Madras High Court
M/S.Chakravarthy Theatres vs The Assistant Provident Fund ... on 24 June, 2021
W.P. (MD) No. 11571 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.06.2021
CO RAM
THE HONOURABLE MR.JUSTICE P.D.AUDIKESAVALU
W. P. (MD) No. 11571 of 2014
and
M.P. (MD) Nos. 1 and 2 of 2014
M/s.Chakravarthy Theatres,
Chettikulam Junction
Nagercoil,
Kanyakumari District,
represented by its Proprietor
Mr. Joy Raja ... Petitioner
-vs-
The Assistant Provident Fund Commissioner,
The Assistant Provident Fund Office,
Employees Fund Organization,
Sub Regional Office,
66, Water Tank Road,
Nagercoil-629 001,
Kanyakumari District. ...
Respondent
PRAYER:- Writ Petition filed under Article 226 of the Constitution of India, to
issue a writ of Certiorarified Mandamus, calling for records relating to
impugned order passed by the respondent on 25.03.2014 in Proceedings
No.TN/NGL/20854/Enf(32)2013 and the consequential order dated 12.03.2014
in TN/NGL/20854/Enf/Circle/32/8F/2012 and quash the same and direct the
respondent to take the petitioner application dated 17.03.2014 on file either as
review under Section 7-B or as an application under Section 7-A(4) of the
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W.P. (MD) No. 11571 of 2014
Employees Provident Fund and Miscellaneous Provision Act of 1952.
For Petitioner : Mr. M.Ramkumar
For Respondent : Mr. K.Gurunathan
ORDER
(through video conference)
Heard Mr. M.Ramkumar, Learned Counsel appearing for the Petitioner
and Mr. K.Gurunathan, Learned Counsel appearing for the Respondent and
perused the materials placed on record, apart from the pleadings of the parties.
2. The Respondent conducted an enquiry under Section 7-A of the
Employees' Provident Funds and Miscellaneous Provisions Act, 1952
(hereinafter referred to as 'the EPF Act' for short) for the period from October
2012 to April 2013 in respect of the establishment of the Petitioner and by
Order in File No. TN/NGL/Enf/Circle 32/20854/2013 dated 30.01.2014 arrived
at the conclusion that the Petitioner had not produced any records despite
summons issued for 10 hearings and as such, it was determined on the basis of
the report of the Enforcement Officer and other available documents and records
that a sum of Rs. 77,035/- was payable in respect of 7 employees for the
contribution towards provident fund dues. In furtherance thereto, the
Respondent passed another Order No. TN/NGL/20854/Enf/Circle 32/8F/2012
dated 12.03.2014 for the recovery of the aforesaid provident fund dues by
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W.P. (MD) No. 11571 of 2014
attachment of the bank account of the Petitioner with Axis Bank, Nagercoil
under Section 8-F of the EPF Act. The Petitioner thereafter made an application
for review dated 17.03.2014 invoking Section 7-B of the EPF Act with certain
documents, but the Respondent by Order No. TN/NGL/20854/Enf(32)2013
dated 25.03.2014 rejected the same for the following reasons:-
“(i) The review application is not in prescribed format.
(ii) The review application is not filed by the employer of the
establishment.
(iii) Sufficient chances were already afforded to produce the
documents/records during the course of inquiry under
Section 7A of the Act and the Employer has not attended
the hearing with the summoned records.”
Aggrieved thereby, the Petitioner has assailed the aforesaid orders dated
12.03.2014 and 25.03.2014 and has sought for consequential direction to the
Respondent to treat the application dated 17.03.2014 either as a Review
Application under Section 7-B of the EPF Act or as an application to set aside
the exparte order under Section 7-A(4) of the EPF Act, in this Writ Petition.
3. The question that arises for consideration in this Writ Petition is whether
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W.P. (MD) No. 11571 of 2014
the Respondent is justified in rejecting the application for review filed by the
Petitioner under Section 7-B of the EPF Act?
4. Learned Counsel for the Respondent in justification of the refusal of the
Respondent to entertain the application for review, points out that Form 9 of the
Employees' Provident Fund Scheme, 1952, prescribes the format of the
application for review under Section 7-B of the EPF Act and the application
dated 17.03.2014 submitted by the Petitioner does not satisfy that requirement.
