# Chandra Shekhar Azad Univ.of Agri.& Tech.,Kanpur v. Regi. Provi. Fund Comm-II, Kanpur & Anr

- **Citation:** (2019) 3 ILRA 1471
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-19
- **Case number:** Writ C No. 1914 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-shekhar-azad-univ-of-agri-tech-kanpur-v-regi-provi-fund-comm-ii-kanpur-44780
- **Pages:** 11

## Headnote

A. Constitution of India - Art. 226 -
Employees
Provident
Funds
and
Miscellaneous Provisions Act, 1952 -
Section 7-A, 7-B, 7-I - Writ - Alternative
remedy against an order rejecting review
- of Employee's Provident Funds &
Miscellaneous Provisions Act, 1952 -
Section 7-B makes it clear that no appeal
shall lie against an order rejecting a
review application - In Writ petition
against such review order, the original
order passed u/s 7-A would not be under
scrutiny
and
order
rejecting
review
application would leave order u/s 7-A not
only intact, but there would be no merger
with the order passed u/s 7-B - Here,
the petitioner challenged both orders
passed u/s 7-A as well as u/s 7-B - In
review order the Court proceeded to open
up the entire case of parties vis-a-vise
determination of Petitioner's liability on
merit - This bring the impugned order
into that class which is envisaged u/s 7B(5) and therefore appealable u/s 7-I of
the Act. (Para 13, 14, 15, 16 & 18)
Writ petition dismissed (E-1)

Cases relied on: -

## Text

3 All. Chandra Shekhar Azad Univ. of Agri.& Tech. Kanpur Vs. Regi.Provi.Fund Comm. II Kanpur & Anr. 1471
drawn for the purpose of calculation of
gratuity payable to the employee under
Section 4(2) of the Act, any sum of money
like House Rent Allowance or City
Compensatory Allowance, which does not
qualify for wages under the Act. The said
plea has been taken for the first time before
this Court in paragraph 20 of the writ
petition, but not before the two Authorities
below. Prima facie from the record, it is not
apparent that House Rent Allowance or City
Compensatory Allowance has been added
to the wages last drawn by the Authorities,
while calculating gratuity payable to the
employee under Section 4(2) of the Act.
The issue, therefore, is a pure question of
fact which cannot be permitted to be raised
for the first time before this Court in a writ
petition.

18. This Court may record here that
the same position on facts and the state of
pleadings holds true for the other
employees,
in
the
connected
writ
petitions. In the above premises, this
Court does not find any good ground to
interfere with the impugned orders.

19. In the result, all the writ
petitions are dismissed with costs.
Interim orders passed, are hereby vacated.
----------

(2019)9ILR A1471

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2019

BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ C No. 1914 of 2019

Chandra Shekhar Azad Univ.of Agri.&
Tech.,Kanpur ...Petitioner
Versus
Regi. Provi. Fund Comm-II, Kanpur &
Anr. ...Respondents

Counsel for the Petitioner:
Sri Sanjay Kumar Tripathi, Sri Satyendra
Chandra Tripathi

Counsel for the Respondents:
Sri Sachindra Upadhyay, Sri Kartikeya
Saran

A. Constitution of India - Art. 226 -
Employees
Provident
Funds
and
Miscellaneous Provisions Act, 1952 -
Section 7-A, 7-B, 7-I - Writ - Alternative
remedy against an order rejecting review
- of Employee's Provident Funds &
Miscellaneous Provisions Act, 1952 -
Section 7-B makes it clear that no appeal
shall lie against an order rejecting a
review application - In Writ petition
against such review order, the original
order passed u/s 7-A would not be under
scrutiny
and
order
rejecting
review
application would leave order u/s 7-A not
only intact, but there would be no merger
with the order passed u/s 7-B - Here,
the petitioner challenged both orders
passed u/s 7-A as well as u/s 7-B - In
review order the Court proceeded to open
up the entire case of parties vis-a-vise
determination of Petitioner's liability on
merit - This bring the impugned order
into that class which is envisaged u/s 7B(5) and therefore appealable u/s 7-I of
the Act. (Para 13, 14, 15, 16 & 18)
Writ petition dismissed (E-1)

Cases relied on: -
1. M/s Bharat Polychem Ltd. Vs Regional
Provident Fund Commissioner (2011) SCC
Online Del 2981

(Delivered by Hon'ble J.J. Munir, J.)

