Trayi vs Assistant Provident Fund ...
2022 Latest Caselaw 6853 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

         THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

                                       &

               THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

    TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944

                            WA NO. 722 OF 2022

AGAINST THE JUDGMENT DATED 23.03.2022 IN WP(C) 8476/2022 OF HIGH

                                COURT OF KERALA

APPELLANT/PETITIONER:

               M/S.TRAYI
               11/32 - A, EAST DESAM, DESAM P.O, ALUVA, KOCHI -
               683101. REPRESENTED BY ITS GENERAL MANAGER (HR AND
               ADMN), MR. ANIL KRISHNA PILLAI.


               BY ADVS.
               SRI.P.BENNY THOMAS
               SRI.D.PREM KAMATH


RESPONDENTS/RESPONDENTS:

    1          ASSISTANT PROVIDENT FUND COMMISSIONER
               EMPLOYEES PROVIDENT FUND ORGANIZATION, SUB REGIONAL
               OFFICE, 36/685 A, BHAVISHYANIDHI BHAVAN, KALOOR, KOCHI
               - 682017.


    2          CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR
               COURT,
               38/377 A-2, KARITHALA LANE, KARSHAK ROAD, COCHIN -
               682016, REPRESENTED BY ITS PRESIDING OFFICER.




               BY ADV.SRI.THOMAS MATHEW NELLIMOOTTIL -S.C


        THIS    WRIT   APPEAL    HAVING    COME   UP   FOR   ADMISSION   ON

14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                      :2:
W.A.No.722 of 2022




                              JUDGMENT

A.K.Jayasankaran Nambiar, J.

The petitioner in W.P(C).No.8476 of 2022 is the appellant herein,

aggrieved by the judgment dated 23.03.2022 of the learned Single

Judge.

2. The brief facts necessary for disposal of the Writ Appeal are as

follows:

The appellant is a company registered under the Companies Act

and covered under the Employees' Provident Fund and Miscellaneous

Provisions Act, 1952 (hereinafter referred to as 'the EPF Act' for short).

Against an assessment of the dues on which the necessary contribution

under the EPF Act has to be paid, the appellant approached the

Appellate Tribunal through an appeal. The said appeal was allowed by

setting aside the order of the original authority and remanding the

matter back to him after directing him to exclude the HRA component

from the amounts paid to the employee, and to examine whether the

other allowances paid to the employees would fall within the scope of

W.A.No.722 of 2022

dues on which contributions are to be paid by the appellant.

3. Apparently, on perusing the order of the Tribunal, the

appellant felt that the order of the Tribunal that purported to be an

open remand to the Assistant Provident Fund Commissioner for a fresh

determination of the allowances that could be included in the

computation of dues on which the contribution had to be paid,

contained some findings adverse to the appellant on the issue of

inclusion of allowances for the purposes of contribution. It was with a

view to get a clarification in that regard that the appellant approached

this Court through the Writ Petition aforementioned.

4. The learned Single Judge, on considering the matter, found

that there was no justification to interfere with the order of the Tribunal

since it was in the nature of an open remand. The learned Judge also

felt that the Writ Petition was a total abuse of the process of the Court,

and hence, while dismissing the Writ Petition he also directed costs of

Rs.20,000/- to be paid by the appellant to the Legal Service Authority of

Kerala.

5. In the Appeal before us, we have heard Sri.Benny P. Thomas,

W.A.No.722 of 2022

the learned counsel for the appellant and Sri.Thomas Mathew

Nellimoottil, the learned Standing counsel for the respondents.

6. On a consideration of the rival submissions, we find that the

only relief sought for by the appellant in the Writ Petition was a

clarification that the remand by the Appellate Tribunal to the Assistant

Provident Fund Commissioner was an open remand, save for the the

issue of inclusion of HRA, which had to be excluded from the

computation of dues in terms of the express provisions of the EPF Act.

On a perusal of the order of the tribunal impugned in the writ petition,

we find that the remand was in fact an open remand and the other

observations of the tribunal cannot be seen as findings against the

appellant. We therefore set aside the impugned judgment of the learned

Single Judge and declare that Ext.P4 order of the Appellate Tribunal

shall be seen as an open remand to the Assistant Provident Fund

Commissioner to consider whether the various allowances other than

HRA paid by the appellant to its employee would merit inclusion in the

computation of dues for the purposes of the contribution required under

the EPF Act. We make it clear that it would be open to the appellant to

raise all contentions on merit before the Assistant Provident Fund

Commissioner who shall consider the issue on merits untrammeled by

W.A.No.722 of 2022

the observations in Ext.P4 order of the Tribunal.

The Writ Appeal is allowed as above.

Sd/-

A.K.JAYASANKARAN NAMBIAR JUDGE

Sd/-

MOHAMMED NIAS C.P.

JUDGE

mns