It is further contended that the person who has signed the application dated
17.03.2014 as authorized signatory of the Petitioner has not submitted any
proof authorizing him to do so and in the absence thereof, the application for
review cannot be accepted. It is further highlighted that the order dated
12.03.2014 passed under Section 7-A of the EPF Act clearly records that the
Petitioner has been granted sufficient opportunities to produce documents, but
he had not produced the same despite various summons issued in that regard.
5. At this juncture, it would be useful to refer to dictum laid down by the
Hon'ble Supreme Court of India in N.Balaji -vs- Virendra Singh [(2004) 8
SCC 312], where it has been observed as follows:-
“10. In the matter of applicability of the procedural rigours
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W.P. (MD) No. 11571 of 2014
the Constitution Bench of this Court in Sardar Amarjit Singh
Kalra -vs- Pramod Gupta [(2003) 3 SCC 272] has observed
that laws of procedure are meant to regulate effectively, assist
and aid the object of substantial and real justice and not to
foreclose even an adjudication on the merits of substantial
rights of citizen under personal, property and other laws. With
the march and progress of law, the new horizons explored and
modalities discerned and the fact that the procedural laws must
be liberally construed to really serve as handmaid, make it
workable and advance the ends of justice, technical objections
which tend to be stumbling blocks to defeat and deny
substantial and effective justice should be strictly viewed for
being discouraged, except where the mandate of law inevitably
necessitates it. It follows from the decision by the Constitution
Bench that the procedure would not be used to discourage the
substantial and effective justice but would be so construed as to
advance the cause of justice....”
Further, the Hon'ble Supreme Court of India in Uday Shankar Triyar -vs- Ram
Kalewar Prasad Singh [(2006) 1 SCC 75], has elaborated the effect of
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W.P. (MD) No. 11571 of 2014
defective presentation of papers while instituting legal proceedings under the
Code of Civil Procedure, 1908, and held as follows:-
“15. It is, thus, now well settled that any defect in signing the
memorandum of appeal or any defect in the authority of the
person signing the memorandum of appeal, or the omission to
file the vakalatnama executed by the appellant, along with the
appeal, will not invalidate the memorandum of appeal, if such
omission or defect is not deliberate and the signing of the
memorandum of appeal or the presentation thereof before the
appellate court was with the knowledge and authority of the
appellant. Such omission or defect being one relatable to
procedure, can subsequently be corrected. It is the duty of the
office to verify whether the memorandum of appeal was signed
by the appellant or his authorised agent or pleader holding
appropriate vakalatnama. If the office does not point out such
defect and the appeal is accepted and proceeded with, it cannot
be rejected at the hearing of the appeal merely by reason of such
defect, without giving an opportunity to the appellant to rectify
it. The requirement that the appeal should be signed by the
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W.P. (MD) No. 11571 of 2014
appellant or his pleader (duly authorised by a vakalatnama
executed by the appellant) is, no doubt, mandatory. But it does
not mean that non-compliance should result in automatic
rejection of the appeal without giving an opportunity to the
appellant to rectify the defect. If and when the defect is noticed
or pointed out, the court should, either on an application by the
appellant or suo motu, permit the appellant to rectify the defect
by either signing the memorandum of appeal or by furnishing
the vakalatnama. It should also be kept in view that if the
pleader signing the memorandum of appeal has appeared for
the party in the trial court, then he need not present a fresh
vakalatnama along with the memorandum of appeal, as the
vakalatnama in his favour filed in the trial court will be
sufficient authority to sign and present the memorandum of
appeal having regard to Rule 4(2) of Order 3 CPC, read with
Explanation (c) thereto. In such an event, a mere memo
referring to the authority given to him in the trial court may be
sufficient. However, filing a fresh vakalatnama with the memo of
appeal will always be convenient to facilitate the processing of
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W.P. (MD) No. 11571 of 2014
the appeal by the office.
16. An analogous provision is to be found in Order 6 Rule 14
CPC which requires that every pleading shall be signed by the
party and his pleader, if any. Here again, it has always been
recognised that if a plaint is not signed by the plaintiff or his
duly authorised agent due to any bona fide error, the defect can
be permitted to be rectified either by the trial court at any time
before judgment, or even by the appellate court by permitting
appropriate amendment, when such defect comes to its notice
during hearing.
