VINAYAKA MISSION LORD JAGANNATH INSTITUTION OF DENTAL SCIENCE AND RESEARCH Vs. ASSISTANT PROVIDENT FUND COMMISSIONER AND ANOTHER

JUDGEMENT

(1.) This writ petition is against the order dtd.25.7.2005 passed in A.T.A. No.169(10) of 2004 by the Employees Provident Fund Appellate Tribunal whereby and where under the appeal preferred by the petitioner has been dismissed and also to quash Annexure -4 which is an order passed U/s.7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 and to permit the petitioner to produce all the necessary documents to complete the 7A proceeding under Employees Provident Fund and Miscellaneous Provisions Act, 1952.

(2.) The brief fact of the case of the petitioner is that the petitioner being a Dental College established in the State of Orissa situated at Bhubaneswar started admitting students for the academic session 1998 -99. The Enforcement Officer of the Employees Provident Fund Organization issued a notice to produce several documents fixing the date of hearing as 10.4.1999. However, without verification of the document the petitioner - establishment was covered under the purview of the Act w.e.f.16.1.1998 and it was allotted Code No.OR/5695. On the basis of an anonymous letter, a proceeding U/s.7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as ,,the Act 1952) was initiated and an order was passed by the authority U/s.7a of the Act. According to the petitioner the order passed U/s.7A was an exparte order, hence an application U/s.7(A)(4) of the Act, 1952 was filed to set aside the ex -parte order which was disposed of vide order dtd.15.10.2003, but however, the prayer of the petitioner was rejected. The petitioner being aggrieved with the order dtd.6.6.2003 passed U/s.7A had filed writ petition being W.P.(C) No.8551 of 2003 and while the writ petition was pending before this court, an appeal was also preferred before the Appellate Tribunal being A.T.A. No.169(10) of 2004 on 10.3.2004. While the appeal was pending, writ petition being W.P.(C) No.8551 of 2003 was dismissed vide order dtd.22.3.2004. While the appeal was pending before the Tribunal a summon was issued by the Recovery Officer whereby and where under the petitioner was informed that a certificate case being C.C. No.73 of 2004 has been initiated against the petitioner for recovery of Rs.32,20,169/ - as assessed U/s.7A proceeding. The petitioner having no option had again moved this court vide writ petition being W.P.(C) No.13681 of 2004, since the appeal could not be admitted as no Presiding Officer was appointed in the Appellate Tribunal, hence this court vide order dtd.21.12.2004 stayed the further proceeding of certificate case on payment of Rs.2 lakhs and the writ petition was subsequently been withdrawn vide order dtd.28.2.2005 after the Presiding Officer of the Appellate Tribunal was appointed. The Appellate Tribunal has not condoned the delay in view of provision of Sub -Rule -(2) of Rule 7 of the E.P.F. Appellate Tribunal (Procedure) Rules, 1997 vide order dtd.25.7.2005 and dismissed the appeal, being aggrieved the petitioner is before this court by way of this writ petition.

(3.) Learned Sr. Counsel appearing for the petitioner has submitted that the proceeding U/s.7A of the Act was an ex -parte order since he has not been provided with an opportunity of being heard, however he has filed an application for recall of the ex -parte order passed U/s.7A of the Act by making an application U/s.7A(4), however the same has also been rejected. While arguing the case for the petitioner it has been contended that the order passed by the authority U/s.7A of the Act is absolutely mechanical and without application of mind since the same has been passed without considering the fact that the Dental College has not yet started its functioning.