JUDGMENT

Orders under Sections 7A seeking recall of the order and 7B seeking review of the order, of the Employee's Provident Funds & Miscellaneous Provisions Act, 1952 have been assailed in this writ petition without availing the remedy of appeal provided under the Rules and Act, on account of the fact that the Enforcement Officer of the respondent inspected the premises of the petitioner and in support prepared the mahazar, allegedly found that 101 non-enrolled construction workers worked during the period September 2014 to April

2016 and therefore liable to pay the charges and penalty. 2. Learned counsel appearing on behalf of the petitioner submitted that show-cause notice in respect of the aforementioned inspection was received by the petitioner on 3.12.2019, which was served on 8.1.2020. It advised the employer for submission of relevant records. On perusal of the details of the enquiry and the proceedings, it is seen that no effective opportunity was given when the matter was taken after a gap of almost one year as due to Covid no proceedings were initiated from 16.4.2020 till 16.3.2021. She further contends that it would not be appropriate for the petitioner to raise the plea on grounds and confine the arguments only with regard to the effective and proper opportunity as it would be in the domain of the authorities to ponder upon the merits of the matter when opportunity is granted to the parties. Even in the review petition authority reiterated the findings as recorded in the proceedings under Section 7A.

3. On the other hand learned counsel for the respondent, Provident Fund Commissioner, submits that intimation of the hearing was provided to the petitioner in the Email address provided, but neither the representative nor any of the lawyer engaged by the petitioner nor any authorised representative appeared. Even otherwise the efficacious remedy of appeal has not been availed. Therefore the Writ Petition is liable to be dismissed.

4. I have heard the counsel for the parties and appraised the paper book.

5. From the chart detailed in the petition, it is evident that after the authorised representative had put in appearance and supplied the documents on 19.3.2020. On the next posting i.e., 16.4.2020 hearing of the enquiry was deferred to 17.3.2021, almost after a gap of 11 months. It has also been noted that nobody attended the enquiry and findings have been arrived at against the petitioner imposing the liability as referred to in the order Ext.P8 dated 15.4.2021. The petitioner preferred a review petition and asked for a rehearing. It also did not achieve the result, resulting into dismissal vide order dated 1.10.2021 Ext.P10. The officers who have been assigned the duty to conduct the enquiry are to hold the proceedings in a reasonable and pragmatic manner, but not strictly going by the file. On 16.4.2020 when the next date was given, it was presumed that the hearing of the aforementioned enquiry was in the knowledge of the petitioner. Even if it was, one effective opportunity ought to have been given by adjourning the matter, so that the documents submitted in support of thereof could be deliberated upon, which has resulted into one sided order which is not sustainable in the eyes of law. As an upshot of my finding, orders Exts.P8 dated 15.04.2021 and P10 dated

1.10.2021 are quashed.

The Writ Petition is allowed. The matter is relegated to the Assistant Provident Fund Commissioner, Kochi for revisiting the issue after affording an opportunity of hearing to the petitioner and the concerned officers of the Department. The petitioner is at liberty to place on record the additional documents if they choose so, in support of their plea and take a call on the same within a period of two weeks from the date of receipt of a certified copy of the judgment. Till such time the interim order granted by this Court shall continue.

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AMIT RAWAL JUDGE csl APPENDIX OF WP(C) 28088/2021 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE S