Baby Memorial Hospital, Kozhikode v. Assistant Provident Fund Commissioner, Employees' Provident Fund Organization

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MRS. JUSTICE SHIRCY V. TUESDAY, THE 18TH DAY OF OCTOBER 2016/26TH ASWINA, 1938 WA.No. 1582 of 2014 IN WP(C).1084/2014 AGAINST THE JUDGMENT IN WP(C) 1084/2014 of HIGH COURT OF KERALA DATED 26-09-2014 APPELLANT/PETITIONER: ----------------------- BABY MEMORIAL HOSPITAL INDIRA GANDHI ROAD, KOZHIKODE-673004, REPRESENTED BY ITS MANAGER (FINANCE) A.MOHANAN. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT/RESPONDENT: ------------------------- ASSISTANT PROVIDENT FUND COMMISSIONER EMPLOYEES PROVIDENT FUND ORGANIZATION, SUB REGIONAL OFFICE, BHAVISHYA NIDHI BHAVAN, ERANHIPALAM P.O., KOZHIKODE-673006. R,R BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL R1 BY ADV. SRI.N.N.SUGUNAPALAN (SR.) R1 BY ADV. SMT.T.N.GIRIJA, SC,EPF ORGANISATION THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & SHIRCY V.,JJ.** **==============================** ## **W.A. No. 1582 of 2014** ## **============================== Dated this the 18[th] day of October, 2016** ## **JUDGMENT** ## **Antony Dominic, J.** The appellant herein is a company which has established as a hospital known as Baby Memorial Hospital. The hospital is employing about 1300 employees including trainees and apprentices and is a covered establishment. 2. According to the appellant on 3.3.2012, the respondent conducted an inspection of their establishment, which as already stated, is an establishment covered under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter called 'the Act'). Based on the inspection, they were issued Ext.P2 notice under Section 7A of the Act, alleging that the benefit of coverage was not WA 1582/2014 2 extended to trainees and that was resisted by the appellant contending that the trainees are appointed in terms of the provisions of the Certified Standing Orders and that such trainees are exempted from coverage in view of the provisions contained in Section 2(f) of the Act. They also claimed the benefit of the principles laid down by the Apex Court in **Regional PF Commissioner v. Central Arecanut and Coca Marketing and Processing Coop. Ltd. [ (2006) 2 SCC 381]** . The matter was considered and the respondent passed order accepting the contentions of the appellant. 3. It appears that soon thereafter, the then incumbent in the office of the respondent retired from service and his successor issued Ext.P4 notice dated 18.12.2013. Ext.P4 notice also mentioned Section 7A of the Act and contained the allegations, which were already mentioned in Ext.P2 notice. It was thereupon that the writ petition was filed by the appellant challenging the proceedings pursuant to WA 1582/2014 3 Ext.P4. The respondent justified the proceedings contending that it was initiated under Section 7B of the Act. The matter was considered by the learned single Judge and it was held that it was well within the power of the respondent to have initiated proceedings under Section 7B of the Act. It is this judgment which is under challenge. 4. We heard the learned counsel for the appellant and the learned Senior Counsel appearing for the respondent. The question raised by the learned counsel for the appellant is that having regard to the fact that Ext.P3 order attained finality, it was not open to the respondent to initiate proceedings under Section 7B of the Act. He also contended that Section 7B notice was issued beyond the period of 45 days specified in Clause 79A of the Employees' Provident Funds Scheme, 1952 (hereinafter called 'the Scheme'). Both these contentions were refuted by the learned Senior Counsel appearing for the respondent, making reference to the provisions of Section 7B of the Act and Clause 79A of WA 1582/2014 4 the Scheme. 5. We have considered the submissions made. Admittedly the proceedings pursuant to Ext.P2 notice were initiated in exercise of the respondent's power under Section 7A of the Act and these proceedings have attained finality. Section 7B provides the power of review of orders passed under Section 7A. Reading of the provision shows that the officer who has passed the order under Section 7A has also been conferred with the power to review his order on his own motion, if he is satisfied that it is necessary to do so on any of the grounds enumerated in Section 7A(1) of the Act. Evidently therefore, the power of review is statutorily available to the respondent. Therefore, though it is Section 7A which has been mentioned in Ext.P4, the fact of non-mentioning of power will not dis-entitle the statutory authority to exercise the power. Therefore, we have to uphold the proceedings initiated by Ext.P4. 6. The surviving question is whether the proceedings WA 1582/2014 5 pursuant to Ext.P4 are time barred in view of the provisions contained in Clause 79A of the Scheme. Clause 79A reads as follows: 79A. Filing application for review.- Any person aggrieved by an order made under sub-section (1) of section 7A and who desires to obtain a review of such order may apply for a review of that order, as provided in sub-section (1) of section 7B of the Act in Form 9 to the officer who passed such order: Provided that no application for review of an order will be entertained by the concerned officer, unless the application for review is submitted within 45 days from the date of making such order.” From a reading of the above clause, it is clear that it is only an application for review made by the person aggrieved by an order under Section 7A, who necessarily cannot be the officer who passed the order. In other words, the time limit under clause 79A is inapplicable to the proceedings initiated by an officer on his own motion in exercise of his power under Section 7B. True, even if no time limit is prescribed, it is necessary that the power under Section 7B of the Act WA 1582/2014 6 should be exercised within a reasonable time. In so far as this case is concerned, while Ext.P3 order was communicated on 7.1.2013, the proceedings evidenced by Ext.P4 were initiated on 18.12.2013. In the absence of any statutorily prescribed period of limitation, the question whether Ext.P4 was initiated beyond a reasonable period and whether as a result any prejudice has been caused to the appellant are questions of fact and are to be proved by the appellant in the course of enquiry by producing evidence and other materials. Therefore, we leave it open to the appellant to urge their contentions that Ext.P4 was initiated beyond a reasonable time and for that reason the same is unsustainable. 7. Be that as it may, we have to necessarily uphold the contentions of the respondents that Ext.P4 is not beyond the jurisdiction as contended by the appellant. Consequently, the view taken by the learned single Judge cannot be interfered with. Therefore, the appeal is dismissed. WA 1582/2014 7 However, taking note of the pendency of the appeal, we direct that the appellant shall file its reply to Ext.P4 within one month from today. On its receipt, the respondent shall complete the proceedings, within three months thereafter. Such proceedings shall be completed with notice to the appellant and giving them an opportunity to substantiate their contentions. **Sd/ANTONY DOMINIC JUDGE** Sd/- **SHIRCY V. JUDGE** **ks.** True copy P.S. (Hr.Gr.)To Judge