1. The petitioners, Chandra Shekhar
Azad University Of Agriculture And
Technology,
Nawabganj,
Kanpur,
represented through its Vice Chancellor,
have challenged an order passed by the
1472 INDIAN LAW REPORTS ALLAHABAD SERIES
Regional Provident Fund CommissionerII,
Employees
Provident
Fund
Organization, Kanpur, dated 08.02.2018,
under Section 7-A of the Employees'
Provident
Funds
&
Miscellaneous
Provisions Act, 1952 (for short, the Act)
and various statutory schemes framed
thereunder,
assessing
a
sum
of
Rs.9,76,94,899/- to be payable by the
petitioners to their employees - casual
hands and contractual employees. A
further order, that has been challenged by
the petitioners is one passed by the same
Authority on an application for review
made under Section 7-B of the Act, which
has come to be rejected by an order dated
12.04.2018. Treating the second order to
be a sequel to the first part of the same
cause of action, this writ petition under
Article 226 of the Constitution has been
filed.

2. This writ petition was filed against
the Regional Provident Fund CommissionerII, Kanpur and the Employees Provident
Fund Organization through the Regional
Provident Fund Commissioner-II, Kanpur.
The beneficiaries of the two orders of
assessment and review under the Act passed
by respondent no.1, who are a total of 641
employees, have not been impleaded to the
writ petition, or even a representative
number of them. This Court vide order dated
21.04.2019 required the respondents to the
writ petition to file a counter affidavit within
four weeks with a direction that the assessed
sum of Provident Fund and other dues, that
had been deposited by the petitioners may be
invested in an interest bearing term deposit
with a Nationalized Bank to abide by final
orders in the writ petition. A counter
affidavit on behalf of the respondents was
filed on 2nd April, 2019. The petitioners
were granted three weeks' time to file a
rejoinder
affidavit,
vide
order
dated
01.04.2019. However, no rejoinder affidavit
was filed on 30.04.2019, 20.05.2019, or until
21.05.2.2019, which were the various dates
fixed in the matter before the Court. On
21.05.2019, the writ petition was heard
finally with the consent of learned counsel
appearing for all parties, and judgment was
reserved. At this stage, it may be mentioned
that of all the 641 employees who are
beneficiaries of the two orders passed by the
respondent no.1, under challenge in this
petition,
some
filed
an
impleadment
application on 18th May, 20199, which is an
application on behalf of 111 of the 641
beneficiary employees. The said employees
supported their application for impleadment
with a detailed affidavit and documents, on
which they wish to rely before this Court.
The said impleadment application filed by
Sri Satyendra Chandra Tripathi, Advocate on
behalf of the 111 employees, would be a
representation of all the 641 beneficiary
employees, in whose favour, orders under
challenge in this petition have been passed.
The aforesaid application numbered as Civil
Misc. (Impleadment) Application No.4 of
2019 was also taken on record for orders at
the time of hearing of the writ petition. In
order to curtail prolixity of procedure, no
orders granting formal impleadment were
made on the said application. However, Sri
Satyendra
Chandra
Tripathi,
learned
Advocate, on behalf of the 111 employees,
was heard fully in support of the applicants'
case as proper parties, in accordance with the
provisions of Chapter XXII, Rule 5-A of the
Rules of Court. Sri Tripathi consented also to
the aforesaid course of action, and addressed
the Court on merits.

3. Heard Sri Sanjay Kumar Tripathi,
learned counsel for the petitioners, Sri
Kartikeya
Saran,
learned
Advocate
appearing on behalf of respondent nos.1
and 2 and Sri Satyendra Chandra Tripathi,
3 All. Chandra Shekhar Azad Univ. of Agri.& Tech. Kanpur Vs. Regi.Provi.Fund Comm. II Kanpur & Anr. 1473
learned counsel appearing on behalf of
some of the beneficiary employees, under
Chapter XXII, Rule 5-A of the Rules of
Court.

