Nityanand Restaurant and Bar vs The Regional Provident Fund Commissioner and Others

S.C. Dharmadhikari, J.—The Petitioner is an establishment which is sought to be covered by the Employees'' Provident Fund and Miscellaneous Provisions Act, 1952. The Petitioner''s grievance is that its staff strength does not exceed the required number and therefore, it is not covered by the Act. That was the case which was set up before the Regional Provident Fund Commissioner,  however, without hearing the Petitioner, he passed the order adverse to the Petitioner''s interest on 20.6.2008. The matter was carried in appeal and even the appeal was decided ex-parte.

From perusal of the order of the Regional Provident Fund Commissioner, one serious aspect has been noticed. The order carries the date 20.6.2008, however, it is stated that, that is the date on which the order was communicated to the Petitioner but the order was passed on 26.11.2007. The hearing was concluded sometime in November, 2007. In the absence of the Petitioner, the order has been made in November, 2007. However, it has not been communicated till 20.6.2008. There is no reason why such orders which affect the parties adversely should not be communicated for more than six months. Right of appeal conferred by the statute is sought to be defeated by such exercise of the authorities. They ought to communicate the orders moment they are made. First of all, if they have practice of delivering the judgments in presence of the parties, the copies thereof should be forwarded within a reasonable period. If they reserve the orders, they should declare it later on and communicate the same promptly. In the present case, the order has not been communicated for more than six months and that by itself may lose legal efficacy.. This aspect has not been noted by the Appellate Authority at all. In such circumstances, both orders deserve to be quashed and set aside. They are, accordingly, quashed and set aside.

The Petitioner will now appear before the Regional Provident Fund Commissioner, Sandra (East) on 7th July, 2011 at 10:30 a.m. and if the Petitioner so appears either in person or through its representative or Advocate, the authority shall hear him and pass a reasoned order afresh as expeditiously as possible and within a period of two weeks from the date of conclusion of the hearing. It is clarified that the Regional Provident Fund Commissioner is not obliged to conclude the hearing on 07th July, 2011 itself, but to enable the parties to put forth their case effectively, he may adjourn the proceedings. But, from the last adjournment, he should deliver and communicate the order, within two weeks as directed above. Each of the contentions raised in the petition are kept open. While deciding the matter afresh, the Regional Provident Fund Commissioner should not be influenced by the earlier order or that of the Appellate Authority.

The Writ. Petition is, accordingly, allowed. No costs.