17. Non-compliance with any procedural requirement relating
to a pleading, memorandum of appeal or application or petition
for relief should not entail automatic dismissal or rejection,
unless the relevant statute or rule so mandates. Procedural
defects and irregularities which are curable should not be
allowed to defeat substantive rights or to cause injustice.
Procedure, a handmaiden to justice, should never be made a
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W.P. (MD) No. 11571 of 2014
tool to deny justice or perpetuate injustice, by any oppressive or
punitive use. The well-recognised exceptions to this principle
are:
(i) where the statute prescribing the procedure, also
prescribes specifically the consequence of non-
compliance;
(ii) where the procedural defect is not rectified, even after
it is pointed out and due opportunity is given for
rectifying it;
(iii) where the non-compliance or violation is proved to be
deliberate or mischievous;
(iv) where the rectification of defect would affect the case
on merits or will affect the jurisdiction of the court;
(v) in case of memorandum of appeal, there is complete
absence of authority and the appeal is presented
without the knowledge, consent and authority of the
appellant.”
There cannot be any doubt that the aforesaid principles would squarely apply to
the proceedings under the EPF Act as well. If the application for review filed by
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W.P. (MD) No. 11571 of 2014
the Petitioner had not been filed in the prescribed format with the authorization
of the signatory, the proper recourse would have been only to return the same to
the Petitioner requiring the review application to be re-submitted complying
with those requirements. Likewise, the Petitioner would have to be afforded an
opportunity of personal hearing after taking the application for review on record
to explain his position that the new materials or evidence were not within his
knowledge earlier, before arriving at any conclusion in that regard. In such
circumstances, the supercilious manner in which the application filed by the
Petitioner was straightaway rejected by the Respondent by impugned Order No.
TN/NGL/20854/Enf(32)2013 dated 25.03.2014 at threshold without carrying
out the aforesaid exercise cannot be sustained.
6. The result of the foregoing discussion is that the Writ Petition is disposed
on the following terms:-
(i) the impugned Order No. TN/NGL/20854/Enf(32)2013 dated 25.03.2014
passed by the Respondent rejecting the application made by the Petitioner
under Section 7-B of the Act, is quashed;
(ii) the Petitioner shall re-submit the application for review in the prescribed
format with authorization of the signatory and the supporting materials
on or before 30.09.2021 along with a copy of this order;
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W.P. (MD) No. 11571 of 2014
(iii) if it is found that the Petitioner has not satisfied the prescribed
requirements for entertaining the review application, the defects in that
regard shall be informed in writing to him requiring the same to be
furnished within a time frame of not less than 10 working days;
(iv) in the event of the Respondent not being satisfied with the compliance of
the requirements even thereafter, an enquiry shall be conducted affording
full opportunity of personal hearing to the Petitioner to explain his
position in that regard;
(v) the Respondent shall pass reasoned orders dealing with each of the
contentions raised on merits and in accordance with law and
communicate the decision taken to the Petitioner under written
acknowledgment;
(vi) Inasmuch as the Petitioner has filed the application under Section 7-B of
the EPF Act for review of the Order in File No. TN/NGL/Enf/Circle
32/20854/2013 dated 30.01.2014 passed by the Respondent, the
proceedings initiated vide Order No. TN/NGL/20854/Enf/Circle
32/8F/2012 dated 12.03.2014 under Section 8-F of the EPF Act for
recovery in furtherance thereto shall be kept in abeyance and further
course of action shall depend upon the outcome in that Review
Application;
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W.P. (MD) No. 11571 of 2014
(vii) consequently, the connected Miscellaneous Petitions are closed; and
(viii) there shall be no order as to costs.
24.06.2021
Ns/vjt
Index: Yes/No
Note: (i) Issue order copy by 20.09.2021.
(ii) In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the
order that is presented is the correct copy, shall be the
responsibility of the advocate / litigant concerned.
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W.P. (MD) No. 11571 of 2014
P.D.AUDIKESAVALU,J.
Ns
To
The Assistant Provident Fund Commissioner,
The Assistant Provident Fund Office,
Employees Fund Organization,
Sub Regional Office,
66, Water Tank Road,
Nagercoil-629 001,
Kanyakumari District.
W. P. (MD) No. 11571 of 2014
24.06.2021
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