Emess Industries vs The Assistant Provident Fund ...
2023 Latest Caselaw 404 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
    WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
                         WP(C) NO. 9083 OF 2012
PETITIONER:

          EMESS INDUSTRIES
          M.S.COTTAGE, MANJAMALA P.O.,
          KALLOOR,THIRUVANANTHAPURAM, REPRESENTED BY ITS
          MANAGINGPARTNER M.SAIFUDEEN.
          BY ADV SRI.P.RAMAKRISHNAN


RESPONDENTS:

    1     *[THE ASSISTANT PROVIDENT FUND COMMISSIONER
          EMPLOYEES PROVIDENT FUND ORGANIZATION, SUB
          REGIONALOFFICE, BHAVISHYANIDHI BHAVAN, KALOOR, KOCHI -
          17]. CORRECTED: * "THE ASSISTANT PROVIDENT FUND
          COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANIZATION,
          SUB REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, PATTAM,
          THIRUVANANTHAPURAM" (ADDRESS OF THE 1ST RESPONDENT IS
          CORRECTED AS PER ORDER DATED 12/4/12 IN IA 5687/12)
    2     THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL
          4TH FLOOR, CORE 2, SCOPE MINAR, LAXMI NAGAR,
          DELHI - 110 092.
          BY ADV SRI.N.N.SUGUNAPALAN (SR.)
          SMT.NITA.N.S,SC( EPF)



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 9083 OF 2012

                                       2


               P.V.KUNHIKRISHNAN, J.
              ------------------------------
              W.P.(C).No. 9083 of 2012
      ----------------------------------------------
      Dated this the 11th day of January, 2023


                              JUDGMENT

The above Writ Petition is filed with the

following prayers:

"(i) Issue a writ of certiorari or other appropriate writ or order quashing and setting aside Exhibits P-1 and P-3,

(ii) Issue a writ of mandamus or other appropriate writ or order, directing the respondent to take up and dispose of Exhibit P-2 afresh after provided the petitioner with an opportunity of hearing,

(iii) be further pleased to issue such other writ order or direction as this Honorable Court deems just and proper in the circumstances of the case."[SIC]

2. The petitioner partnership firm is running an

establishment engaged in the manufacture of seasoned

rubber products. The establishment is covered under the

provisions of Employees Provident Fund and

Miscellaneous Provisions Act, 1952 (for short 'Act 1952') WP(C) NO. 9083 OF 2012

and it is the case of the petitioner that, he has been

remitting contributions from August, 2004 onwards. The

1st respondent issued Exhibit P-1 order under Section 7 A

of the Act, 1952 demanding contribution from 28/8/2000

stating engagement of 20 or more workmen on the said

day. The petitioner filed Exhibit P-2 appeal before the 2 nd

respondent Tribunal against ExhibitP-1. The said appeal

was dismissed for default as per Exhibit P-3. It is the

case of the petitioner that Exhibits P-1 and P-3 are

arbitrary and illegal. Aggrieved by Exts.P1 and P3, this

writ petition is filed.

3. Heard counsel appearing for the petitioner and

the learned Standing counsel appearing for the

respondents.

4. A perusal of Ext.P3 will show that the appeal is

dismissed for default. It is true that there is laches on

the part of the petitioner. But the counsel appearing for

the petitioner submitted that, he will be able to

substantiate the case before the Appellate authority, if WP(C) NO. 9083 OF 2012

an opportunity is given. The Standing counsel appearing

for the respondents seriously opposed the same and

submitted that the amount due is about 10 lakhs and the

petitioner has not paid any amount so far.

5. Considering the facts and circumstances of the

case, I think an opportunity can be given to the

petitioner to prosecute the appeal. As a condition for

the same, the petitioner has to pay an amount of

`2,00,000/- (Rupees Two lakhs only).

Therefore, this writ petition is allowed in the

following manner:

i. Ext.P3 is set aside and ATA No.646(7)2007

is restored on condition that the petitioner will pay

an amount of `2,00,000/-(Rupees Two lakhs only)

within a period of two months from the date of

receipt of a copy of this judgment.

ii. The Employees Provident Fund appellate

Tribunal, New Delhi will forward the appeal filed to

the Tribunal concerned forthwith. The Tribunal WP(C) NO. 9083 OF 2012

concerned will decide the appeal on merit after

giving an opportunity of hearing to the petitioner

and the respondents, as expeditiously as possible,

on condition that the petitioner deposit an amount of

`2,00,000/-(Rupees Two lakhs only) before the 1 st

respondent within a period of two months from the

date of receipt of a copy of this judgment as directed

above.

iii. I make it clear that, if the amount is not

deposited as directed above, Ext.P3 order will revive

and the respondents are free to proceed in

accordance to law.

iv. If the amount is paid as directed above,

the Tribunal concerned will consider this amount also

while deciding the application for waiver submitted

along with the appeal.

Sd/-

                                           P.V.KUNHIKRISHNAN
DM                                               JUDGE
 WP(C) NO. 9083 OF 2012



                APPENDIX OF WP(C) 9083/2012

PETITIONER EXHIBITS


EXHIBIT P1        TRUE COPY OF ORDER DATED 13/4/2007
                  ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2        TRUE COPY OF APPEAL MEMORANDUM AND THE
                  APPLICATIONS    SUBMITTED    BY     THE

PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF ORDER DATED 2/11/2010 IN ATA NO. 646 (7) 2007.

RESPONDENTS EXHIBITS :

EXHIBIT R1(A) TRUE COPY OF THE SSI CERTIFICATE NO.A 51661 PRODUCED BY THE EMPLOYER.

EXHIBIT R1(B) TRUE COPY OF THE LICENSE ISSUED BY THE PANCHAYAT.

EXHIBIT R1(C) TRUE COPY OF THE REGISTRATION CERTIFICATE.

        //TRUE COPY//                 PA TO JUDGE