Karnataka High Court
Jss Maha Vidya Peetha vs The Assistant Provident Fund ... on 17 July, 2017
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JULY, 2017
BEFORE
THE HON'BLE Mr. JUSTICE L. NARAYANA SWAMY
WRIT PETITION NO. 39697 / 2010 (L - PF)
BETWEEN:
JSS Mahavidya Peetha
Ramanuja Road,
Mysore - 570 004.
Represented by its
Executive Secretary
Sri.B.N.Betkerur ... Petitioner
(By Sri.Somashekar, Advocate for S.N.Murthy Associates)
AND:
The Assistant Provident Fund
Commissioner,
Employees Provident Fund
Organization,
Sub Regional Office,
No.12, Regency Premises,
Lokaranjan Mahal Road,
Mysore - 570 010. ... Respondent
(By Smt.Sumangala A.Swamy, Advocate)
This Writ Petition is filed under Articles 226 and
227 of the Constitution of India praying to quash the
order dated 20.08.2010 in No.ATA No.431(6) 2003
passed by the EPF Appellate Tribunal, New Delhi at
Annexure - L to the writ petition and to quash the order
dated 22.04.2002 passed by the Assistant Provident
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Fund Commissioner, Mysore at Annexure - J to the writ
petition.
This petition coming on for hearing this day, the
Court made the following:
ORDER
The petitioner has eleven institutions under its umbrella. The institutions of the petitioner are educational institutions and its employees are governed under grant-in-aid code. Apart from the persons who have been covered under grant-in-aid namely, the persons appointed on contract basis, casual labour etc., they are governed under the provisions of Employees' Provident Funds and Miscellaneous Provisions Act 1952 (in short 'EPF and MP Act' or 'the Act'). The institutions of the petitioner are excluded for the purpose of applicability of the EPF Act under Section 16(1)(b) of the Act. There was proceedings initiated in No.KN/PF/MDN- I/744/88 on the file of Office of the Enforcement Officer, Employees' Provident Fund, Mysore Division, Mysore in which it was ordered that the petitioner's management will continue to comply with the provisions of the EPF 3 and MP Act and the schemes framed there under in respect of employees, who are engaged through contractors or in respect of employees, who are not covered under grant-in-aid code under the code number allotted to the said Engineering College. The petitioner management need not have to comply with the provisions of EPF and MP Act and the schemes in respect of employees who are admitted into grant-in-aid code.
2. As a consequence of this, learned counsel for the petitioner submitted that the employees of 11 institutions of the petitioner who are not covered under grant-in-aid code were governed under the provisions of EPF and MP Act and they have been paid benefit with effect from 01.09.1997. The said order was passed on 01.10.1996. Thereafter, the respondent again reviewed the said order and passed an order by exercising powers conferred under Section 7A of EPF and MP Act, 1952 and held that all the establishments covered under the proceedings are coverable with effect from the date on 4 which they have employed 20 or more employees. The effect of this order would amount to review of the earlier order, in which it has been held that the employees other than the employees covered under grant-in-aid code, are governed under provisions of EPF and MP Act. By virtue of the impugned order dated 22.04.2002, it covers all the employees irrespective whether they are permanent or covered by grant-in-aid code or contract or other employees.
3. The petitioner challenged the said order on the ground, that the respondent does not have the power to review that too after a gap of 10 years of the earlier order. The said order was challenged before the Appellate Tribunal in Appeal No.588(6)/2002. The Appellate Tribunal also dismissed the appeal without assigning any reasons. Hence, the order passed by the respondent as per Annexure - J and order passed by Appellate Tribunal as per Annexure - L are without authority of law. The order of the Appellate Tribunal suffers for want of reasons. It is submitted that there 5 were two appeals pending before Appellate Tribunal in ATA No.431(6)/2003 and ATA No.588(6)/2003 of which, second appeal pertains to the case which was the subject matter in review order passed by the respondent. Hence, learned counsel for the petitioner sought to set aside the order passed by the Appellate Tribunal. In support of his submission, the learned counsel referred to the judgment in AIR 1970 SC 1273 - Patel Narshi Thakershi and others V/s Pradyumansinghji Arjunsinghjji and submitted that in order to exercise review power, there shall be express provision. In the instant case, there is no express provision which is available to the respondent to review the order. Accordingly, review order has to be set aside.
