truly all material facts necessary for 3 determination or any amount so due for any period has escaped his notice and in consequence of information, he has reason to believe that any amount to be determined u/s 7-A or 7-B of the Act has escaped from his determination.
He argued that in the order, which was assailed before the learned writ Court, the satisfaction, as required u/s 7-C of the Act, was missing and in the circumstances, learned writ Court should have remitted the matter back to the first respondent for passing fresh reasoned order in consonance with the provisions contained in Section 7-C of the Act. 5. Shri Anand Pathak, learned counsel appearing for the first respondent, on the other hand, supported the impugned order. 6. The second respondent, who appeared in person, contended that the first respondent has passed the order without affording opportunity of hearing to him and in the circumstances, he submitted that in case the matter is remanded for fresh decision, he may be provided opportunity of hearing, in the Interest of justice. 7. Having considered the submissions made by the learned counsel for the parties and after going through the order dated 28.5.2010 and also the order under challenge passed by the learned Single Judge, we find that the learned Single Judge has not taken into consideration the fact that in the order dated 28.5.2010 impugned before him there was no satisfaction recorded by the first respondent, as was required to have been recorded under provisions of Section 7-C of the Act. In the circumstances, in the absence of reasons in conformity with the provisions contained in Section 7C of the Act, in our considered view, the order dated 28.05.2010 should have been quashed by the learned Single Judge and by not doing so, the learned Single Judge, in our considered view, has committed error warranting interference by this Court in this intra Court appeal. 8. Accordingly, we allow this appeal to the extent that the order dated 28.05.2010 passed by the first respondent and the order dated 08.02.2011 passed by the learned Single Judge impugned in this appeal are quashed and the matter is remitted back to the first respondent to pass fresh order, after giving due opportunity of hearing to the parties before us. The first respondent shall pass the order taking into consideration the provisions contained in Section 7-C of the Act and the legal position in that regard. 9. With the aforesaid observations and directions, the writ appeal stands allowed to the extent indicated above. No order as to costs.