M/S Arya Bhangy Motors vs Employees Provident Fund ...
2021 Latest Caselaw 14100 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR. JUSTICE A.M.BADAR
     WEDNESDAY, THE 7TH DAY OF JULY 2021 / 16TH ASHADHA, 1943
                       WP(C) NO. 28548 OF 2020
PETITIONER:

          M/S. ARYA BHANGY MOTORS
          AMC XVII/506, PULINCHODE,
          N.H.BYE PASS ROAD,
          ALUVA - 683 101
          REPRESENTED BY ITS MANAGING PARTNER JIBI THOMAS.

          BY ADVS.
          SRI. PAULSON C.VARGHESE
          SMT.C.V.VEENA


RESPONDENTS:

    1     EMPLOYEES' PROVIDENT FUND APPELLATE AUTHORITY
          CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR
          COURT, ERNAKULAM.
    2     REGIONAL PROVIDENT FUND COMMISSIONER - II
          EMPLOYEES' PROVIDENT FUND ORGANISATION,
          REGIONAL OFFICE,
          KALOOR, KOCHI - 682 017.

          BY ADV SRI. S. PRASANTH
          ASGI. SRI. P. VIJAYA KUMAR,
          SRI. RON BASTIAN, GP,
          SRI. SAJEEV KUMAR.K.GOPAL, SC, EPFO



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C). No.28548 OF 2020

                                   2




                              JUDGMENT

Heard the learned counsel appearing for the petitioner.

2. The learned counsel for the petitioner submits as

against the assessment order at Ext.P1 passed under Section

7A of Employees' Provident Funds and Miscellaneous

Provisions Act, 1952 (for short 'the Act'). The petitioner has

preferred an appeal at Ext.P3 before the 1 st respondent and

the 1st respondent has admitted it for final hearing. However,

according to the learned counsel for the petitioner, the order

of admission of the appeal is subject to the condition that the

petitioner should remit an amount of 40% of the assessed

due. This according to the learned counsel for the petitioner

is totally unjustifiable and unreasonable. It is alleged that the

order directing payment of 40% of the total assessment of

Rs.57.46 Lakhs is totally illegal as in the pandemic it is

difficult for the petitioner to remit huge amount of Rs.22.9

Lakhs for complying the order of the pre-deposit.

3. I have considered the submissions so advanced WP(C). No.28548 OF 2020

and also perused the material placed before me. The

establishment of the petitioner came to be visited on

23.03.2016 by the authorities of the provident fund

organisation and show cause notice was given. Ultimately

necessary enquiry was conducted and the authority of the

provident fund organisation had assessed the dues to the

tune of Rs.57,46,768/-. These dues includes the dues for

evasion of contribution of employees, dues on account of non

enrollment of employees under this beneficial legislation. In

the appeal challenging the order under Section 7A of the Act,

the appellate authority had directed the petitioner to remit

40% of the assessed dues for entertaining the appeal.

4. Section 7(O) of Employees' Provident Funds and

Miscellaneous Provisions Act, 1952 reads thus:-

"7-O. Deposit of amount due, on filing appeal. - No appeal by the employer shall be entertained by a Tribunal unless he has deposited with it seventy-five per cent of the amount due from him as determined by an officer referred to in section 7A:

Provided that the Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section."

WP(C). No.28548 OF 2020

5. It is thus clear that as per the scheme of the Act,

the tribunal can entertain the appeal only if the appellant

deposit an amount of 75% of the assessed due. The

appellate tribunal is given discretion to reduce that amount.

Exercising that discretion, the appellate tribunal has already

reduced the amount of pre-deposit to 40%. No case for

interference as such is made out as the learned labour

tribunal has already reduced the pre-deposit from 75% to

40%.

In the result, the petition is dismissed.

Sd/-

A.M.BADAR JUDGE

SPR WP(C). No.28548 OF 2020

APPENDIX OF WP(C) 28548/2020 PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF ORDER UNDER SECTION 7A OF EMPLOYEES' PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952. EXHIBIT P2 TRUE COPIES OF THE STATEMENTS OF SALARY PAID TO 117 EMPLOYEES ENLISTED IN EXHIBIT P1 ORDER, FOR THE MONTH OF MARCH 2016.

EXHIBIT P3 TRUE COPY OF THE APPEAL MEMORANDUM DATED 30/09/2020.

EXHIBIT P4 TRUE COPY OF THE ORDER DATED 03/12/2020 PASSED BY THE 1ST RESPONDENT APPELLATE AUTHORITY.

     RESPONDENT'S/S EXHIBITS:     NIL.