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2012 DIGILAW 523 (AP)

Aparna Constructions, Hyderabad v. Reg P. F. Commissioner, Hyderabad

2012-06-19

L.NARASIMHA REDDY

body2012
Judgment :- The respondents initiated proceedings against the petitioner as regards contribution of provident fund for contract employees engaged by it. On receiving the notice, the petitioner submitted its representation stating that the contract labour were supplied by various employers and unless it is found that the contribution of provident fund was deducted from the salaries of the employees by their employers, the petitioner cannot be required to deposit the same. Respondent No.1 passed an order, dated 27.10.2011, holding that the petitioner is liable to deposit a sum of Rs.1,26,08,436/-. The petitioner filed W.P.No.29797 of 2011 pleading inter alia that the order, dated 27.10.2011, under Section 7A of the Employees’ Provident Funds & Miscellaneous Provisions Act, 1952 (for short ‘the Act’) was passed on the basis of a report, dated 05.10.2011, submitted by the Enforcement Officers, but the copy thereof was not furnished to it at all. This Court disposed of the writ petition on 09.11.2011, leaving it open to the petitioner to avail the remedy under Sections 7A (4) and 7B of the Act. After such remand, respondent No.1 passed orders, dated 01.06.2012, rejecting the application of the petitioner for setting aside the order, dated 27.10.2011. Hence, this writ petition. Sri G.Vidyasagar, learned counsel for the petitioner, submits that the main ground urged on behalf of the petitioner was that the order, dated 27.10.2011, is ex parte in nature inasmuch as the report, dated 05.10.2011, submitted by the Enforcement Officers, though relied upon while passing the order, dated 27.10.2011, was not furnished to the petitioner at all. He further submits that furnishing the copy of the report in the proceedings instituted under Section 7A (4) of the Act does not cure the serious defect. Sri R.N.Reddy, learned Standing Counsel for the respondents, on the other hand, submits that this Court refused to set aside the order, dated 27.10.2011, but left it open to the petitioner to avail the remedy under Section 7A (4) of the Act and that respondent No.1 has dealt with the matter in detail that too after furnishing the report submitted by the Enforcement Officers. He contends that whatever may have been the grievance of the petitioner on account of non-furnishing of the report in the earlier round of proceedings, it cannot plead the same ground once the report was furnished. He contends that whatever may have been the grievance of the petitioner on account of non-furnishing of the report in the earlier round of proceedings, it cannot plead the same ground once the report was furnished. The petitioner suffered an order, dated 27.10.2011, whereunder the obligation to pay a sum of Rs.1,26,08,436/-was fastened upon it. It may be true that the said order was passed after issuing notice to the petitioner. The fact, however, remains that though extensive reference was made to a report, dated 05.10.2011, submitted by the Enforcement Officers, copy thereof was not furnished to it and ventilating the said grievance, a writ petition was filed. Normally, in such cases, the orders are set aside by this Court and matters are remanded to the primary authority for fresh consideration. However, since there existed a remedy under Section 7A (4) of the Act, which is similar to the one under Order 9 Rule 13 C.P.C., it was left open to the petitioner to avail the same. Accordingly, the petitioner submitted application under Section 7A (4) of the Act before respondent No.1. Since the ground urged by the petitioner is that the order, dated 27.10.2011, was passed on the basis of the report, dated 15.10.2011, and the copy of the report was not furnished to the petitioner, the only course open to respondent No.2 was to set aside the order, dated 27.10.2011, and to take up hearing of the matter afresh. Instead, he tried to justify and uphold the order, dated 27.10.2010, by furnishing a copy of the report, dated 15.10.2011, to the petitioner while hearing the application filed under Section 7A (4) of the Act. Such a course is contrary to the very spirit of the said provisions of law. Though the authority which passed the order, dated 27.10.2011, and the one which is required to pass orders afresh, is one and the same, the effective adjudication cannot be said to have taken place unless the orders, dated 01.06.2012 and 27.10.2011, are set aside. Hence, the writ petition is allowed and the impugned order as well as the one, dated 27.10.2011, passed by respondent No.1 are set aside. Now that the report, dated 15.10.2011, is furnished to the petitioner, the matter shall be heard afresh and respondent No.1 shall pass orders under Section 7-A (1) of the Act after giving an opportunity of being heard to the petitioner. Now that the report, dated 15.10.2011, is furnished to the petitioner, the matter shall be heard afresh and respondent No.1 shall pass orders under Section 7-A (1) of the Act after giving an opportunity of being heard to the petitioner. It is needless to mention that he shall decide the matter uninfluenced by any observations made in the two orders that were set aside. There shall be no order as to costs. The miscellaneous petition filed in this writ petition also stands disposed of.