M/S.Mathew Perumali vs Employees Provident Fund ...
2022 Latest Caselaw 3338 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MR. JUSTICE AMIT RAWAL
         TUESDAY, THE 22ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944
                         WP(C) NO. 23278 OF 2014
PETITIONER:

              M/S.MATHEW PERUMALI & Co.
              PIGEE AGENCIES, VELI ROAD, COCHIN-1,
              REPRESENTED BY ITS PROPRIETOR
              MR. MATHEW PERUMALI, AGED 83 YEARS.

              BY ADVS.
              SRI.G.HARIHARAN
              SRI.PRAVEEN HARIHARAN


RESPONDENTS:

     1        EMPLOYEES PROVIDENT FUND ORGANIZATION
              REPRESENTED BY ITS ASSISTANT PROVIDENT FUND COMMISSIONER
              AND RECOVERY OFFICER, SUB REGIONAL OFFICE,
              KALOOR, KOCHI-682 017.

     2        THE FERTILISERS AND CHEMICALS TRAVANCORE LTD.
              UDYOGAMANDAL P.O., KOCHI,
              REPRESENTED BY MANAGER (FIXING OPERATIONS).

              BY ADVS.
              DR.S.GOPAKUMARAN NAIR (SR.)
              SRI.P.BENNY THOMAS
              SRI.P.BENNY THOMAS
              SRI.M.GOPIKRISHNAN NAMBIAR
              SRI.P.GOPINATH
              SRI.K.JOHN MATHAI
              SRI.JOSON MANAVALAN
              SRI.KURYAN THOMAS




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 23278 OF 2014
                                 2

                            JUDGMENT

This is a classic case of an act of circumvention at the behest

of the petitioner to overcome the order dated 21.03.2014 of this

Court Ext.R1(d) in O.P.No.7994/2001, whereby in a proceedings

under Section 14(B) of the Employees' Provident Funds and

Miscellaneous Provisions Act, 1952, liberty was granted to pay off

the dues in installments.

2. The facts in brief are that petitioner was engaged as a

contractor for undertaking various kinds of jobs by supplying the

workers and as per the assertions of the workers, though

contributed to the EPF fund, but not deposited with the EPF

authorities. On the basis of the complaint of the workers, after the

enquiry conducted by Enforcement Officer, proceedings under

Section 7A was initiated against the petitioner and its allied firms

as well as against respondent No.2 ie., Fertilisers & Chemicals

Travancore Limited. Vide order dated 25.03.2022 (Ext.P1), liability

was assessed on both the petitioner and the respondent No.2. The

aforementioned order was assailed only by the petitioner before WP(C) NO. 23278 OF 2014

the Tribunal, which was also dismissed vide order dated

13.05.2005 (Ext.P2). Even if the dues determined under Section

7A are paid, the consequential effect of determination of the

damages and payment of interest under Section 7Q is sine qua

non. Proceedings under Section 14(B) commenced against the

petitioner. Petitioner approached this Court vide O.P.No.7994/2001

and this Court vide order dated 21.03.2014 Ext.R1(d) disposed of

the writ petition by granting liberty to the petitioner to pay off the

amount in 7 installments. As a consequence of that order,

respondent No.1 EPF organization issued a notice dated

07.06.2014 (Ext.P6) giving the details of the damages of the

period referred to therein demanding a total amount of

Rs.6,36,955/-. Petitioner submitted a representation Ext.P8 to the

2nd respondent requesting them to pay the liability of the damages

as determined and reflected in Ext.P6 from the outstanding dues of

Rs.16 lakhs and odd amount or in the alternative return the

aforementioned amount. As a fall out of that in the year 2014, has

approached this Court with the following prayers:

"(I) Issue a writ of mandamus or any other appropriate writ WP(C) NO. 23278 OF 2014

or order commanding the 1st respondent to realize the amount demanded vide Exhibit P6 demand notice from the 1 st respondent in view of the provisions of para 30 of the EPF scheme.

