Chauhan vs Ms. Jyotsna Rewal Dua
2021 Latest Caselaw 1053 HP

          IN THE HIGH COURT OF HIMACHAL PRADESH
                         SHIMLA

                                                           CWP No. 733 of 2021




                                                                                .

                                                           Decided on : 11.2.2021

    Shri Ram Hospital through its managing Partner Sh. Ankur





    Chauhan.............
                                            .....Petitioner.
                            Versus

    Employees Provident Fund Organization and others


    Coram:

    Ms. Jyotsna Rewal Dua, Vacation Judge.
                                             to                              ....Respondents.

    Whether approved for reporting?1

    For the Petitioner:                           Mr. B.C Negi, Sr. Advocate with



                                                  Mr. Nitin Thakur, Advocate.

    For the Respondents:                          Mr. Raman Sethi, Advocate.




                                                  (Through video conferencing).





    Jyotsna Rewal Dua, J (oral)

Notice. Mr. Raman Sethi, learned counsel appears

and accepts service of notice on behalf of respondents.

2. With the consent of learned counsel for the parties,

the matter is heard and disposed of without calling for reply.

Whether reporters of the local papers may be allowed to see the judgment?

...2...

3. It appears from the record appended with the writ

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petition that an order under Section 7-A of the Employees'

Provident Funds and Miscellaneous Provisions Act, 1952 (for

short "Act") was passed against the petitioner in case No.

478/2018 on 26.12.2019. The petitioner was directed to deposit

outstanding dues of Rs.8,33,301/- (Rupees eight lacs thirty

three thousand three hundred and one). Aggrieved against

this order, the petitioner instituted CWP No. 478 of 2020. The

writ petition was decided on 28.1.2020 and was held to be not

maintainable in view of efficacious alternative remedies

available under the provisions of the Act. The petitioner

subsequently moved an application under Section 7-A (4) of

the Act before the competent authority for recalling of the

order passed on 26.12.2019. Section 7-A (4) runs as under:-

"(4) where an order under sub-section (1) is passed against an employer ex-parte, he may, within three months from the date of communication of such order, apply to the officer for setting aside such order and if he satisfies the officer that the show-cause notice was not duly served or that he was prevented by any sufficient cause from appearing when the inquiry was held, the officer shall make an order setting aside his earlier order and shall appoint a date for proceeding with the inquiry;

...3...

Provided that no such order shall be set aside merely on the ground that there has been irregularity in the

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service of the show-cause notice if the officer is satisfied that the employer had notice of the date of hearing and had sufficient time to appear before the officer. Explanation- Where an appeal has been preferred

under this Act against an order passed ex parte and such appeal has been disposed of otherwise than on the ground that the appellant has withdrawn the appeal, no application shall lie under this sub-section for

setting aside the ex parte order."

This application was dismissed by the competent authority

vide order dated 31.8.2020. The short order reads as under:-

"Order under Section 7A(4) of the EPF & MP Act, 1952 Reference No. RO/SML/COMP-1/HP-4875/508 dated 5.8.2020 Dated: 31.8.2020 Before going into the merits of application,

Section 7A (4) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 is quoted verbatim as below:-

where an order under sub-section (1) is passed against an employer ex-parte, he may, within three months

from the date of communication of such order, apply to the officer for setting aside such order and if he satisfies the officer that the show-cause notice was not

duly served or that he was prevented by any sufficient cause from appearing when the inquiry was held, the officer shall make an order setting aside his earlier order and shall appoint a date for proceeding with the inquiry;

Provided that no such order shall be set aside merely on the ground that there has been irregularity in the service of the show-cause notice if the officer is satisfied that the employer had notice of the date of hearing and had sufficient time to appear before the officer. Facts of the case:-

...4...

Bare perusal of the above section reveals that 7 A (4) is applicable in case of ex-parte order. However in the

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present case order is not passed ex-parte but sufficient opportunity is given to the establishment & its owner as given below.

Total eleven hearing were conducted during the course

of inquiry as can be seen in the given 7A order in which responded appeared on three appearances. In one such hearing on 12/09/2019 even Mr. Ankur Chauhan, Managing partner of the establishment appeared, so it

is not correct to portray that order is ex-parte order. Use of phrase, "none appeared nor any communication received on behalf of the establishment" be seen in the context of last date of hearing which was properly

informed to the representative of the establishment on

21/11/2019 i.e on a hearing date before last date of hearing.

Any more laxity given to the employer could have unnecessarily hampered the interest of the employees

for whom benefits of provident fund has been created, if these employees who are at the lower state of society are not given pf benefits then the whole purpose of creating,

EPF will be defeated.

Hence, applications under 7A (4) is rejected on the

ground that sufficient opportunity is already provided to the establishment and establishment is directed to deposit dues immediately."

4. A perusal of the above order reveals that it has

been passed without giving any opportunity of hearing to the

petitioner to present his case in support of his prayer(s) made

in application preferred under Section 7-A (4) of the Act. The

principles of natural justice has not been complied with while

deciding the said application moved by the petitioner. This

...5...

factual position is not even disputed by the learned counsel for

.

the respondents. Accordingly, the impugned order dated

31.8.2020 is quashed and set aside. The parties through their

learned counsel are directed to appear before the authority

below on 5.3.2021, when a date shall be given to them for

hearing the application preferred by the petitioner under

Section 7-A (4) of the Act. It is hoped and expected that the

application shall be decided by the concerned authority as

expeditiously as possible but not later than 30.4.2021.

Present petition stands disposed of on above

terms alongwith all pending applications.

    11th February, 2021                         Jyotsna Rewal Dua
    (priti)                                     Vacation Judge.