Kerala High Court
M/S. Unicorn Uptime Power Private ... vs Union Of India on 5 July, 2016
Author: K.Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
MONDAY, THE 3RD DAY OF OCTOBER 2016/11TH ASWINA, 1938
WP(C).No. 23563 of 2016 (U)
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PETITIONER:
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M/S. UNICORN UPTIME POWER PRIVATE LIMITED,
HAVING ITS REGISTERED OFFICE AT DOOR NO 775,
1ST FLOOR,2ND MAIN,8TH BLOCK, '
KORAMANGALA, BANGALORE 560 095 AND
ITS PRINCIPAL PLACE OF BUSINESS AT 33/2086,
SARWA-036,GROUND FLOOR, SREEKALA ROAD, VENNALA,
KOCHI 682 028 REPRESENTED BY ITS DIRECTOR
MR SHINE K.N
BY ADV. SRI.SANTHAN V.NAIR
RESPONDENTS:
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1. UNION OF INDIA
REPRESENTED BY THE SECRETARY,
MINISTRY OF LABOUR AND EMPLOYMENT,
SHRAM SAKTHI BHAVAN,
RAFI MARG, NEW DELHI 110 001
2. EMPLOYEES PROVIDENT FUND ORGANISATION
SUB-REGIONAL OFFICE, 36/685/A
BHAVISHYANIDHI BHAVAN, PB NO 1895,
KALOOR, KOCHI 682 017
REPRESENTED BY REGIONAL PROVIDENT FUND COMMISSIONER
3. REGIONAL PROVIDENT FUND COMMISSIONER
EMPLOYEES PROVIDENT FUND ORGANISATION,
SUB-REGIONAL OFFICE, 36/685/A,BHAVISHYANIDHI BHAVAN,
PB NO 1895,KALOOR,KOCHI 682 017
4. ASSISTANT PROVIDENT FUND COMMISSIONER & RECOVERY OFFICER
EMPLOYEES PROVIDENT FUND ORGANISATION,
SUB REGIONAL OFFICE,36/685/A
BHAVISHYANIDHI BHAVAN, P.B NO 1895,KALOOR,
KOCHI 682 017
R1 BY ADV. SRI.V.R.RAKESH, CGC
R2-R4 BY ADV. DR.S.GOPAKUMARAN NAIR (SR.)
R2-R4 BY ADV. SRI.S.PRASANTH, SC, EMPLOYEES PROVIDENT
FUND ORGANISATION
R BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
R BY SRI.S.PRASANTH, SC, EMPLOYEES PROVIDENT FUND ORGAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03-10-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 23563 of 2016 (U)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 ORIGINAL RESOLUTION OF THE PETITIONER COMPANY DATED
5-7-2016
EXHIBIT P2 TRUE COPY OF THE STTEMENT ALLEGED DUES PREPARED BY THE
ENFORCEMENT OFFICER UNDER THE 2ND RESPONDENT DATEDNIL
EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT IN
FILE NO KR/KC/24819/ENF.III(5) 2016 DATED 31-3-2016
EXHIBIT P4 TRUE COP[Y OF THE REQUEST LETTER DATED 20-04-2016
FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT
EXHIBIT P5 TRUE COPY OF THE NOTICE OF DEMAND ISUED BY THE 4TH
RESPONDENT DATED 4-5-2016
EXHIBIT P6 TRUE COPY OF THE REPLY LETTER DATED 10-05-2016 IN
RESPONSE TO EXT.P5
EXHIBIT P7 TRUE COPY OF THE LETTER DATED 15-06-2016 ALONG WITH
CALCULATION SUBMITTED BEFORE THE 4TH RSPONDENT
EXHIBIT P8 TRUE COPY OF THE PETITION DATED 28-06-2016 FILED
BEFORE THE 4TH RESPONDENT
RESPONDENT(S)' EXHIBITS
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NIL
//TRUE COPY//
P.A.TO JUDGE
JJJ
K. VINOD CHANDRAN, J.
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W.P.(C) No. 23563 of 2016 (U)
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Dated: 3rd October, 2016
J U D G M E N T
The petitioner has filed a review against Ext.P3 order passed under Section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for brevity, 'EPF & MP Act'). The Order under Section 7A is produced at Ext.P3 and the review filed under Section 7B is produced at Ext.P8. The learned Standing Counsel for the respondent Organisation submits that as per paragraph 79A of the Employees Provident Fund Scheme, 1952, a period of only 45 days is provided for filing a review and there is no power to condone any delay occasioned.
2. The learned Counsel for the petitioner submits that the proceedings under Section 7A was itself taken W.P.(C) No. 23563/2016 -2- for escaped wages and a tabulation was given by the petitioner which was not considered at all. The petitioner only wanted a tabulation of the wages, for which a review has been filed. However, the review having been filed beyond the time, there could be no consideration made. In fact, the petitioner had a remedy of appeal, which he could have availed within 60 days or within 120 days with an application for condonation of delay. The above writ petition has been filed within the said 120 days, on 13.07.2016. In any event, the petitioner could be permitted to take recourse to the appellate remedy, going by Section 14 of the Limitation Act, for the petitioner having initiated a bona fide proceeding before this Court.
3. This Court normally would have directed the appeal to be filed within a period, which would also be directed to be considered; ignoring the aspect of delay. W.P.(C) No. 23563/2016 -3- However, here the petitioner has approached the authority under Section 7B of EPF & MP Act for a review only since he had an objection with respect to tabulation. In such circumstance, even if an appeal is filed and if the petitioner's contentions are found to be proper then the same would have to be remanded for fresh consideration to the original authority. Only in the said circumstances and peculiar facts, this Court is inclined to grant the prayer of the petitioner to consider the review application itself, despite the same having been filed after the period prescribed. This Court, invoking its extraordinary powers under Article 226 of the Constitution of India, directs the 4th respondent to consider the application for review at Ext.P8. The petitioner shall appear before the Officer on 19.10.2016, on which date, either the review shall be proceeded with and the petitioner or his representative W.P.(C) No. 23563/2016 -4- heard or a date indicated to the petitioner for further hearing within two weeks from that date. The review shall be considered and disposed of within a period of two weeks from the date of hearing.
The writ petition is disposed of. No Costs.
Sd/-
K.VINOD CHANDRAN, JUDGE jjj 3/10/16