M. Abdul Hakkim v. Employees' Provident Fund Appellate Tribunal, Regional Provident Fund Commissioner, and Enforcement Officer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **MONDAY, THE 4TH DAY OF JANUARY 2016/14TH POUSHA, 1937** **WP(C).No. 5355 of 2011 (T) ---------------------------** ## **PETITIONER :** - **------------------** - **M. ABDUL HAKKIM,S/O. LATE MUHAMMED KUNJU, PROPRIETOR, ARABIAN CASHEW EXPORTS, KILIKOLLUR, KOLLAM.** **BY ADVS.SRI.B.MOHANLAL SRI.T.PRASAD** **RESPONDENTS :** **1. THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, CORE-2, 4TH FLOOR SCOPE MINAR, LAXMI NAGAR, NEW DELHI-1100092.** **2. THE REGIONAL PROVIDENT FUND COMMISSIONER, THE EMPLOYEES PROVIDENT FUND ORGANIZATION, SUB REGIONAL OFFICE, MANNANIA COMPLEX, CHINNAKKADA, KOLLAM-691001.** **3. THE ENFORCEMENT OFFICER,THE EMPLOYEES, PROVIDENT FUND ORGANIZATION, SUB REGIONAL OFFICE, MANNANIA COMPLEX, CHINNAKKADA, KOLLAM-691001.** **R2 & R3 BY SRI.V.V.SURESH,SC,EPF.ORGANISATION** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **WP(C).No. 5355 of 2011 (T)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **P1: COPY OF THE CONTRIBUTION PAID BY THE PETITIONER BEFORE THE R2 FOR THE PERIOD 8/2007.** - **P1(a): COPY OF THE CONTRIBUTION PAID BYT THE PETITIONER BEFORE THE R2 FOR THE PERIOD /2007.** - **P1(b): COPY OF THE CONTRIBUTION PAID BY THE PETITIONER BEFORE THE R2 FOR THE PERIOD 10/2007.** - **P1(c): COPY OF THE CONTRIBUTION PAID BY THE PETITIONER BEFORE THE R2 FOR THE PERIOD 11/2007.** - **P1(d): COPY OF THE CONTRIBUTION PAID BY THE PETITIONER BEFORE THE R2 FOR ETHE PERIOD 12/2007.** - **P1(e): COPY OF THE CONTRIBUTION PAID BY THE PETITIONER BEFORE THE R2 FOR THE PERIOD 01/2008.** - **P1(f): COPY OF THE CONTRIBUTION PAID BY THE PETITIONER BEFORE THE R2 FOR THE PERIOD 02/2008.** - **P1(g): COPY OF THE CONTRIBUTION PAID BY THE PETITIONER BEFORE THE R2 FOR THE PERIOD 03/2008.** - **P1(h): COPY OF THE CONTRIBUTION PAID BY THE PETITIONER BEFORE THE R2 FOR THE PERIOD 04/2008.** - **P1(i): COPY OF THE CONTRIBUTION PAID BY THE PETITIONER BEFORE THE R2 FOR THE PERIOD 05/2008.** - **P2: COPY OF THE ORDER NO.KR/KLM/16426/ENF.J(2)/2008 DT 20/11/2008 ISSUED BY THE R2 UNDER SECTION 7A OF THE EMPLOYEES PROVIDENT FUND AND MISCELLANEOUS PROVISIONS ACT.** - **P3: COPY OF THE JUDGMENT IN WPC 6313/2009 DT 26/2/2009 THIS HON'BLE COURT.** - **P4: COPY OF THE STAY ORDER AND THE COPY OF THE D.D.** - **P5: COPY OF THE ORDER IN THE APPEAL A.T.A. NO. 141(72009 F THE R1.** - **P6: COPY OF THE ORDER NO.KR/KLM/16426/ENF.1(2)/2007/14470 DT 20/11/2007 ISSUED BY THE R2.** **RESPONDENT'S EXHIBITS : NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **bp** **K. HARILAL, J. -----------------------------------------------------W.P. (C) No.5355 of 2011-T -----------------------------------------------------Dated this the 4[th] day of January, 2016** ## **JUDGMENT** The petitioner is the Proprietor of 'Arabian Cashew Exports', Kilikollur, Kollam, a covered establishment under the Employees' Provident Fund and Miscellaneous Provisions Act (for short 'the Act'). According to the petitioner, he is properly paying monthly contribution under the Employees' Provident Fund and Miscellaneous Provisions Act and is submitting returns in Form 12-A, without fail. But, to the surprise of the petitioner, the 2[nd] respondent has embarked an enquiry under Sec.7A of the Act, for a period from 08/2007 to 05/2008 and issued notice to the petitioner. He was directed to produce all the **W.P. (C) No.5355 of 2011** -: 2 :- concerned records during the said period and he has produced all the documents. But, the 2[nd] respondent was reluctant to accept the documents produced by the petitioner. Further, it is alleged that the 3[rd] respondent, who filed the report to the 2[nd] respondent, was keeping animosity against the petitioner on the belief that the petitioner had sent certain anonymous complaint against him to the superior authorities and in retaliation of the said vengeance, he has submitted a false report to the 2[nd] respondent and the 2[nd] respondent has commenced enquiry on the basis of that report. It is also alleged that the respondents finalised the proceedings without issuing a copy of the report submitted by the 3[rd] respondent to the 2[nd] respondent and no opportunity was given to him to cross-examine the 3[rd] respondent on the basis of the report submitted by him