Allowed

M/S Mars Mountain Security Ser v. the Union of India and Ors.

Patna HC15 Apr 2011CWJC/6065/2011

Case brief

AI extract

What is this about?

Writ petition challenging an appellate order declining jurisdiction over a review application. The court set aside the rejection order, finding the petitioners' delay in filing appeal was due to a bona fide mistake attributable to the authorities. The court directed the petitioner to file an appeal before the Tribunal.

What did the court decide?

The order declining review jurisdiction set aside; petitioner directed to file appeal within 60 days; Tribunal directed to dispose appeal within three months without examining limitation.

M/S Mars Mountain Security Ser Vs the Union of… — Pension and Retirement Benefits | Patna HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6065 of 2011 M/S MARS MOUNTAIN SECURITY SERVICE PRIVATE LIMITED . Versus

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THE UNION OF INDIA & ORS .

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For the Respondents No.1 to 4:Mr. R.S. Pradhan, Advocate For the Respondent No.5:Mr. Subodh Prasad Singh, Advocate -----------

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15.04.2011 Heard learned counsel for the petitioner, for the Provident Fund Authorities and for the Syndicate Bank.

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The petitioner is aggrieved by the order dated 29.4.2010 passed in exercise of powers under Section 7C of the Employees Provident Fund and Miscellaneous Provisions Act 1952 (hereinafter referred to as the E.P.F.M.

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Act), as also the order dated 22.2.2011 passed on an application for Review preferred under Section 7B of the E.P.F.M. Act against the former.

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Learned counsel for the petitioner submits that the original assessment under Section 7A of the E.P.F.M. Act was done on 6.5.2008 by a considered and reasoned order. The order dated 29.4.2010 does not reflect any material of a nature provided for under Section 7C of the E.P.F.M. Act to justify reopening of the proceedings and an order for reassessment. The authorities themselves in the order stated that the re-determination was being done exparte in exercise of powers under Section 7A (3a). The petitioner therefore bona fide preferred a Review Application under Section 7B as otherwise he may have

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availed his remedy of Appeal within time under Section 7 I. The impugned order dated 22.2.2011 does not consider this aspect of the matter. In view of the aforesaid facts, it was obligatory for the authorities to decide the applicability of Section 7C in context of the materials noticed in the order dated 29.4.2010 as the ground was specifically raised in the Review Application.

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Learned counsel for the Provident Fund Authorities submits from the order dated 29.4.2010 that despite three opportunities, the petitioner did not respond or appear in the reassessment proceeding. In his Review Application dated 5.5.2010 as also in the writ petition no grounds have been mentioned as to why the petitioner refused to participate in the reassessment proceedings. The proper remedy for the petitioner was to file an Appeal under Section 7 I of the E.P.F.M. Act against the order dated 29.4.2010.

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The Court does not consider it necessary at this stage to go into the legality of the reassessment done under Section 7C by the order dated 29.4.2010 as the petitioner has an alternative statutory remedy of appeal available against the same where the issue can be appropriately adjudicated.

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The Court is however satisfied that the Review Application preferred by the petitioner under Section 7B of

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the E.P.F.M. Act was a bona fide conduct in the belief that there was jurisdiction for the application laid in the impugned order itself when it referred to Section 7A (3a). Therefore if the petitioner was pursuing a wrong remedy under a bona fide belief, which he certainly was, and the ground was attributable to the Provident Fund Authorities also, the petitioner cannot be saddled with the burden of limitation in any proposed appeal against the order of reassessment dated 29.4.2010.

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Rule 7 of the Employees Provident Fund Appeal Tribunal provides for a limitation of 60 days for preferring an Appeal and for condonation of period beyond that for “sufficient cause”. The Court is satisfied that the petitioner has shown “sufficient cause” in not having preferred a statutory Appeal in time.

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The impugned order dated 22.2.2011 declining interference in the review jurisdiction is therefore not sustainable. It is accordingly set aside. If the petitioner files an Appeal within 60 days from today before the Appellate tribunal, let it be considered in accordance with law without going into issues of limitation and disposed off by a reasoned and speaking order preferably within a maximum period of three months from the date of receipt/production of such Memo of Appeal.

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That the petitioner may not have participated in

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the reassessment order dated 29.4.2010 leading to an exparte order, shall not deviate from the responsibility of the Tribunal to decide the legality of the order on its own merit in accordance with law.

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It shall be open for the petitioner to prefer an application under Rule 7(O) of the E.P.F.M. Act read with Rule 7 of the Appellate Tribunal Rules with regard to the statutory deposit required for preferring such Appeal in the facts and circumstances of the case which shall then be decided by the Tribunal itself in accordance with law.

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The application stands allowed.

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P.K

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( Navin Sinha, J.)

M/S Mars Mountain Security Ser v. the Union of India and Ors.

Case brief

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M/S Mars Mountain Security Ser v. the Union of India and Ors.

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