(ii) Issue a writ of mandamus or any other appropriate writ or order commanding the 2nd respondent to consider and take decision on Exhibit.P8 claim made by the petitioner."

3. Looking at the prayer No.1, the observation of this

Court in the beginning of the order reveals that it is an act of

circumvention as the aforementioned prayer cannot be entertained

owing to the order dated 21.03.2014 Ext.R1(d). Learned counsel

for the petitioner at this stage submits that he does not want to

press the aforementioned prayer and confines only to prayer No.2.

4. Even the prayer No.2 cannot be looked into from the

simple and plain reading of the contents of the request Ext.P8,

which is extracted hereinbelow:

"with reference to the above I am issued with a notice referred as No 2 above from the Recovery Officer, Employees Povident Fund Organization, Kallor whereby I am called upon to pay a sum of Rs.6,36,955/-towards contribution on account of EPF for various periods from 1999 onwards on WP(C) NO. 23278 OF 2014

account of contract issued by Ms. Fertilizers & Chemicals Tavancore Ltd in this connection in an appeal preferred by the petitioner before the EPF Appellate Tribunal at New Delhi as ATA No 512(7)/2002 it was observed that M/s. Fertilizers & Chemicals, Travancore Ltd, being the principal employer is also able to pay the contribution demanded against the petitioner as provided in paragraph 30 of the EPF scheme and also under Section 2(f) of the Employees Provident Fund Act. The said order has not been challenged by M/s. Fertilizers & Chemicals, Travancore Ltd, and the said order has become final. In this context I further wishe to submit that a sum of Rs.16,21,999.98/-has been retained by the Principal Employer M/s. Fertilizers & Chemicals Travancore Ltd, towards the amount payable to me on various contracts and security deposit, the details of which are appended along with this communication. Hence it is requested and prayed that the amount demanded as per notice referred as No 2 above may kindly be paid by M/s Fertilizers & Chemicals Travancore Ltd, in their capacity as the Principal employers following the provisions prescribed in para 30 of the EPF Scheme and also folowing the directions made in ATA No.512(7)/2002. I am an old person aged more than 84 years and I am not in a position to raise any amount. Hence your goodselves may be pleased to pay the amount demanded in the notice referred as No 1 above.

4. The tenor and mode of Ext.P8 reveals that the

petitioner had attempted to overcome the liability to pay the

damages fastened upon him by the competent authority and WP(C) NO. 23278 OF 2014

endorsed by this Court vide order dated 21.03.2014 Ext.R1(d),

upheld in the Writ Appeal No.1106/2014 dismissed on 29.8.2014

Ext.R2(j). Be that as it may. Despite knowing the fact that the

liability to pay damages under Section 14(B), an attempt has again

been made by the petitioner to seek indulgence of this Court under

Article 226 of the Constitution of India, which in my view, is a

gross abuse of the process of Court. Petitioner had an independent

remedy for recovering an outstanding amount, but not through

present writ petition. Once this Court had already granted a

concession of payment of damages determined under Section

14(B) by installments, the petitioner cannot circumvent the order

in the manner and mode by making a request vide Ext.P8 to the

2nd respondent. Such a contumacious act on behalf of the

petitioner, even if old aged, cannot be permitted to be entertained

while exercising the power under Article 226 of the Constitution of

India.

5. It is highly intriguing despite the fact that there was no

interdiction of the order dated 7.6.2014 (Ext.P6), EPF organization

did not take any effective and positive steps to recover the amount WP(C) NO. 23278 OF 2014

of damages and thus in my view, were remiss in not realising the

statutory dues in accordance with law.

6. As an upshot of findings, I am of the view that the

alleged cause of action does not warrant interference for exercising

the power of judicial review under Article 226 of the Constitution of

India.

This writ petition is accordingly dismissed.

Sd/-

AMIT RAWAL JUDGE nak WP(C) NO. 23278 OF 2014

APPENDIX OF WP(C) 23278/2014

PETITIONER EXHIBITS

EXHIBIT P1- TRUE COPY OF ORDER PASSED BY THE 1ST RESPONDENT DATED 25-03-2002.