4. The learned counsel for respondent submits that in respect of applicability of the Act, in-so-far as the employees who are not covered under grant-in-aid code the review order governs those employees who are appointed outside the scope of grant-in-aid code hence, 6 there is no ground to interfere in the said order and accordingly it is liable to be dismissed.
5. Heard the learned counsel for respective parties.
6. The institutions of the petitioner are eleven in number and most of the employees are covered under grant-in-aid code. The persons whose services are covered under the grant-in-code were those persons for whom the Act is not applicable under Section 16(1)(b) of EPF and MP Act, 1952 which expressly excludes such persons. The same reads thus :
Section 16 - Act not to apply to certain establishments - (1) This act shall not apply-
(b) to any other establishment belonging to or under the control of the Central Government or a State Government and whose employees are entitled to the benefit of contributory provident fund or old age pension in accordance with any scheme or rule framed by the Central Government or the State Government governing such benefits;7
When there is express provision of coverage it is to be understood that EPF Act is not applicable to those persons who are not covered under Section 16(1)(b) of EPF Act namely, appointed under contract basis, casual labour etc. This exactly was the subject matter in the earlier order dated 01.10.1996. The management was clarified that it need not comply with the provisions of EPF and MP Act and scheme in respect of the employees who are later admitted to grant-in-aid. The said order covers about 10 years period. Thereafter, the very subsequent officer has reviewed the said order and passed an order stating that all the employees of the petitioner's institution irrespective of they are covered under the provisions of grant-in-aid code or not, where number of members are 20 or more, are governed under the provisions of EPF and MP Act, 1952. The said order passed by the respondent is contrary to law and ultravires of EPF and MP Act, 1952. Hence, subsequent order dated 22.04.2002 is liable to be set aside and accordingly, it is set aside.
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7. The subsequent order was the subject matter in Appeal No.588(6)/2002 before the Appellate Tribunal. They were two appeals pending of which, Appeal No.588(6)/2002 pertains to the subsequent review order. While disposing two appeals, the Appellate Tribunal has assigned the reason in respect of the appeal which is no way concerned to the very case and decided the appeal filed by the petitioner challenging the review order in Appeal No.ATA 588(6)/2003. The Appellate Tribunal has not given any reason while disposing of the appeal. Hence, the appellate order passed in Appeal No.588(6)/2002 is without authority without assigning any reason. Accordingly, same is also liable to be set aside.
8. It is made clear that Section 16(1)(b) of the EPF and MP Act excludes persons or employees who are governed under grant-in-aid code and EPF Act applies to persons who are not governed under the said provisions. 9
9. In the case of AIR 1970 SCC 1273 - Patel Narshi Thakershi and others V/s Pradyumansinghji Arjunsinghjji, the Apex Court in paragraph 4 has observed thus:
The first question that we have to consider is whether Mr. Mankodi had competence to quash the order made by the Saurashtra Government on October 22, 1956. It must be remembered that Mr. Mankodi was functioning as the delegate of the State Government. The order passed by Mr. Mankodi, in law amounted to a review of the order made by Saurashtra Government. It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order. The question whether the Government's order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. Hence the same cannot be ignored The Subordinate Tribunals have to carry out that order. For this reason alone the order of Mr. Mankodi was Liable to be set aside.
10. In the light of the above, it is made clear that in order to review the order by any statutory authority or any person, there shall be express provision under the 10 Statute. The authorities shall not presume, in order to review the earlier order.
In the light of the above, this petition is allowed. The impugned orders at Annexures - J and L are quashed.
Accordingly, writ petition is allowed.
Sd/-
JUDGE UN