Allowed

Abdul Kareem v. Assistant Provident Fund Commissioner

Kerala HC20 Dec 2012WP(C)/23938/2012

Case brief

AI extract

What is this about?

This writ petition challenged an exparte order determining provident fund dues under the EPF Act. The High Court allowed the review petition, set aside the exparte order and subsequent dismissal of review, and directed the respondent to afford the petitioner an opportunity to produce documents excluding high-wage employees within three months.

What did the court decide?

Review petition allowed, impugned orders set aside, decision remanded with direction to consider petitioner's case after allowing production of documents within three months.

Abdul Kareem Vs Assistant Provident Fund… — Pension and Retirement Benefits | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID

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THURSDAY, THE 20TH DAY OF DECEMBER 2012/29TH AGRAHAYANA 1934

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WP(C).No. 23938 of 2012 (N) ---------------------------

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PETITIONER(S):

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ABDUL KAREEM, AGED 37 YEARS, S/O.HUSSAN, KALAMPARAMBIL HOUSE, MANAGING PARTNER, M/S.SEEMA SILKS, CHANDAPPADI, PONANI (PO) MALAPPURAM DISTRICT, PIN - 679 577.

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BY ADVS.SRI.T.K.SAIDALIKUTTY

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SRI.M.I.JOHNSON

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SRI.T.K.MOIDEEN KUTTY

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RESPONDENT(S):

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THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, SUB REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, CALICUT, PIN - 673 006.

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REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, SUB REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, CALICUT, PIN - 673 006.

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BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL, SC, P.F.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DSV/-

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WP(C).No. 23938 of 2012 (N)

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APPENDIX

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PETITIONER(S) EXHIBITS :

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EXHIBIT P1. COPY OF THE RECONSTRUCTED PARTNERSHIP FIRM DATED 06.07.2011.

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EXHIBIT P2. COPY OF THE MINUTES OF THE MEETING DATED 30.06.2012 SIGNED BY ALL THE PARTNERS.

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EXHIBIT P3. COPY OF THE PROCEEDINGS/ORDER OF 1ST RESPONDENT DATED 30.04.2012.

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EXHIBIT P4. COPY OF THE NOTICE DATED 14.06.2012 SENT BY THE 1ST RESPONDENT.

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EXHIBIT P5. COPY OF THE MUSTER ROLL OF PETITIONER FIRM FOR MAY 2011.

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EXHIBIT P6. COPY OF THE WAGE REGISTER OF PETITIONER FIRM FOR MAY 2011.

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EXHIBIT P7. COPY OF THE ORDER ISSUED BY 2ND RESPONDENT DATED 19.07.2012 INTIMATED TO VIJAYA BANK, PONANI BRANCH.

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EXHIBIT P8. COPY OF A/C NO.20310030100025 OF VIJAYA BANK, PONANI BRANCH.

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EXHIBIT P9. COPY OF THE REVIEW PETITION DATED 04.09.2012 FILED BY THE PETITIONER.

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EXHIBIT P10. COPY OF THE ORDER DATED 24.09.2012 PASSED BY THE 1ST RESPONDENT.

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RESPONDENTS' EXHIBITS: NIL

// TRUE COPY //

P.A. TO JUDGE

DSV/-

HARUN-UL-RASHID,J.

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W.P.(C) No.23938 of 2012

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Dated this the 20^th day of December 2012

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JUDGMENT

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The writ petition is filed seeking a direction directing the first respondent to consider Ext.P9 review petition afresh.

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Heard the learned counsel for the petitioner and learned Standing Counsel for the respondents.

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Ext.P3 is the copy of the proceedings under section 7A of the Employees Provident Funds and Miscellaneous Provisions Act 1952 dated 30.4.2012. Petitioner did not attend the enquiry at the date originally fixed on 7.2.2012 or the adjourned dates. Therefore, the first respondent issued proceedings determining the dues exparte on the basis of the wages reported by the Enforcement Officer. Petitioner produced Ext.P4 copy of the notice.

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Petitioner filed review petition under section 7 B of the Act before the first respondent. The first respondent passed Ext.P10 proceedings dismissing the petition for review under section 7 B of the Act finding that no valid grounds are made out for entertaining the review petition. The first respondent noticed the fact that the petitioner did not contest 7A proceedings. It is

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w.p.(c) No.23938/2012

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stated that enquiry initiated on 12.1.2012 was finalised on 16.4.2012 after giving four opportunities to the petitioner. The petitioner did not represent the case and did not produce documents. The first respondent determined the dues on the basis of the available documents. The first respondent held that the review petition did not satisfy any criteria laid down viz;discovery of a new and important matter which could not be produced at the time of enquiry even after exercise of due diligence.

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In the absence of any valid ground for review, the first respondent is justified in passing Ext.P10 order but considering the fact that the petitioner could not contest the matter on merits, this Court is of the view that a chance can be given to the petitioner for production of the documents to substantiate his case that two employees are excluded employees as they are getting more than Rs.6,500/- per month as wages.

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In the review petition filed marked as Ext.P9, the petitioner explained the reason for not producing the relevant documents and in Ext.P3, it is stated that 7A order has been passed exparte and there was no occasion for the first respondent to verify the documents. It is stated that the dues were determined only on the basis of the wages reported by the Enforcement Officer only.

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w.p.(c) No.23938/2012

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Learned Standing Counsel for the respondent seriously contested the matter and contended that the review petition was considered on merits and found that no valid grounds are made out for allowing the same and the circumstance under which Ext.P4 communication issued was also explained in detail.

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In the facts and circumstance, this Court is of the view that the petitioner could be given a chance for production of documents to substantiate his case. Affording an opportunity to the petitioner who could not contest the matter on merits, will serve ends of justice. In the circumstance, Ext.P9 review petition is allowed. The order under review dated 30.4.2012 is set aside. Ext.P3 proceedings is set aside. There will be a direction to the first respondent to consider and pass appropriate orders afresh. The proceedings shall be completed within a period of three months from the date of receipt of a copy of the judgment.

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Sd/- HARUN-UL-RASHID JUDGE

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al/-

Abdul Kareem v. Assistant Provident Fund Commissioner

Case brief

What is this about?

What did the court decide?

Abdul Kareem v. Assistant Provident Fund Commissioner

Case brief

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What did the court decide?

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