Point of Law: Electronic Video Linkage Rules for Courts (Kerala), 2021 - Rules have no applicability to proceedings before the Provident Fund Commissioners, which are not judicial proceedings.

JUDGMENT :

Petitioner's request for an opportunity for cross-examining the enforcement officer through physical mode rather than through virtual mode and for the physical mode of hearing was declined by the Regional Provident Fund Commissioner in proceedings under section 7-A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for short the EPF Act).

2. Petitioner contends that cross-examining the enforcement officer through virtual mode is practically ineffective and would not serve the purpose, especially in the light of the voluminous nature of information and materials to be confronted with in the instant case, and will practically amount to infringing his rights under the principles of natural justice. It was argued that this was a fit case to permit a physical mode of cross-examination and hearing.

3. In the statement filed on behalf of the respondent, it is pleaded that the issue arises under section 7-A of the Act pursuant to an order of remand from the Central Government Industrial Tribunal Cum Labour Court, Ernakulam. It was further averred that petitioner’s request to have a physical mode of cross-examination and hearing was denied, based upon the directions issued by the head office of the Employees Provident Fund Department, which directed the conduct of cases through virtual hearing and by video conferencing. It was stated therein that for the last more than one year, due to Covid-19 protocol and restrictions, all courts and quasi-judicial authorities have been following virtual hearing and since new rules have been framed for virtual hearing and examination of witnesses, the order declining the request of the petitioner based upon Annexure R(A) Circular dated 01.10.2020, does not warrant any interference.

4. I have heard Adv. Ashok B. Shenoy, learned counsel for the petitioner as well as Dr. Abraham P. Meachinkara, learned Standing Counsel for the respondent.

5. Petitioner's request to have a physical mode of cross-examination and hearing was declined by the respondent by Ext.P8 order, the relevant part of which reads as below;

“The request of the advocate for extending time of appearance in view of covid 19 pandemic is allowed. With regard to his request for conduct of hearing in physical mode is not possible for the very reason of existence of covid-19 pandemic. However, all assistance including providing of terminal with internet connection with (sic) be available in the office premises for employer of representative of the employer. As such the next hearing will be conducted through virtual mode only in the link to be provided through e-mail. The prayer to arrange for cross examine of Enforcement Officer who had visited the establishment is accepted and Smt. Bonnysha U.B., the then Enforcement Officer will be available for cross examine in the next date of hearing.

The case is accordingly posted to 06.09.2021 at 11 am.”

6. The existence of Covid-19 pandemic is stated to be the reason for denying the request of the petitioner for a physical mode of cross-examination and hearing. However, the virtual mode of hearing and cross-examination has been permitted.

7. The denial of the request for a physical mode of cross-examination and hearing is purported to be based upon the Circular dated 01.10.2020, issued by the Employees Provident Fund Organisation wherein, it was directed that hearing in all enquiry cases under sections 7A and 14B of the Act, including cases remanded by higher judicial forums for fresh adjudication, were to be held in virtual mode only.

8. The objectives of video conferencing system launched by the EPF is stated to be :

i. Enable Adjudicating Officers (AO) to discharge their quasi-judicial duty to hear parties for adjudicating the issues under inquiry

ii. Enable parties to make submissions, present their case & file documents from remote location of their convenience instead of physical appearance before the AO at EPFO Office

iii. Integration of Virtual hearings with e-Court process