4. Sri Kartikeya Saran, learned
counsel appearing for the Employees
Provident Fund Organization has come up
with a preliminary objection that this writ
petition is not maintainable, inasmuch as,
the impugned order dated 08.02.2018
passed by respondent no.1, under Section
7-A of the Act, is appealable under
Section 7-I to the Employees' Provident
Funds Appellate Tribunal (for short, the
Tribunal).
Sri
Satyendra
Chandra
Tripathi, learned counsel appearing for
the beneficiary employees, has also
supported the said preliminary objection.
In answer to the preliminary objection as
to maintainability of this writ petition, Sri
Sanjay Kumar Tripathi, learned counsel
for the petitioners has submitted that
though the order dated 08.02.2018 is
appealable under Section 7-I of the Act,
but
the
subsequent
order
dated
12.04.2018, passed by respondent no.1 on
the
petitioners'
Review
Application
preferred under Section 7-B of the Act, is
not an appealable order. He submits that
the two orders are part of the same cause
of action, the subsequent order dated
12.04.2018 being a sequel to the first. It is
his submission that once the second of the
two orders, that is to say, the one made on
the Review Application is not appealable,
the order dated 08.02.2018, which is the
substantive order of assessment under
Section 7-A, cannot be severed from the
order subsequently made on the Review
Application. Thus, in the submission of
Sri Sanjay Kumar Tripathi, learned
counsel for the petitioners, this writ
petition
would
be
competent
and
maintainable against both the orders
impugned.

5. Sri Kartikeya Saran, learned
counsel for respondent nos.1 and 2 in
reply submits that the order of review is
not an order, that summarily rejects the
Review. It may not have formally granted
the Review by an order expressed in those
words, but that is what it has substantially
done. A perusal of the impugned order, in
the submission of Sri Saran, passed on the
Review Application under Section 7-B,
would show that the entire decided case
has been reopened, and dealt with afresh
all pleas of the petitioners urged in
opposition to assessment under the Act.
Learned counsel for respondent nos.1 and
2 submits, therefore, that the order passed
on the Review Application under Section
7-B, would fall under sub-Section (5) of
Section 7-B aforesaid, and an appeal
against it, would be maintainable under
Section 7-I, as if it were an order made
under Section 7-A. In support of his
contention, he has relied upon a decision
of the Delhi High Court in M/s. Bharat
Polychem Ltd. vs. Regional Provident
Fund
Commissioner,
2011
SCC
OnLine Del 2981. Whether the petition is
not liable to be entertained in view of an
alternative remedy being available against
both orders as Sri Kartikeya Saran urges,
would shortly be decided. But before that
is done, a brief reference to the facts of
the case leading to the two orders
impugned, would be necessary. It would
also be necessary to refer to the content,
substance and tenor of the two orders for
the purpose of determining whether the
suggested
alternative
remedy,
under
Section 7-I of the Act is open to the
petitioners.
1474 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Shorn of unnecessary detail, the
petitioners
who
are
a
University,
governed by the provisions of the
Agriculture and Technology University
Act, 1958, and in receipt of grant from the
State Government, have come up with a
case that they are governed by an Act and
Rules framed thereunder, regulating the
service conditions of their employees. It
is urged that the Act governing the
University, or Rules governing service
conditions of their employees, do not
make provision for payment of Provident
Fund
or
Pension
to
daily-wage
employees,
like
the
applicants
for
impleadment here, or others like them in
whose favour respondent no.1 has passed
the impugned order of assessment, dated
08.02.2018. A reading of the petition
shows that they had raised challenge to
the applicability of the Act at an initial
stage when the respondent, Employees
Provident Fund Organization issued a
letter dated 02.02.2010, requiring them to
provide information sought there for the
purpose of assessment under the Act,
through Writ - C No.24264 of 2010, filed
before this Court. The said writ petition
was primarily founded on the premise that
the provisions of the Act are not
applicable
to
the
petitioners,
the
University.
This
Court,
however,
dismissed the said writ petition holding
that the objection was premature, and if
adjudicated, would amount to prejudging
the issue. The petitioners were granted
liberty to file a reply to the said letter
within
two
weeks
requiring
the
respondent, Employees Provident Fund
Organization to take a decision in the
matter
after
consideration
of
the
petitioners' reply. It appears that no reply
to the letter dated 02.02.2010 was filed,
and on 09.02.2010, the petitioners were
allotted Code no. UP-47245, acting on the
basis of letter no.1727, dated 21.01.2010,
written by the petitioners to the State
Government with a copy addressed to the
second respondent, where it was indicated
that the petitioners have employees more
than 20. An Enforcement Officer of the
Corporation
visited
the
petitionerUniversity, and submitted a report, dated
27.01.2016, along with a list of 663
employees, who were not covered under
the General Provident Fund or other
Government Provident Fund Scheme.
These employees were indicated to be
casual hands, retained on contract, by the
petitioner-University. It was on the basis
of the said report that a notice, dated
11.07.2017 was issued by respondent no.1
under Section 7-A of the Act to the
petitioners, informing them that they were
covered under the provisions of the Act
and
Schemes
framed
thereunder,
initiating an inquiry under Section 7-A of
the Act.

