Bright Export Limited vs Central Board Of Trustees,Epf ...
2016 Latest Caselaw 5885 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Judgment reserved on: July 28, 2016
                                   Judgment delivered on :September 08, 2016

+       W.P.(C) 2095/2011, CM No.22719/2016
        BRIGHT EXPORT LIMITED                              ..... Petitioner
                          Through:      Mr. S.P. Arora, Adv. with Mr. Rajiv
                                        Arora, Adv.
                          versus
        CENTRAL BOARD OF TRUSTEES,EPF ORGANISATION
                                                               ..... Respondent
                          Through:      Mr. Keshav Mohan, Adv. with Mr.
                                        Piyush Choudhary, Adv.

CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO
                              JUDGMENT

V. KAMESWAR RAO, J Rev. Pet. 293/2016

1. This Review Petition has been filed by the petitioner seeking review

of order dated March 21, 2016 whereby this Court has dismissed the petition

as being bereft of any merit. I may state here, the petitioner had earlier filed

an intra-court appeal being LPA No.260/2016 before the Division Bench of

this Court, which was withdrawn to enable the petitioner herein, to approach

this Court in review proceedings. Accordingly, the appeal was dismissed as

withdrawn on April 27, 2016. Subsequent thereto, it appears CM

No.18607/2016 was filed by the petitioner in the LPA No.260/2016, seeking

a direction for granting time to file review petition having regard to the

limitation. In the said application, the Division Bench has passed the

following order:-

"CM APPL.18607/2016 After some hearing, learned counsel sought liberty to withdraw the application but submitted that the Court may consider granting time to prefer the review petition having regard to the limitation. The applicant is at liberty to file review proceedings along with the request for condoning the delay. In case the review petition is filed within a week, learned counsel for the respondents submits, that no objection on the ground of delay would be taken.

Application stands dismissed as withdrawn."

An application for condonation of delay being CM No.22718/2016

was allowed by this Court on June 2, 2016.

2. The challenge in the writ petition is, to the order passed by the

Employees Provident Fund Appellate Tribunal dated November 1, 2010,

whereby the Appellate Tribunal has dismissed the appeal filed by the

petitioner against order dated June 02, 2008 passed by the Assistant

Provident Fund Commissioner under Section 7A of the Employees Provident

Funds & Miscellaneous Provisions Act, 1952 ('Act of 1952' in short). It is

the submission of the learned counsel for the petitioner, the Assistant

Provident Fund Commissioner had relied upon the squad report dated June 2,

2008, which report was not given to the petitioner. According to him, the

said aspect has not been considered by the Appellate Tribunal. He would

state, that there is no such report dated June 2, 2008, in existence. If such

report, is in existence, the same has been considered without giving a copy

thereof to the petitioner, the conclusion of the Assistant Provident Fund

Commissioner in the order dated June 02, 2008 was liable to be set aside.

Unfortunately, the same has not been done by the Tribunal.

3. I note, when the writ petition was listed before this Court on March 4,

2015, similar plea was taken by the learned counsel for the petitioner. On

such a plea, the learned counsel for the respondent sought time for filing

additional documents viz copy of the squad report, which was filed on June

2, 2008 before the Assistant Provident Fund Commissioner, copy of the

eligibility register and the balance sheet for the relevant period. Pursuant

thereto, the respondent had filed a short affidavit on March 12, 2015

enclosing therewith order sheet dated April 30, 2007 passed in the

proceedings under Section 7A; copy of the balance sheet dated March 31,

2008; copy of attendance sheet; copy of the squad report dated April 20,

2006 issued by the office of the EPF. In the short affidavit, in paras 4, 5 and

6, following has been stated:-

"4. That as far as the filing of the Copy of Squad Report is concerned, I hereby state that the Squad Report is of 20.4.2006 and not of 2.6.2008, the same was duly filed on 1.5.2006, a copy of the same had been duly handed over to the establishment on 20.4.2006 itself, which is also duly noted in the Squad Report dated 20.4.2006. Further, the same is also evident from the Order dated 30.4.2007 passed by the Assistant PF Commissioner under the 7A Enquiry Proceedings. A Copy of the Squad Report 20.4.2006 is also attached herewith.

5. That I hereby further wish to clarify before this Hon'ble Court that on 2.6.2008, the Order under Section 7 A of the Employees Provident Funds & Miscellaneous Act, 1952 was passed by the Assistant PF Commissioner and not the Squad Report as has been mentioned in the Order dated 2.6.2008 due to clerical/typographical error.

6. That in view of the above, I most respectfully submit before this Hon'ble Court that the direction with respect to the submission of the Squad Report filed on 2.6.2008 before the Assistant PF Commissioner be read as Squad Report dated 20.4.2006 and not as submitted on 2.6.2008 as on 2.6.2008 the order under Section 7A of the Employees Provident Funds & Miscellaneous Act, 1952 was passed by the Assistant PF Commissioner in the matter."

4. It is also noted that no response to the said short affidavit has been

filed by the petitioner. In the absence of a response, surely it must be

construed that the contents of the affidavit have not been denied by the

petitioner herein. That apart, I also note, this aspect was argued, during the

hearing of the writ petition, as is noted in para 31 of the impugned order

dated March 21, 2016. This Court had stated that the squad report is dated

April 20, 2006 and not June 02, 2008. It was also noted that copy of the said

report along with the list of employees was supplied to the petitioner on

April 30, 2007. The same was acknowledged by the representative of the

petitioner.

5. Noting the above, this Court was of the view that the said aspect has

not been disputed by the petitioner. This Court had also noted in para 32, no

supporting documentary evidence was filed by the petitioner to rebut the

inspection report, instead of various opportunities granted to the petitioner.

If that being the position, the plea now being urged by the learned counsel

for the petitioner, has been considered by this Court in the impugned order.

It was rightly held that the contents of the short affidavit have not been

disputed by the petitioner. The conclusion of this Court in paras 31 and 32 is

justified. The plea is liable to be rejected. The plea having been considered

and decided cannot be a ground to seek review of the order dated March 21,

2016.

6. The reliance placed by the learned counsel for the petitioner on the

judgment of this Court in the case reported as AIR 2005 SC 592 Board of

Control for Cricket, India vs. Netaji Cricket Club wherein the Court has

culled out the following grounds on which a review can be sought, has no

applicability in the facts of this case.

(i) Discovery of new and important matter of evidence, which after the

exercise of due diligence was not within the applicant's knowledge or could

not be produced by him at the time when the decree was passed;

(ii) Mistake or error apparent on the face of the record and;

(iii) For any other sufficient reason.

A perusal of the review petition would reveal that none of the above grounds

have been urged in the petition for the Court to review the impugned order.

7. Insofar as the judgment of Nidhi Kaushik v. Union of India & Ors

212 (2014) DLT 5 (DB) to contend that by filing an affidavit, an order

cannot be improved upon is concerned, the short affidavit filed by the

respondent was in view of the plea taken by learned counsel for the

petitioner himself on March 4, 2015. It is also noted, no response to the said

short affidavit was filed by the petitioner. It is not a case that by way of an

affidavit, the respondent has tried to improve its case. Rather, by the

affidavit, the respondent has tried to clarify a mistake, which has crept in the

order of the Assistant Provident Fund Commissioner dated June 02, 2008.

8. In view of the above, I do not see any merit in the review petition.

The same is dismissed.

CM No.22719/2016

Dismissed as infructuous.

V. KAMESWAR RAO, J SEPTEMBER 08, 2016 ak