The Manager vs The Assistant Provident Fund ...
2021 Latest Caselaw 6587 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MR. JUSTICE A.M.BADAR

  WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021 / 5TH PHALGUNA, 1942

                        WP(C).No.2483 OF 2021(I)


PETITIONER/APPELLANT:

             THE MANAGER,
             MPM ENGLISH MEDIUM SCHOOL, THAMMANAM, KOCHI-682 032,
             REPRESENTED BY ITS MANAGER.

             BY ADV. SRI.T.K.VIPINDAS

RESPONDENT/RESPONDENT:

             THE ASSISTANT PROVIDENT FUND COMMISSIONER,
             EMPLOYEES PROVIDENT FUND ORGANIZATION,
             REGIONAL OFFICE, BHAVISHYA NIDHI BHAVAN, KALOOR,
             KOCHI - 682 017.

             BY ADV. SRI.S.PRASANTH, SC.


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.2483/2021               2


                             JUDGMENT

Dated this the 24th day of February 2021

Heard the learned counsel for the petitioner. He submits

that the petitioner has suffered an order under Section 7A of the

Employees' Provident Funds & Miscellaneous Provisions Act, 1952

(EPF Act, for short) and the said order is impugned by the

petitioner by filing statutory appeal. According to the learned

counsel for the petitioner, the application for waiver of pre deposit

is not properly considered by the learned Appellate Authority and

therefore, this writ petition is filed. It is submitted that the

petitioner is running a school and the amount so directed by the

Appellate Authority is a huge amount which is not possible for the

petitioner to deposit.

2. I have considered the submissions so advanced and

perused the order at Ext.P1 passed on an enquiry under

Section 7A of the EPF Act so also the affidavit filed for waiver of

pre deposit,Ext.P5 and the impugned order at Ext.P6. Section 7-O

of the EPF Act provides that no appeal filed by the employer shall

be entertained and considered by the Tribunal unless the

appellant deposits 75% of the amount due as determined by the

officer referred to in Section 7A. However, the Tribunal can, for

the reasons recorded in writing, waive or reduce the amount to be

deposited under the said section.

3. In the case in hand, the following are the reasons stated

by the petitioner for waiver of amount of pre deposit, as found in

the affidavit, Ext.P5.

"3. I have filed the above appeal has been filed against the impugned order. The impugned order is directed to appellant to remit due amount of Rs.52,83,249/- within the ten days. As per the additional documents produced along with the Appeal, the appellant will not the dues to the extent stated in the impugned order. Section 7-O of Employees' Provident Funds and Miscellaneous Provisions Act, 1952 stipulates that on filing appeal shall be entertain by the Tribunal, he has to deposit 75% of the amount of due. The said amount if paid by the appellant, will be excess of the amount actually payable by the appellant. Moreover, the appellant is in a huge financial crisis and is not in a position to remit any amounts at present. Unless the petition is allowed, I will be put to irreparable injury and hardships".

4. In the light of the request for waiver of pre deposit for

entertaining statutory appeal, learned Appellate Authority has

observed that there is no proof produced before the Authority

exercising powers under Section 7A of the EPF Act in respect of

the non enrolled employees as trainees. However, the amount of

pre deposit is reduced to 30% of the amount determined in

enquiry under Section 7A of the EPF Act. A perusal of the

affidavit filed for waiver of pre deposit makes it clear that what

was sought to be produced in support of the claim is additional

documents and no such evidence was before the Authority under

Section 7A of the EPF Act.

5. In this view of the matter, no error of law can be found in

the impugned order at Ext.P6 which is a discretionary order

passed for entertaining the appeal.

In the result, this writ petition fails and the same is

dismissed. However, the petitioner is permitted to deposit the

amount under the impugned order at Ext.P5 in two equated

successive instalments commencing from 01.03.2021.

Sd/-

A.M.BADAR

JUDGE

smp

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE ORDER OF THE RESPONDENT DATED 4.7.2019.

EXHIBIT P2 THE LIST OF TEACHER SUBMITTED BEFORE DEPUTY DIRECTOR OF EDUCATION, KAKKANAD.

EXHIBIT P3 THE PRESENT OUT OF DATA COLLECTION IN RESPECT OF MPM ENGLISH MEDIUM HIGHER SECONDARY SCHOOL, THAMMANAM.

EXHIBIT P4 TRUE COPY OF THE APPEAL MEMORANDUM IN APPEAL NO. 33/2020 WITHOUT EXHIBITS.

EXHIBIT P5 THE TRUE COPY OF THE WAIVER PETITION FILED BY THE PETITIONER BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT.

EXHIBIT P6 THE TRUE COPY OF THE ORDER DATED 30.12.2020 IN APPEAL NO.33/2020 ON THE FILE OF CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT ERNAKULAM. RESPONDENTS' EXHIBITS: NIL.

True Copy

P.S to Judge

smp