Baby Memorial Hospital vs Assistant Provident Fund Commissioner

K. Vinod Chandran, J.—The petitioner is aggrieved by the notice issued under Section 7B of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as "the EPF Act"). The petitioner''s specific contention is that the very question raised in Ext. P4 was already considered by Ext. P3 order. A notice was issued under Section 7A as indicated in Ext. P2 and after consideration of the case, an order was passed by Ext. P3 specifically finding that the trainees/apprentices appointed under the Standing Orders of the establishment are not required or entitled to become members of the EPF fund. The learned counsel appearing for the petitioner would contend that Ext. P4 is issued on the very same set of facts, against the very same industrial establishment, for the very same period.

The learned counsel appearing for the petitioner, however, specifically pointed out Section 7B of the EPF Act to contend that there could be a review of orders passed under Section 7A and the proviso also confers suo motu powers on the officer, to so review an order. The learned counsel also submitted that the Assistant Provident Fund Commissioner who passed the order, could not have passed the order, since the jurisdiction is conferred on the Commissioner as per the administrative instructions, such administrative orders clearly indicate that in the case of any establishment having more than 250 employees enquiry should be conducted under Section 7A only by Commissioners of the Employees Provident Fund Organisation.

The learned counsel also emphasise the manner in which earlier proceedings were concluded, to show that, that alone would make a good and sufficient ground for review. A notice was issued by Ext. P2 on 24.12.2004, summoning the petitioner for an enquiry, under Section 7A of the Act, and the date fixed for appearance was three days later, on 27.12.2012. On 27.12.2012 itself, the petitioner is said to have appeared before the authority and the authority has concluded the proceedings and issued Ext. P3 order on the very same day. The counter affidavit of the respondents also show that the matter has since been referred to the Vigilance department and proceedings are pending against the officer, who is said to have retired, four days after the passing of the order, on 31.12.2012.

It is to be noticed that the proviso to Section 7B confers a power of review on the officer who has issued an order under Section 7A of the Employees Provident Fund Act. The learned counsel appearing for the petitioner would contend that paragraph 79 of the Employees Provident Funds Scheme however, provides a limitation of 45 days from the date of the order.

Paragraph 79 of the scheme provides for a limitation period only with respect to applications for review and does not place any fetter of limitation on the suo motu powers of the officer, specifically conferred on the proviso to Section 7B. In any event, going by the facts disclosed in the above case, the officer who issued the order retired four days after the order was passed and the next incumbent in that office on noticing the illegality perpetrated; exercised the suo motu powers, he was conferred with, under the proviso to Section 7B. In such circumstances, it cannot be said that the orders passed are beyond the period of limitation, since the limitation is in making an application and not passing of orders.

With respect to the question of jurisdiction, since no administrative orders are produced, the said question would be left open. It is made clear that this court has not considered the facts or law deliberated upon in Ext. P3 order nor pronounced on merits with respect to the allegations raised. Since the time indicated in Ext. P4 has expired and there was a stay of proceedings by this court, on admission, the petitioner would be present before the concerned officer on 14.10.2014 at 11 a.m. and the concerned officer or the office of the Assistant Commissioner shall give a date with due acknowledgement for affording an opportunity of personal hearing, and finalise the issue expeditiously.

Writ Petition is dismissed with the above directions.