M/S.Stardrive Busducts Ltd., v. The Assistant Provident Fund Commissioner - C And R
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.10.2019
CORAM
THE HONOURABLE MR.JUSTICE S.M. SUBRAMANIAM W.P.No.22110 of 2019 and W.M.P.No.21375 of 2019 M/s.Stardrive Busducts Ltd., Formerly known as KGS Engineering Limited, Current Address:- New No.55, Teachers Colony, Kamaraj Avenue, Adyar, Chennai-20.
Earlier Address:- No.63, Kamaraj Avenue, Adyar, Chennai-20.
Rep., by its Vice President, V.Senthil Kumar.
.. Petitioner -vsThe Assistant Provident Fund Commissioner - C & R, Employees Provident Fund Organisation, 37, Royapettah High Road, Chennai-600 014.
.. Respondents Petition under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus calling for the records of the respondent in proceedings TN/9215-A/CHSouth/Comp-Div-14/8F/Regl/2018 dated 22.08.2019, quash the same and direct the respondent to hear the Review Application on merits.
[Amended vide order dated 21.10.2019 in W.M.P.No.29884 of 2019 in W.P.No.22110 of 2019] For Petitioner :Mr.Anand Gopalan For M/s.T.S.Gopalan & Co.
For Respondent :Mr.T.R.Sundaram ******
ORDER
The relief sought for in the present writ petition is to quash the proceedings of the respondent dated 22.08.2019 in Proceedings No.TN/9215-A/CH-South/Comp-Div-14/8F/Regl/2018 and direct the respondent to hear the review application on merits.
2. The only grievance of the writ petitioner is that the issues raised by the petitioner were not adjudicated on merits by the respondent. Contrarily, the petition was rejected on the ground of delay. Thus, the petitioner had no opportunity to place the documents and adjudicate the issues on merits enabling him to get the petition adjudicated in the light of the orders passed by the Hon'ble Supreme Court of India.
3. In this regard, the learned counsel for the writ petitioner cited an order of this Court in the case of M/s.TVS Logistics Services Limited vs. The Regional Provident Fund Commissioner-I in W.P.No.8352 of 2019, dated 13.09.2019. The relevant paragraphs are extracted hereunder:- "2. The learned counsel for the writ petitioner states that Section 7A order was passed by respondent on 08.08.2014. Challenging the said order, the petitioner filed W.P.No.6846 of 2014 and this Court passed an order dated 05.03.2014 and the relevant paragraphs are extracted hereunder:
"7. As I have already pointed out, the only issue which needs to be resolved in this matter is as to whether the allowances enumerated herein above which are paid to the employees shall be concluded in the basis wages for the purpose of payment of EPF Contribution. There are judgments taking conflicting views. So far as this Court is concerned, in a batch of writ petitions in E.P.No.15823 of 2010, etc., by order dated 07.06.2011, the Hon'ble Mr.Justice K.Chandru has held that these allowances should be included into basis wages. As against the same, an appeal has been filed in W.A.No.1087 of 2011 wherein, a Division Bench of this Court has granted an interim order of stay of the said order [vide Court dated 11.07.2011]. Subsequently, a number of interim orders have been passed by the learned Single Judges in a similar fashion.
8. In my considered opinion, the above
issue now needs to be resolved by the Hon'ble Supreme Court. While granting interim order of stay, the Hon'ble Supreme Court has, however, permitted the Provident Fund Organisation to proceed with the assessment and to pass a final order. However, the Hon'ble Supreme Court has directed that there shall be no demand raised based on such assessment. In the case on hand also, in my considered opinion, the respondents may be permitted to go ahead with the assessment, but, as directed by the Hon'ble Supreme Court in SLP © No.8781-8782/12. However, it is made clear that this order will not in any manner preclude the respondents from making demand based on the basic wages not including the above allowances".
3. During the relevant point of time, when the final order was passed in the writ petition, the SLP was pending before the Hon'ble Supreme Court of India. Thus, this Court also passed final order stating that the order passed need not be implemented till the final disposal of the case pending before the Hon'ble Supreme Court of India. It is brought to the notice of this Court, that the Hon'ble Supreme Court of India passed final orders in the matter on 28.02.2019. Pursuant to the orders passed by the Hon'ble Supreme Court of India, the writ petitioner has filed the Review Petition under Section 7B of the Act. The said Review Petition has not been taken up for hearing on the ground that the Section 7A order was passed in the year 2014 and the necessary grounds in this regard were not raised during the appropriate time.
4. This Court is of the considered opinion that based on the fact that the issues were pending before the Hon'ble Supreme Court of India and this Court also had not adjudicated the matter on merits. Contrarily, the writ petition was disposed of on the ground that the writ petitioner is at liberty to approach the competent authority after the disposal of the SLP by the Hon'ble Apex Court of India. Thus, the issues were not adjudicated on merits, during the relevant point of time. Undoubtedly, the scope of Review Petition is limited. However, considering the facts and circumstances and further issues were not adjudicated on merits and the Competent Authority
shall consider all these aspects by entertaining the Review Application filed by the writ petitioner, adjudicate the same and pass orders in the light of the legal principles settled by the Hon'ble Supreme Court of India, in order dated 28.02.2019.
5. The learned counsel for the respondent is right in saying that such ground ought to have been raised during the appropriate time by the writ petitioner. The writ petitioner is entitled to adjudicate the matter, in view of the fact that the issues were subjudiced during the relevant point of time before the Hon'ble Supreme Court of India. This Court also passed an order granting liberty to approach the Competent Authority after the disposal of the case by the Hon'ble Supreme Court of India. This being the circumstances aroused in this case, this Court is inclined to pass following orders:
a) The impugned order dated 08.08.2014, passed in proceedings TN/CHN/CCI/17/TN60639/Enf/2014, by the respondent, is quashed b) The respondent is directed to entertain the Review Application filed by the writ petitioner and adjudicate the matter on merits and in accordance with law by affording the opportunity to all the parties concerned. The said exercise of concluding the proceedings shall be completed within a period of 12 weeks from the date of receipt of a copy of this order."
4. In view of the order cited supra, this writ petition is allowed and the impugned order dated 22.08.2019, in Proceedings No.TN/9215-A/CH-South/Comp-Div-14/8F/Regl/2018 passed by the respondent is quashed.
4(i) The respondent is directed to entertain the review application filed by the writ petitioner and adjudicate the petition on merits and in accordance with law by affording opportunity to all the parties concerned.
4(ii) The said exercise of concluding the proceedings shall be completed by the respondent within a period of twelve weeks' from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar(CS-VIII) //True Copy// Sub Assistant Registrar
abr To The Assistant Provident Fund Commissioner - C & R, Employees Provident Fund Organisation, 37, Royapettah High Road, Chennai-600 014.
+1cc to Mr.T.S.Gopaln & Co, Advocate SR.87667 +1cc to Mr.T.R.Sundaram, Advocate SR.87833 W.P.No.22110 of 2019 RR(CO) CB(04/12/2019)