7. It is the petitioners' case that
during the course of inquiry under Section
7-A, the Enforcement Officer examined
various records of the petitioners, and
drew up a report dated 10.01.2018. The
statement of the Enforcement Officer was
recorded in the Section 7-A proceedings
on 11.01.2018. The Enforcement Officer
is said to have stated that the date of
coverage of assessment agaisnt the
petitioner establishment be shifted back to
01.01.2000, whereas in the notice under
Section 7-A of the Act, the indicated
period of coverage was from 21.01.2010
to 31.05.2017, relating to 663 employees.
Now, during inquiry the number of
employees was reduced to 641, but the
period was expanded. On the basis of
inquiry under Section 7-A of the Act, an
order dated 08.02.2018 was passed
assessing a sum of Rs.9,76,94,899/-
3 All. Chandra Shekhar Azad Univ. of Agri.& Tech. Kanpur Vs. Regi.Provi.Fund Comm. II Kanpur & Anr. 1475
against
the
petitioners,
towards
outstanding dues of Provident Fund and
other related Schemes under the Act, for
the period 01.01.2004 to 31.05.2017,
reckoned on the basis of a strength of 641
beneficiary employees. The petitioners
appear to have filed an Application for
Review on 27.03.2018, under Section 7-B
of the Act before respondent no.1,
seeking review of his order dated
08.02.2018, made under Section 7-A. The
said Application for Review has come to
be rejected by means of an order, dated
12.04.2018.

8. Aggrieved, the present writ
petition has been filed.

9. The petitioners on merits have
challenged both orders primarily on
grounds that the period of assessment has
been enlarged from what it was in the
notice dated 11.07.2017, issued under
Section 7-A of the Act. It is the
petitioners' contention that the assessment
order could not have enlarged the period
of coverage, from what was mentioned in
the notice under Section 7-A, inasmuch
as, a fresh notice for the extended period
would have to be issued, or proceedings
taken
afresh
under
Section
7-A.
Regarding this requirement of issuing a
fresh notice, or undertaking a fresh
inquiry in case of expansion of the period
of coverage as mentioned in the notice
under Section 7-A of the Act, the
petitioners have relied upon guidelines for
quasi-judicial proceedings under Section
7-A of the Act, dated 06.08.2014, issued
by
the
Employees
Provident
Fund
Organization, Head Office, New Delhi, in
particular, guidelines (k) and (m).

10. Regarding the order dated
12.04.2018
rejecting
the
Review
Application, it is urged on behalf of the
petitioners that the Review has been
thrown out merely because it was not in
the prescribed Form no.9, which could
not be a ground to reject a Review,
without provision of opportunity to the
petitioners to file in proper form. It is also
said in assail of the order passed under
Section 7-B that the Review has been
rejected as barred by time, whereas it is
manifestly within time. It is also urged
with particular emphasis that the first
respondent ought to have decided the
Review
Application
made
by
the
petitioners under Section 7-B on merits,
granting review of the order dated
08.02.2018. According to the petitioners,
after grant of review, fresh orders under
Section 7-A should have been passed
under the circumstances as there were
good grounds to grant review and re-hear
parties in the substantive proceedings.

11. This Court may say at once that
so far as the impugned order dated
08.02.2018 is concerned, the same is an
order of assessment passed under Section
7-A, and is clearly appealable to the
Tribunal under Section 7-I of the Act.
There is no quarrel about that issue, and
the learned counsel for the petitioners also
does not dispute that proposition.

12. What is in issue is whether the
Order 7-B is appealable by virtue of
Section 7-B(5) of the Act. Here, it would
be gainful to refer the provisions of
Section 7-B of the Act, that are quoted in
extenso:

"7-B. Review of orders passed
under Section 7-A.--(1) Any person
aggrieved by an order made under subsection (1) of Section 7-A, but from
which no appeal has been preferred under
1476 INDIAN LAW REPORTS ALLAHABAD SERIES
this Act, and who, from the discovery of
new and important matter or evidence
which, after the exercise of due diligence
was not within his knowledge or could
not be produced by him at the time when
the order was made, or on account of
some mistake or error apparent on the
face of the record or for any other
sufficient reason, desires to obtain a
review of such order may apply for a
review of that order to the officer who
passed the order:

Provided that such officer may
also on his own motion review his order if
he is satisfied that it is necessary so to do
on any such ground.

