Bhaiyalal Shukla vs Union of India (UOI) and Others

R.V. Raveendran, C.J.

An order dated 18-11-2003 was passed against the appellant/Employer u/s 7A of the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as ''Act'' for short) directing him to deposit certain amounts due in respect of the period from April, 1993 to September, 1999. Feeling aggrieved, the appellant filed a petition for review of the said order u/s 7B of the Act. The said review petition was rejected. When the review petition was rejected, the appellant challenged the original order dated 18-11-2003 in W.P. No. 2457/2004.

The learned Single Judge has dismissed the said petition by order dated 2-7-2004 on the ground that an efficacious alternative remedy by way of appeal is available u/s 7I of the Act. The said rejection is challenged in this appeal.

Learned Counsel for the appellant relied on Section 7B(5) of the Act to contend that the remedy by way of an appeal is not available to him against the original order, once a review petition filed against the original order is rejected and that the writ petition ought not to have been rejected on the ground of availability of an alternative remedy.

We may first refer to the relevant provisions of the Act, before considering the appellant''s contentions. Section 7A provides for determination of money due from the employer after giving a reasonable opportunity to the employer to represent his case. Section 7B provides for review of the order passed u/s 7A, either suo motu or on the application of any aggrieved person. Section 7I provides for an appeal against the order passed u/s 7A or Section 7B [except an order rejecting an application for review referred to an Sub-section (5) of Section 7B. Sub-section (5) of Section 7B reads as under :--

"(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 u/s 7A."

The effect of the said provisions can be summarized as follows :--

(i) An appeal lies u/s 7I against an order u/s 7A, determining the money due from an employee.

(ii) Where an application for review is rejected, no appeal is maintainable against the order rejecting the application for review.

(iii) Where an application for review is allowed, then an appeal is maintainable against the order passed under review, as if it is the original order passed u/s 7A.

(iv) Where the application for review u/s 7B is rejected, the original order passed u/s 7A stands undisturbed and an appeal will lie u/s 7I of the Act against such original order.

The logic behind Section 7B(5) is clear. If an application for review is allowed and the original order is reviewed, the original order would no longer exist and the review order would replace the original order. Therefore, the appeal is to be filed against the order reviewing the original order, as if it is the original order. On the other hand, if the authority refuses to review the original order, the aggrieved person can challenge by way of appeal, the original order itself and, therefore, there is no need to provide for an appeal against the order rejecting the application for review. The bar against appeal contained in Section 7B(5), is only in respect to the order rejecting the application for review and not in respect of the original order. The remedy of appeal available u/s 7I against the original order is not taken away by mere filing of an application for review. The general principle regarding review is when an appeal is already filed against the original order, a review petition can not be filed against the original order. But an appeal can be filed against the original order, either during the pendency of the review application or after the rejection of the review application. If the appeal is filed during the pendency of the review application, the review application will have to be rejected. Section 7B(5) is in pari materia with Order 47 Rule 7 of the Code of Civil Procedure. The decision of the Supreme Court in Shanker Motiram Nale VS . Shilolsing Gannusing Rajput, (1994) 2 SCC 753 and the decision of the Allahabad High Court in Sukhbasi Lal Vs. Durjan Singh, clearly lend support to our view that when an application for review is rejected, an appeal would lie against the ''basic'' or ''original'' order.

As the appellant has an alternative remedy of an appeal against the order dated 18-11-2003, u/s 7I of the Act, the learned Single Judge has rightly refused to entertain the writ petition. This appeal is, therefore, dismissed.