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HIGH COURT OF MADHYA PRADESH,
BENCH AT
GWALIOR.
REVIEW PETITION NO. 117 OF 2011.
Surya Roshni Limited.
vs.
Employees Provident Fund and
another.
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DB : HON'BLE SHRI S.K.GANGELE &
HON'BLE SHRI BRIJ KISHORE DUBE , JJ.
Shri
Rajendra Tiwari, Senior Advocate, with Shri Prashant Sharma,
Advocate,
for petitioner.
Shri
S.L. Gupta, Advocate, and Shri R.K. Goyal, Advocate, for
respondents.
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Whether approved for Reporting :
.......................................................................................................
O R D E R.
(Passed on this ....... day of November, 2011)
Per S.K. Gangele, J. -
1. This review petition has been
filed for review of the
order dated 24.03.2011 passed by
this Court in Writ
Petition No. 1891/2011.
2. A notice was issued by the
Assistant Provident Fund
Commissioner to the petitioner
under Section 7-A of the
Employees' Provident Fund and
miscellaneous Provisions
Act, 1952, hereinafter referred
to as the 'Act of 1952'.The
Assistant Provident Fund
Commissioner noticed the fact
that the petitioner – company
had been paying less amount
towards contribution of
Provident Fund and it had
bifurcated the salary of
employees in order to avoid the
liability of payment of
provident fund contribution. The
notice was issued on the basis
of a report submitted by the
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Enforcement Officer. The main
contention was that the
petitioner – company had been
paying special allowance,
dearness allowance, conveyance
allowance and other
allowances, however, those
allowances were part and
parcel of basic wage.
3. The petitioner-company
contested the case before the
Authority. The Authority vide
final order assessed the
liability of the petitioner.
Against the aforesaid order,
petitioner preferred an appeal.
That appeal has been
dismissed. Thereafter, a writ
petition was filed before this
Court. This Court has up held
the orders passed by the
Authority as well as the
Assessing Authority with certain
variations.
4. Learned Senior Counsel
appearing on behalf of the
petitioner has contended this
Court committed an error of
law in holding that conveyance
allowance i.e. transport
allowance and other allowances
except the lunch allowance,
are part and parcel of basic
wages. The learned Senior
Counsel further submitted that
the allowance have not been
paid universally to all the
employees and no reasons have
been assigned by this Court to
hold that these allowances
are part and parcel of the basic
wage, hence, the order is
liable to be reviewed. In
support of his contentions, learned
Counsel relied on the following
judgments :-
(1) Parsion Devi and others vs. Sumitri Devi
and others, (1997) 8 SCC 715;
(2) M/s Thungabhadra Industries Ltd. v. The
Government of Andhra Pradesh, AIR 1964
SC 1372;
(3) Meera Bhanja (Smt.) vs. Nirmala Kumari
Choudhury (Smt.), (1995) 1 SCC 170; and
(4) Dr. Janak Rajjai Vs. H.D. Deve Gowda,
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(1997) 10 SCC 462.
5. In the final order passed by
the Authority it has clearly
been observed that the special allowance
has been given to
all the employees. The
conveyance allowance has also been
given to all the employees. The
management put forth the
argument before the Authority
that the conveyance
allowance was paid to the
employees to defray the expenses
incurred by the employees coming
to the establishment
from home and return. Washing
allowance was also paid to
all the employees. Canteen
allowance was also paid to all
the employees. The petitioner
filed its written submissions
and the reply before the Assistant
Provident Fund
Commissioner. In the aforesaid
documents the petitioner
did not plead the fact that the
aforesaid allowances were
not paid to all the employe4es.
An appeal was filed against
the order of the Assistant
Commissioner, Provident Fund. In
the appeal also it was not
pleaded. Similarly, thereafter a
writ petition was filed. In the
writ petition also this fact was
not controverted that these
allowances were not paid to all
the employees.
6. Along with the review
petition, the petitioner has filed
certain documents and contended
that the allowances were
not paid to all the employees.
However, from perusal of the
documents, in our opinion, the
contention raised by the
petitioner could not be
accepted. Apart from this, these
points have not been raised
before the original Authorities.
It is also a fact that this
Court has considered the judgment
of Hon'ble the Supreme Court and
after considering the
judgments in regard to liability
of payment of provident
fund of employees this Court has
passed the order.
7. Basic principle of review is
that there must be an error
apparent on the face of record.
The review is not a
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substitute of regular appeal. It
is also a fact when the
findings have been affirmed by
the Appellate Authority ,
then it is not necessary for
writ Court to give detailed
reasons or analyze the findings
of facts recorded by the
lower Tribunal or quasi judicial
authority.
8. Looking to the aforesaid facts of the case, in our
opinion, there is no error
apparent on the face of record.
Hence, we do not find any merit
in this review petition. It is
hereby dismissed.
(S.K.Gangele) (Brij Kishore Dube)
Judge Judge
(___.11.2011). (___.11.2011).
sst
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