(2) Every application for review
under sub-section (1) shall be filed in
such form and manner and within such
time as may be specified in the Scheme.

(3) Where it appears to the
officer receiving an application for review
that there is no sufficient ground for a
review, he shall reject the application.

(4) Where the officer is of
opinion that the application for review
should be granted, he shall grant the
same:

Provided that,--

(a) no such application shall be
granted without previous notice to all the
parties before him to enable them to
appear and be heard in support of the
order in respect of which a review is
applied for, and

(b) no such application shall be
granted on the ground of discovery of
new matter or evidence which the
applicant alleges was not within his
knowledge or could not be produced by
him when the order was made, without
proof of such allegation.

(5) No appeal shall lie against
the order of the officer rejecting an
application for review, but an appeal
under this Act shall lie against an order
passed under review as if the order passed
under review were the original order
passed by him under Section 7-A."

(Emphasis by Court)

13. A reading of the provisions of
Section 7-B of the Act makes it clear that
an Application for Review that is
rejected, leads to an order from which no
appeal lies. If an order rejecting an
Application for Review were to be
challenged, certainly a writ petition would
be competent from that order alone. In
that challenge, the Court would be
required to see whether the Authority was
right in rejecting the Application for
Review. In a petition of that kind, the
order passed under Section 7-A of the
Act, that has not been reopened by
granting the Review, would not be under
scrutiny of this Court. This would be so
because an application under Section 7-B
of the Act rejecting an Application for
Review would leave the order under
Section 7-A not only intact, but there
would be no merger with the order passed
under Section 7-B, in such a case. It is
only that awaiting decision of this Court
as to legality of the order rejecting an
application under Section 7-B, this Court
may consider restraining consequences of
the order under Section 7-A of the Act by
way of recovery etc, with or without
terms, in aid of the writ petition before it,
to judge the validity of the Section 7-B
order. Again, to emphasize, in that
situation the order under Section 7-A
would not be under challenge. In that
situation alone, a writ petition would not
be confronted with the bar of alternative
remedy under Section 7-I of the Act. In
the event, however, the Review were to
be formally granted, and the order
3 All. Chandra Shekhar Azad Univ. of Agri.& Tech. Kanpur Vs. Regi.Provi.Fund Comm. II Kanpur & Anr. 1477
originally made under Section 7-A laid
open with a fresh order to follow after
hearing parties, there would be clearly a
merger of the earlier order with that
passed under Section 7-B. And, if this
were the nature of the order passed under
Section 7-B, it would be appealable under
Section 7-I, going by the provisions of
Section 7-B(5) of the Act. There is yet
another
class
of
cases,
which
Sri
Kartikeya Saran and Sri Satyendra
Chandra Tripathi, learned counsel for the
respondents
and
the
beneficiary
employees, respectively urge would fall
under Section 7-B(5) of the Act. This is
those class of cases where without
expressly granting the Review, the
Authority
seized
of
the
Review
Application, does not summarily turn it
down, but at the stage of considering the
Review Application, passes an order that
deals with the merits of the assessee's
case. In the submission of the learned
counsel, this kind of an order would fall
under Section 7-B(5) as the order passed
is one under Review, from which an
appeal would lie, treating it to be an
original order under Section 7-A of the
Act.

14. This Court has scrutinized the
impugned order dated 12.04.2018 passed
under Section 7-B of the Act. The tenor
of the said order, which runs into some
ten pages and a little more, makes it
manifest to be one where the Regional
Provident Fund Commissioner has not
simply rejected the Application for
Review. He has, no doubt, said that the
said application is liable to be rejected on
grounds of limitation and for noncompliance with the prescribed form, but
has, thereafter, proceeded to open up the
entire
case
of
parties
vis-a-vis
determination of the petitioners' liability
on merits. He has set out the complete
history
of
proceedings
before
the
Authority and this Court. He has also
referred to the evidence of parties,
including the fact that the establishment
representatives had no objection to
shifting back the date of coverage for the
petitioners
(establishment).
He
has
referred to the stand of the two
representatives
of
the
establishment
recorded on 01.02.2018, that is to say,
M/s. A.K. Srivastava and Yogendra
Singh, who appeared on behalf of the
petitioners before the Authority. It is
recorded that these representatives of the
establishment stated that they have no
objection to the report submitted by the
departmental
representatives
on
11.01.2018. The findings are clearly ones
recorded on the merits of the assessment,
which may be quoted verbatim:

