JOSEPH A V Vs. ASSISTANT PROVIDENT FUND COMMISSIONER

JUDGEMENT

(1.) Sustainability of Ext. P8 order passed by the first respondent under section 7-A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the 'Act') fixing the liability to effect contribution on the petitioner in respect of the workers of the Canteen attached to the hospital of the petitioner and determining the due amounts, followed by the consequential order passed by the first respondent freezing the bank account of the petitioner vide Ext. P11 is the subject-matter of challenge in this Original Petition

(2.) The petitioner filed Ext. P3 reply in response to Ext. P2 show-cause notice asserting that he is not liable to effect any contribution as he cannot be considered as the employer under the relevant provisions of law. Pursuant to the further steps, the first respondent, after considering the materials brought to light passed Ext. P8 order holding that the petitioner was very much liable to effect the contributions in respect of the workers engaged in the Canteen (though they were engaged by/through the contractor) and the amount payable by way of contributions was quantified and conveyed to the petitioner. Aggrieved by the said order, the petitioner filed a review petition (Ext. P9) along with Ext. P10 petition to condone the delay, before the first respondent, invoking the provisions under section 7-B of the Act. According to the petitioner, it was during pendency of the above review petition that the first respondent passed Ext. 11 order freezing the account of the petitioner with the second respondent- Bank, which hence is assailed by filing the above original petition.

(3.) The first respondent has filed a counter-affidavit disputing the claim reliefs prayed for in the Original Petition. The averment/allegation of the petitioner that the first respondent had proceeded to pass the coercive order by Ext. P 11 during the pendency of the review petition, has also been categorically denied, referring to the relevant dates. According to the said respondent, the above review petition was filed only on 23.4.2003, whereas the Present Original Petition was filed much before the same, i.e. on 10.4.2003 and thus it is contended that there is manifest misrepresentation. Obviously, Ext. P9 review petition is not dated and so also is the case with Ext. P10 affidavit and the petition seeking to condone the delay in filing the same. However, there is an averment in paragraph No. 2 as well as in paragraph No. 4 of the affidavit filed in support of the petition to condone the delay in filing the review petition, that the review petition was "being filed on 10.4.2003". The Original Petition is seen filed on 10.4.2003. As such, no 'wilful misrepresentation' can be attributed on the petitioner in this regard, though the review petition, due to some or other unavoidable reasons would have been presented before the first respondent on a subsequent date.