Karnataka High Court
Jss Maha Vidya Peetha vs The Assistant Provident Fund ... on 17 July, 2017
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
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. 39699 / 2010 (L - PF)
BETWEEN:
JSS Mahavidya Peetha,
Ramanuja Road,
Mysuru - 570 004.
Represented by its
Executive Secretary,
Sri.B.N.Betkerur,
Aged about 77 years ...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,
Mysuru - 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 passed by the EPF Appellate
Tribunal, New Delhi at Annexure - H to the writ petition
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and to quash the order dated 30.04.2003/06.05.2003
passed by the Assistant Provident Fund Commissioner,
Mysuru at Annexure - F to the writ petition.
This petition coming on for hearing this day, the
Court made the following:
ORDER
The petitioner's institution was established in the year 1959. The petitioner has also established several educational institutions which are independent and autonomous. Each institution is independent and they are governed by the provisions of Employees' Provident Funds and Miscellaneous Provisions Act 1952 (in short 'EPF and MP Act' or 'the Act'). They have given a separate code number under Section 13(b) of the Act and since then they are independent of its own. For the purpose of applicability of the said order, these institutions have been allowed the benefit of infancy period under Section 13(1) of the Act. The employees of these institutions who are governed under Section 16(1)(b) of the Act are excluded and employees were not governed under provisions of EPF and MP Act. The 3 Government of India, by notification SO No.986 dated 19.02.1982, extended the provisions of EPF Act and schemes framed thereunder to six categories of these educational, technical and training institutions with effect from 06.03.1982.
2. This was the subject matter of Annexure - A dated 27.09.1996, in which it has been ordered that EPF and MP Act is applicable to J.S.S Dental College. It is engaged in the activity of imparting medical education and it is coverable under the provisions of EPF Act with effect from 14.08.1987 after completion of infancy period of three years from the date of its starting. This order was passed on 27.09.1996 and the petitioner has complied the said order by extending the benefit to the employees who are governed under the provisions of EPF Act.
3. Notwithstanding the same, without having any power, learned counsel submits that the respondent has passed one more order reviewing the earlier order 4 directing the petitioner that the petitioner's institution is governed as per Government of India notification S.O.No.986 dated 19.02.1992 with effect from 06.03.1982. Learned counsel submits that the petitioner is also governed under the provisions of EPF Act from 01.09.1997 and that was the state as per Annexure - A and the subsequent review order is arbitrary in nature. In support of the same, learned counsel referred to the judgment reported in ILLJ 1998 Page 34 and also referred to the judgment in AIR 1970 SCC 1273. The judgement referred in ILLJ 1998 SC Page 34 - Regional Provident Fund Commissioner and another V/s Dharamsi Morarji Chemical Co., Ltd. the Apex Court in paragraph 4 has observed thus:
"4. It is true that if an establishment is found, as a fact, to consist of different departments or branches and if the departments and branches are located at different places, the establishment would still be covered by the net of Section 2- A and the branches and departments cannot be said to be only on that ground not a part and parcel of the parent establishment. However, on the facts of the present case, the only connecting link 5 which could be pressed in service by the learned counsel for the appellant was the fact that the respondent-Company was the owner not only of the Ambarnath factory but also of Roha factory. On the basis of common ownership it was submitted that necessarily the Board of Directors could control and supervise the working of Roha factory also and therefore, according to the learned counsel, it could be said that there was interconnection between Ambarnath factory and Roha factory and it could be said that there was supervisory, financial or managerial control of the same Board of Directors. So far as this contention is concerned the finding reached by the High Court, as extracted earlier, clearly shows that there was no evidence to indicate any such interconnection between the two factories in the matter of supervisory, financial or managerial control. Nothing could be pointed out to us to contraindicate this finding. Therefore, the net result is that the only connecting link which could be effectively pressed in service by the learned counsel for the appellant for culling out interconnection between Ambarnath factory and Roha factory was that both of them were owned by a common owner, namely, the respondent- Company and the Board of Directors were common. That by itself cannot be sufficient unless there is clear evidence to show that there was interconnection between these two units and there was common supervisory, financial or managerial control. As there is no such evidence in the present case, on the peculiar facts of this case, it is not 6 possible to agree with the learned counsel for the appellant that Roha factory was a part and parcel of Ambarnath factory or it was an adjunct of the main parent establishment functioning at Ambarnath since 1921".
It is submitted, unless there is express provisions the authority cannot review its order. The said order was challenged before Appellate Tribunal in Appeal No.ATA (6) / 2003. The same also came to be allowed rejected.
4. Learned counsel for the respondent submits that writ petition deserves to be dismissed. It is submitted that petitioner and its several institutions fall under Section 2-A of the Act. It is submitted that the Act applies to the establishment of the petitioner for the purpose of applicability of the Act. Section 2-A of the Act provides that "where an establishment consists of different departments or has branches, whether situate in the same place or different places, all such departments or branches shall be treated as parts of the same establishment". The institutions of the petitioner are its branches and departments hence, they are 7 governed by the Government of India notification S.O.No.986 dated 19.02.1992 with effect from 06.03.1982. Hence learned counsel support the order passed by the authority.
5. Heard the learned counsel for the respective parties.
6. Section 2-A of the Act is not applicable in the facts and circumstances. Educational institutions of the petitioner have a code of separate institution. They have been given separate PF number and they are inter dependent and inter changeable. The institutions of the petitioner are governed by different Statutes namely Medical Council of India, Law University and likewise. And under these circumstances, what has been held by an earlier order as per Annexure -A is sound and proper. The contention that petitioner institution is not an independent institution and has got all the branches and departments is rejected. One more order is passed stating that it is not open for the authority to review its 8 earlier order unless there is express provision. In the EPF and MP Act, there is no such express provision which is available for review by the authority. In this regard the judgment in AIR 1970 SCC 1273 is aptly applicable.
7. 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 9 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.
8. The subsequent order passed was the subject matter before the Appellate Tribunal. The Appellate Tribunal confirmed the said order. It is not made clear in the order of the Appellate Tribunal as to review power of the respondent. Under these circumstances, order passed by Appellate Tribunal is liable to set aside. Ordered accordingly.
Accordingly, the writ petition is allowed.
Sd/-
JUDGE UN