"As per the report of the
Enforcement Officer, the covrage date of
the establishment needed to be shifted
back
i.e.
w.e.f.
01.01.2004.
The
establishment representatives had no
objection on the issue of shifting back
the
date
of
coverage
of
the
establishment. Therefore, the date of
coverage of establishment was shifted
back to 01.01.2004. (This is well
recorded in file)

Due to the shifting of date of
coverage of the establishment, the
inquiry (under section 7A of the Act)
period was also extended i.e. from
01/2004
to
31.05.2017,
to
which
establishment representatives had no
objection.

A copy of Enforcement Officers
report taken on record as PWX-11/1/2018
along with details of quantification was
provided/
handed
over
to
the
establishment
representatives
to
file
1478 INDIAN LAW REPORTS ALLAHABAD SERIES
objections, if any on or before next date
of
hearing,
which
was
fixed
for
01.02.2018.

On
01.02.2018,
Sh.
A.K.
Srivastava
&
Sh.
Yogenda
Singh
appeared on behalf of establishment. The
establishment representatives stated that
they have no objections to the report
submitted by departmental representative
on 11.01.2018(taken on record as PWX11/1/2018).
The
establishment
representatives further stated that they
have cross-verified the same with their
record and confirm the dues. Sh. Sanjay
Bajpai, E.O. appearing on behalf of
department submitted a copy of Ministry
of Labour, Government of India letter
dated
08.01.1989
and
Copy
of
Judgement/ order of Hon'ble High Court
of Himacha Pradesh date 13.03.1997 in
CWP 1930 of 1996, which was taken on
record. Sh. Bajpai stated that the EPF &
MP Act, 1952 is very much applicable on
the establishment. He further stated that
EPF department tried its best to convince
the
university
authorities
regarding
Employees Enrollment Campaign, 2017
but the University authorities did not take
interest. It was further requested by the
departmental representative that in light
of no objection to the report and
acceptance of dues by the establishment
representatives, dues may be assessed and
establishment may be directed to deposit
the same.

It is also observed as under:

a) No Provident Fund or
Pension Benefits to casual/ contract
employees/ daily wagers

Large number of employees
(641 employees) have been engaged by
the establishment since long (since 2004)
on Casual/ Contract/ daily wages basis in
or in connection with the work of the
establishment but these employees have
not been extended social security benefits
in form of Provident Fund or Pension i.e.
the establishment does not have scheme
for providing P.F. or Pension benefits to
these employees. However, the regular
employees of the establishment are
enjoying the social security benefits. The
establishment
should
have
extended
social security benefits to all these
contractual/ daily wagers employees.

b) Applicability of the EPF &
MP Act, 152 (sic 1952)

(i) There is no dispute to the
fact that these employees are engaged by
the establishment in connection with the
work of the establishment and they fall
under the definition of "employees" as per
section 2f of the EPF & MP Act, 1952.

(ii) It would be worthwhile to
reproduce section 16 of the EPF & MP
Act, 1952 (quoted portion omitted)

(iii)
In
this
regard,
the
department contends that Ministry of
Labour, Government of India vide letter
No.
S-35025/15/88-SS-II
Dated
8th
January
1989
clarified
regarding
departmental undertakings and statutory
bodies falling in the categories specified
in Section 16(1)(b) and 16(1)(c) as
under:-

"(iv)
There
may
be
establishments which employ large
number of casual/ contingent staff, who
are not entitled to the benefit of
provident fund or pension. The casual/
contingent staff of such establishment
will continue to be covered under the
Act but their regular employees who
are entitled to the benefit of provident
fund/ pension should be excluded from
the purview of the Act"

In the instant case large number
of
employees
engaged
by
the
establishment but they have not been
3 All. Chandra Shekhar Azad Univ. of Agri.& Tech. Kanpur Vs. Regi.Provi.Fund Comm. II Kanpur & Anr. 1479
extended Provident Fund or Pension
benefits to these employees.