EXHIBIT P2- TRUE COPY OF THE ORDER DATED 13-05-2005 MADE IN ATA NO. 512(7)/2002 OF THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, NEW DELHI.

EXHIBIT P3- TRUE COPY OF THE NOTICE DATED 14-07-2006 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P4- TRUE COPY OF THE COMMUNICATION DATED 08-

09-2006 SENT BY THE PETITIONER ADDRESSED TO THE 1ST RESPONDENT.

EXHIBIT P5- TRUE COPY OF THE COMMUNICATION DATED 04-

01-2007 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P6- TRUE COPY OF THE NOTICE DATED 07-06-2014 SENT BY THE 1ST RESPONDENT TO THE PETITIONER.

EXHIBIT P7- TRUE COPY OF THE COMMUNICATION DATED 09-

08-2014 SENT BY THE PETITIONER TO THE 1ST RESPONDENT.

EXHIBIT P8- TRUE COPY OF THE COMMUNICATION DATED 10-

08-2014 SENT BY THE PETITIONER TO THE 2ND RESPONDENT.

EXT-R1(A) TRUE COPY OF THE JUDGMENT DATED 28/07/2009 IN WP(C) 32520/2006 OF THIS HON'BLE COURT.

EXT-R1(B) TRUE COPY OF THE ORDER DATED 26/04/2002 IN CMP NO.20013/2002 IN OP 11513/2002. EXT-R1(C) TRUE COPY OF THE ORDER DATED 05/06/2002 WP(C) NO. 23278 OF 2014

IN CMP NO.7994/2001.

EXT-R1(D) TRUE COPY OF THE JUDGMENT DATED 21/03/2014 IN OP NO.7994/2001.

EXT-R1(F) TRUE COPY OF THE LETTER DATED 16/08/2003 OF THE 2ND RESPONDENT.

EXT-R2(A) TRUE COPY OF THE JUDGMENT DATED 24.07.2001 IN OP NO.20554/2001.

EXT-R2(B) TRUE COPY OF THE LETTER DATED 27.06.2001 RECEIVED FROM THE 1ST RESPONDENT.

EXT-R2(C) TRUE COPY OF THE JUDGMENT DATED 20.03.2002 IN OP NO.7225/2002.

EXT-R2(D) TRUE COPY OF THE JUDGMENT DATED 08.04.2002 IN OP NO.9447/2002.

EXT-R2(E) TRUE COPY OF THE LETTER DATED 16.04.2002 ISSUED BY 2ND RESPONDENT TO THE PETITIONER.

EXT-R2(F) TRUE COPY OF THE ORDER DATED 05.06.2002 IN CMP NO.21970/2002 IN OPP NO.12990 OF 2002 OF THIS Hon'ble Court.

EXT-R2(G) TRUE COPY OF THE JUDGMENT DATED 14.07.2006 IN OP NO.12990/2002 OF THIS HON'BLE COURT.

EXT-R2(H) TRUE COPY OF THE LETTER DATED 13.11.2006 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.

EXT-R2(I) TRUE COPY OF THE LETTER DATED 12.12.2006 ADDRESSED TO THE 1ST RESPONDENT TO THE 2ND RESPONDENT.

EXT-R2(J) TRUE COPY OF THE JUDGMENT DATED 29.08.2014 IN W.A.NO.1106/2014 OF THIS HON'BLE COURT.

WP(C) NO. 23278 OF 2014

EXT-R2(K) TRUE COPY OF THE ORDER DATED 06.03.2015 PASSED BY THE 1ST RESPONDENT.

EXT-R2(L) TRUE COPY OF THE LETTER DATED 21.04.2015, FORWARDING CHEQUE No.561230 DATED 21.04.2015 FOR Rs.2,37,154/- ISSUED BY THE 2ND RESPONDENT.