Bombay High Court
J M Engineering Thou Its Partner ... vs Union Of India And Ors on 4 July, 2023
Bench: N. J. Jamadar
2023:BHC-AS:18160
9-wp-5377-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5377 OF 2023
J.M. Engineering ...Petitioner
vs.
Union of India and Others ...Respondents
Mr. Sanjay Shinde a/w. Mr. Prathamesh Bhanuwanshe, for the
Petitioner.
Ms. Shamiana Hussain i/b. Mr. Rakesh Sawant, for the
Respondents.
CORAM : N. J. JAMADAR, J.
DATE : JULY 04, 2023
P.C.:
1. Heard the learned counsel for the parties.
2. The challenge in this petition is to an order passed by the
Regional Provident Fund Commissioner dated 31st May, 2022 under
section 7A of the Employees Provident Funds and Miscellaneous
Provisions Act, 1952 (Act, 1952) and further order dated 29 th
November, 2022 passed on an application for review of the said
order under section 7B of the Act, 1952, whereby the application
came to be rejected.
3. The learned counsel for the petitioner would urge that the
Review Application came to be rejected without providing an
opportunity of hearing to the petitioner. Attention of the Court was
invited to the order dated 29 th November, 2022 which indicates that
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the Review Application was filed on 17th November, 2022 and it
came to be decided by the order on 29th November, 2022.
4. In the concluding paragraph of the order dated 29th
November, 2022 the Regional Provident Fund Commissioner has
opined that since the Review Application had not been preferred
within 45 days of the passing of the order dated 31 st May, 2022, it
was liable to be rejected.
5. The learned counsel for the petitioner submitted that the
order dated 31st May, 2022 was not served on the petitioner and
upon a grievance being raised by the petitioner, the said order came
to be furnished to the petitioner along with a letter dated 12 th
October, 2022.
6. The learned counsel for the respondents countered the
submissions on behalf of the petitioner. It was urged that the
petitioner was provided an efficacious opportunity of hearing as the
impugned order would indicate that the matter was adjourned on a
number of occasions and the hearing lasted for over four years and
therefore the Regional Provident Fund Commissioner was justified
in rejecting the Review Application. An endevour was also made to
draw home the point that the petitioner had failed to make out a
case for review within the parameters indicated in section 7B of the
Act, 1952.
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7. The question as to whether a case for review was made out
could have been lawfully entered into and decided by the Regional
Provident Fund Commissioner after providing an opportunity of
hearing to the petitioner.
8. The challenge qua the impugned order dated 29 th November,
2022 is primarily with regard to the decision making process. The
learned counsel for the petitioner invited the attention of the Court
to the judgment of this Court in the case of Deogiri Nagari Sahakari
Patsanstha Limited vs. Assistant Provident Fund Commissioner 1
wherein after adverting to the previous pronouncement, this Court
has enunciated that the review application must be decided after
providing an opportunity of hearing to the petitioner.
9. In the aforesaid view of the matter, the impugned order dated
29th November, 2022 rejecting the application for review without
providing an opportunity of hearing to the petitioner is clearly
unsustainable. The petition thus deserves to be allowed.
Hence, the following order.
ORDER
1] The petition stands allowed.
2] The impugned order dated 29 th November, 2022 rejecting the
Review Application preferred under section 7B of the Act, 1952
1 2022 (1) Mh.L.J. 259.
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stands quashed and set aside.
3] The Review Application stands restored to the file of Regional
Provident Fund Commissioner.
4] The Regional Provident Fund Commissioner shall decide the
Review Application afresh after providing an opportunity of
hearing to the petitioner.
5] The petitioner shall appear before the Regional Provident
Fund Commissioner on 17th July, 2023 and Regional Provident
Fund Commissioner is requested to make an endevour to decide the
Review Application as expeditiously as possible.
6] It is hereby made clear that this Court has not entered into
the merits of the matter especially the legality, propriety and
correctness of the order dated 31st May, 2022 passed under section
7A of the Act, 1952. And all questions are kept open for
consideration before the Provident Fund Commissioner.
(N. J. JAMADAR, J.)
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