(iv) In similar case of Himachal
Pradesh Nagar Vikas Pradhikaran Vs.
Regional Provident Fund Commissioner
in C.W.P. No. 1930 of 1996, Hon'ble
High Court of Himachal Pradesh, Shimla
in its order dated 13th March 1997
observed w.r.t. section 16 of EPF & MP
Act, 1952 as under:-

"13. It is very significant to note
that the section does not stop with
referring to any establishment belonging
to or under the control of the Central
Government or the State Government.
There is a qualification in the section
expressly mentioning that the employees
thereof are entitled to the benefit of
contributory provident fund or old-age
pension in accordance with any scheme or
rule framed under that Act by such
Government.

In the absence of both the
requirements being fulfilled up neither
clause (b) nor clause (c) can be invoked.
In the present case, admittedly, the
petitioner does not have any scheme or
rule by which the daily wagers employed
by the petitioner are entitled to the benefit
of contributory provident fund or old-age
pension. In such circumstances, the
petitioner cannot claim the benefit of
section 16(1)(b) or (c).

14. The view expressed by the
respondent in his order that the petitioner
is not entitled to get exemption from the
provisions of the Act is, therefore,
correct.

(v)
The
establishment
M/s
Chandra Shekhar Azad University of
Agriculture & Technology, Kanpur did
raise the issue of applicability before
Hon'ble High Court of Judicature at
Allahabad and filed a Writ Petition No.
Writ-C No.24264 of 2010. Hon'ble High
Court vide order dated 03/05/2010
directed as under:-

"Feeling aggrieved by the letter
dated 2.2.2010 issued by the Employees'
Provident Fund Organization asking the
petitioners to furnish certain informations
detailed therein, the present writ petition
has been filed.

Shri P.Padia, learned counsel
for the petitioner submits that the
provisions of Employees Provident Fund
Act are not applicable to the petitionerUniversity.

Shri P.Padia, learned counsel
for the petitioner submits that he will
certainly submit the reply of the said
letter Whether the provisions of the said
Act are applicable or not will amount prejudging of the issue at this stage. The
reply may be filed within a period of
two weeks and the final decision may
be taken after taking into consideration
the reply filed by the petitioner shortly
thereafter.

The writ petition is pre mature
as was rightly pointed out by Shri
D.Singh,
learned
counsel
for
the
respondent.

The
petition
is
dismissed
accordingly."

But as directed by Hon'ble High
no
such
reply
was
filed
by
the
establishment, M/s Chandra Shekhar
Azad University of Agriculture &
Technology, Kanpur.

(vi) During the course of
Inquiry under section 7A of the Act, no
question of applicability of EPF & MP
Act, 1952 on the establishment was
raised. Further during the inquiry no
objection to departments report (taken on
record
as
PWX-11/1/18)
and
quantification of dues was raised.

After
affording
sufficient,
reasonable and ample opportunity, oorder
1480 INDIAN LAW REPORTS ALLAHABAD SERIES
U/s 7A was passed on 08.02.2018 and the
same was duly communicated to the
establishment. The establishment duly
authorized representatives neither had any
objections to the dues assessed nor had
any objections to the shifting back of
coverage date. The issue of applicability
has been appropriately dealt in the 7A
order."

15. The remarks carried in the
concluding portion of the impugned
order, and also somewhere in the
beginning to the effect that the application
has not been submitted in the prescribed
format, or within the statutory period of
limitation, as well as those that say that
the order dated 08.02.2018 passed under
Section
7-A,
has
dealt
with
the
petitioners'
contention
properly,
approving that order would not lead to an
inference that the order dated 12.04.2018
is an order that rejects the Review
Application without reopening the case
on merits. The order dated 12.04.2018
does a complete review of the petitioners'
case on merits, without formally saying
that the Review stands granted, and then
proceeding to record those findings. This,
in the opinion of this Court, would clearly
bring the impugned order into that class
which is envisaged under Section 7-B(5)
of the Act; it is an order passed under
review, to employ the phraselogy of the
statute.
Such
an
order
is
clearly
appealable under sub-Section (5) of
Section 7-B of the Act. The decision of
the Delhi High Court relied upon by Sri
Kartikeya
Saran
in
M/s.
Bharat
Polychem Ltd. (supra) precisely says
that, where it is held in paragraphs 8 and
9 of the report:

"8.
The
counsel
for
the
respondents has contended that the order
under Section 7A was appealable and the
petitioner having not preferred appeal
thereagainst, the same has attained
finality. A perusal of Section 7B and
particularly sub-section (5) thereof also
shows that though no appeal lies against
an order rejecting an application for
review but appeal is permitted against an
order passed under review as if the order
passed under review were the original
order under Section 7A.