to the 2[nd] respondent. However, the respondents arbitrarily finalised the proceedings under Sec.7A of the Act and assessed **W.P. (C) No.5355 of 2011** -: 3 :- dues for temporary employees for the period from 08/2007 to 05/2008, by Ext.P2 order. Challenging Ext.P2, though the petitioner had preferred an appeal as ATA No.141(7) of 2009 before the 1[st] respondent, the 1[st] respondent also, without considering the valid contentions raised by the petitioner, passed Ext.P5 order, affirming the assessment made by the 2[nd] respondent in Ext.P2 order. Thus, the legality and propriety of the findings in Exts.P2 and P5 orders are under challenge in this writ petition. 2. Heard the learned counsel for the petitioner in extenso and the learned counsel for the petitioner advanced arguments raising two points. Firstly, according to the petitioner, a copy of the report said to have been filed by the 3[rd] respondent to the 2[nd] respondent was not served on the petitioner. Secondly, no opportunity had been given to the petitioner to cross-examine the 3[rd] respondent on the basis of the report submitted by him to the 2[nd] **W.P. (C) No.5355 of 2011** -: 4 :- respondent. The learned counsel further cited the decision laid down by this Court in W.P.(c) No.10109/11 and submits that the said decision was laid down on a similar set of facts. In view of the submissions made at the Bar, the point to be considered is, whether there is any procedural irregularity or denial of natural justice to the petitioner in the impugned orders under challenge. 3. Going by Ext.P2 order, it is seen that the 2[nd] respondent has specifically made an observation that a copy of the report allegedly submitted by the 3[rd] respondent to the 2[nd] respondent was served to the petitioner. I do not find any reason to disbelieve the said observation in the absence of any material contrary to the same. As regards the second point that no opportunity had been given to the petitioner to cross-examine the 3[rd] respondent on the basis of the report allegedly sent by him to the 2[nd] respondent, there is no observation or finding as to whether any **W.P. (C) No.5355 of 2011** -: 5 :- opportunity had been given to the petitioner to crossexamine the 3[rd] respondent on the basis of the report allegedly sent by him to the 2[nd] respondent. Indisputably, the proceedings were initiated against the petitioner on the basis of the report allegedly filed by the 3[rd] respondent to the 2[nd] respondent and it is his finding in the report that the petitioner had employed temporary workers without bringing them under the provisions of the said Act and Scheme. This Court had an opportunity to consider the similar situation in W.P.(c) No.10109/11; wherein this Court relying on the decision reported in Natwar Singh v. Director of Enforcement and another [(2010) 13 SCC 255], held that the right to fair hearing is a guaranteed right and that nothing should be used against a person, which has not been brought to his notice. It was also held that the concept of fairness requires the adjudicating authority to furnish the documents and to give an opportunity to cross- **W.P. (C) No.5355 of 2011** -: 6 :- examine the officer who prepared the report and submitted the same before the higher authorities. 4. As I have held earlier, going by Ext.P2, it is not discernible whether an opportunity had been given to the petitioner to cross-examine the 3[rd] respondent, who allegedly submitted the report before the 2[nd] respondent. No document has been produced before this Court, in this writ petition, to show that an opportunity had been given to the petitioner to crossexamine the 3[rd] respondent, who has allegedly submitted the report to the 2[nd] respondent. In my view also, denial of an opportunity to cross-examine the officer, who prepared the report, is fatal and the proceedings to that extent is vitiated by denial of natural justice. 5. In the above view of the matter, Exts.P2 and P5 orders will stand quashed and the matter will stand remitted back to the 2[nd] respondent to pass orders afresh after affording an opportunity to cross- **W.P. (C) No.5355 of 2011** -: 7 :- examine the 3[rd] respondent, within a period of three months from the date of receipt of a copy of this judgment. This writ petition is disposed of accordingly. Sd/- **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge