PROMOD NATH Vs. REGIONAL PROVIDENT FUND COMMISSIONER

JUDGEMENT

(1.) This writ petition seeks quashing of the order dated 6 th November, 1998 of the respondent/Regional Provident Fund Commissioner (RPFC) dismissing the application dated 22nd August, 1998 of the petitioner for setting aside the ex parte order dated 20th February, 1998 under Section 7A of the Employees' Provident Funds & Miscellaneous Provisions Act, 1952. The petitioner further seeks the relief of allowing the application of the petitioner for setting aside of the ex parte order dated 20th February, 1998 and direction to the respondent to hear the petitioner and thereafter pass a fresh order under Section 7 A of the Act. This Court vide ex parte order dated 4th June, 1999 while issuing notice of the petition to the respondent stayed the operation of the recovery certificates issued by the respondent pursuant to the ex parte order under Section 7A of the Act. The writ petition was disposed of vide order dated 21st January, 2000 on the premise that the order under Section 7A of the Act is appealable under Section 7-I of the Act and giving liberty to the petitioner to approach the Appellate Authority. However, the said order so disposing of the writ petition was recalled on 26th May, 2000 finding that the order impugned in this petition i.e. of dismissal of the application for setting aside of the ex parte is not appealable. Subsequently on 6th September, 2000, the ex parte order dated 4th June, 1999 was made absolute during the pendency of the petition.

(2.) This Court is therefore in this petition only concerned with the validity of the order dated 6th November, 1998 of the respondent dismissing the application of the petitioner under Section 7A(4) of the Act for setting aside of the ex parte order dated 20th February, 1998 under Section 7A of the Act and not with the merits of the order dated 20 th February, 1998 where against appeal lies before the Appellate Authority.

(3.) The petitioner as sole proprietor was carrying on business in the name and style of Promod Nath & Co. The senior counsel for the petitioner has informed that the petitioner is now over 80 years of age and has closed down the business and the present petition is being pursued only because of the claim raised by the respondent pursuant to the ex parte order dated 20th February, 1998. It is the case of the petitioner and not disputed by the respondent that the respondent vide letter dated 10th September, 1968 provisionally covered the establishment aforesaid of the petitioner under the provisions of the Act w.e.f. 1st January, 1968. It is the case of the petitioner that he made a representation to the respondent that it had acquired the premises for commencing the business only in August, 1963 and had commenced operations of the aforesaid establishment in or about December, 1963 and that the employees working in it were less than 50 in number; that for five years up to December, 1968 and or in any case till August, 1968 counted from the date of acquisition of the premises, the business was in a stage of infancy and exempt from operation of the Act. The petitioner contends that though he was assured by the officials of the respondent that the order covering the establishment of the petitioner under the provisions of the Act w.e.f. 1st January, 1968 would be revoked but though no revocation order was made but no action also was taken by the respondent and which led the petitioner to believe that the representation of the petitioner had been accepted. It is further the case of the petitioner that thereafter for the first time vide letter dated 2nd January, 1982 the respondent asked the petitioner to show records to examine the applicability of the Act and to which the petitioner responded that it was maintaining records for seven years only as required by law and did not have earlier records available with him.