9. A perusal of the order dated
16th March, 2007 shows that APFC
literally reviewed the order dated 17th
May, 2006 and reached a conclusion that
there was no error as pointed out in the
order dated 17th May, 2006. An appeal
against such an order would lie under
Section 7B(5) (supra). This writ petition
is not maintainable for said reason."

(Emphasis by Court)

16. In this view of the matter, this
Court finds and holds that the impugned
order dated 12.04.2018 is appealable
under Section 7-I of the Act. The
impugned order dated 08.02.2018 is
concededly so appealable.

17. In this view of the matter,
against both orders, the petitioners have
an equally efficacious alternative remedy
by way of an appeal before the Tribunal
under Section 7-I of the Act.

18.

This
writ
petition
is,
accordingly, dismissed on the ground of
availability of an alternative remedy.
The sum of money deposited by the
petitioners and invested in accordance
with the interim order dated 24.01.2019,
shall remain invested for a period of two
months next. In case during the said
period, an appeal is filed by the petitioners
3 All. Amit Kumar Singh Vs. Union of India & Ors.
1481
to the Tribunal, the sum of money deposited
as aforesaid, shall abide by further orders to
be made by the Tribunal. In case no appeal is
filed within said period of time, it shall be
open to the respondent authorities to proceed
in accordance with law. There shall be no
order as to costs.
----------

(2019)9ILR A1481

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.09.2019

BEFORE
THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

Service Bench No. 15743 of 2018

Amit Kumar Singh ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Neeraj Kumar Rai, Umesh Pratap Singh

Counsel for the Respondent:
A.S.G.,
Ajay
Kumar
Pandey,
P.K.
Srivastava

A.
Service
law-
Compassionate
Appointment- BSNL- Scheme for grant
of-is binding-father worked as phone
mechanic-died-claim for compassionate
appointment
rejected-under
clause
10(a) and 16(c) of the scheme, the
competent
authority
was
under
obligation to consider the financial
condition of the family-compassionate
appointment cannot be claimed as a
matter of rigt. Tribunal rightly dismissed
claim petition in light of proven financial
status of the family of the deceased.

B. While considering the application for
compassionate appointment in the light
of policies framed therein and judgments
on this issue, the benefits received by
the family on account of family welfare
measures including family pension and
death gratuity as well as income from
other resources are required to be
considered. (Para 12, 13,14)

Petition dismissed (E-6)

List of cases cited:

1. State of Himachal Pradesh and Anr.Vs.
Shashi Kumar (2019) 3 SCC 653: (2019) 1
SCC (L&S) 542

2. Govind Prakash Verma Vs. LIC,(2005) 10
SCC 289:2005 SCC (L&S) 590

3. Umesh Kumar Nagpal Vs. State of Haryana,
(1994) 4 SCC (L&S) 930

4. SBI Vs. Kunti Tiwarh, (2004) 7 SCC 271 :
2004 SCC (L&S) 943

5. Punjab National Bank Vs. Ashwini Kumar Taneja,
(2004) 7 SCC 265: 2004 SCC (L&S) 938

6. SBI Vs. Somvir Singh, (2007) 4 SCC 778 :
(2007) 2 SCC (L&S) 92

7. Mumtaz Yunus Mulani Vs. State of Mah.,(2008)
11 SCC 384 : (2008) 2 SCC (L&S) 1077

8. Union of India Vs. Shashank Goswami,
(2012) 11 SCC 307: (2013) 1 SCC (L&S) 51

9. SBI Vs. Surya Narain Tripathi, (2014) 15
SCC 739 : (2015) 3 SCC (L&S) 689

10. Canara Bank Vs. M. Mahesh Kumar,
(2015) 7 SCC 412 : (2015) 2 SCC (L&S) 539

11. M. Mahesh Kumar Vs. Canara Bank, 2003
SCC Online Ker 657 : (2003) 98 FLR 1030

12. SBI Vs. Jaspal Kaur, (2007) 9 SCC 571 :
(2007) 2 SCC (L&S) 578

(Delivered by Hon'ble Saurabh Lavania, J.)

1- Heard learned Counsel for the
petitioner and learned Counsel for the
respondents.