Kerala High Court
The Asst.Provident Fund Commissioner vs Capt.N.Krishna Menon on 6 February, 2024
Author: P Gopinath
Bench: P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
WP(C) NO. 22259 OF 2011
PETITIONER:
THE ASST. PROVIDENT FUND COMMISSIONER
COMMISSIONER,, EMPLOYEES PROVIDENT FUND ORGANISATION,,
REGIONAL OFFICE BHAVISHYANIDHI BHAVAN, PATTOM,,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.N.N.SUGUNAPALAN (SR.)
SMT.T.N.GIRIJA SCEPF ORGANISATION
NITA N.S
RESPONDENTS:
1 CAPT.N.KRISHNA MENON (EXPIRED)
PROPRIETOR, M/S/VEENUS GAS AGENCY,, NCC ROAD, PEROORKADA,,
THIRUVANANTHAPURAM-695 005.
2 THE EMPLOYEES PROVIDENT FUND APPELLATE
TRIBUNAL, SCOPE MINAR, CORE II 4TH FLOOR,, LAXMI NAGAR,
DISTRICT OFFICE, LAXMI NAGAR,, NEW DELHI-110 092.
*3 NARAYANA MENON
S/O. CAP.N KRISHNA MENON, LAVANYA, SMRA 28, SASTHAMANGALAM,
THIRUVANANTHAPURAM
*4 VISHNU MENON
S/O. CAP.N KRISHNA MENON, LAVANYA, SMRA 28, SASTHAMANGALAM,
THIRUVANANTHAPURAM
*5 SHYLAJA MENON
W/O. CAP.N KRISHNA MENON, LAVANYA, SMRA 28, SASTHAMANGALAM,
THIRUVANANTHAPURAM
*ADDITIONAL RESPONDENTS 3 TO 5 ARE IMPLEADED AS PER THE
ORDER DATED 06.02.2024 IN I.A.NO.1/2024 IN WPC NO.22259/2011
BY ADVS.
SRI.B.ASHOK SHENOY -R1
SMT.LAKSHMI B.SHENOY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C.)NO.22259 OF 2011
2
JUDGMENT
Dated this the 06th day of February, 2024
The petitioner has approached this Court,
challenging Ext.P8 order of the Employees'
Provident Fund Appellate Tribunal (hereinafter
referred to as 'the Appellate Tribunal') in ATA
No.789(7) of 2008. By the said order, the Appellate
Tribunal had set aside Ext.P3 order issued under
Section 7A of the Employees' Provident Funds and
Miscellaneous Provisions Act, 1952 (hereinafter
referred to as 'the EPF Act').
2. The learned Counsel appearing for the
petitioner would submit that the Appellate Tribunal
had illegally and without just reason, interfered with
Ext.P3 order of the Assistant Provident Fund
Commissioner, Thiruvananthapuram. It is submitted
that, Ext.P3 order came to be issued, as 20 or more
employees are engaged directly or indirectly for the
W.P.(C.)NO.22259 OF 2011
period from March, 2006 and April, 2007, by the 1 st
respondent. It is submitted that the 1st respondent
was a distributor of LPG and delivery boys engaged
by the establishment were not taken to be
employees for the purpose of determination of the
question as to whether the provisions of the EPF
Act, would extend to the establishment. It is
submitted that, in Ext.P3 order, the Assistant
Provident Fund Commissioner came to the
conclusion that from the profit and loss accounts, it
is seen that an amount of Rs.4,12,022/- (Rupees
four lakh twelve thousand twenty two only) was
paid as salary for the year 2005-06 and
Rs.2,31,790/- (Rupees two lakh thrity one thousand
seven hundred ninety only) was paid as delivery
expenses for the same year. It is submitted that
during the year 2006-07, the salary was
Rs.4,45,171/- (Rupees four lakh forty five thousand
one hundred and seventy one only), while delivery
W.P.(C.)NO.22259 OF 2011
expenses was Rs.3,15,010/-. (Rupees three lakh
fifteen thousand ten only). It is pointed out that,
though the ledger account of the establishment in
March, 2006 and April, 2006 indicate that salaries
were paid only to 15 employees, delivery expenses
had been paid almost daily. It is submitted that,
from the above, it is clear that the establishment
had engaged delivery boys who were not included
in the list of employees. It is submitted that, going
by the definition of 'employee' in Section 2(f) of the
EPF Act, employee means a person who is
employed for wages in any kind of work manually or
otherwise, or in connection with the work of an
establishment and who gets his wages directly or
indirectly from the employer. It is submitted that,
since the delivery of LPG was practically the only
activity of the establishment, the delivery boys
engaged by the establishment would be clearly
covered within the definition of 'employees' and
W.P.(C.)NO.22259 OF 2011
therefore, the contention of the proprietor of the
establishment that he had not engaged more than
15 employees during the relevant period is only to
be rejected. It is also pointed out that the EPF Act is
a beneficial legislation, intended as a measure of
social justice and therefore should construed
liberally, so as to confer benefits on the employees
to the maximum extent. It is submitted that without
considering any of these aspects, the Appellate
Tribunal had set aside Ext.P3 order. It is submitted
that Ext.P8 order of the Appellate Tribunal is a
nonspeaking order and is therefore to be set aside
and the appeal filed by the 1st respondent should be
remanded to the Appellate Tribunal for fresh
consideration.
3. Pending consideration of this Writ Petition,
the 1st respondent expired. His legal heirs are now
on record as additional respondents 3 to 5.
W.P.(C.)NO.22259 OF 2011
4. Having heard the learned Counsel for the
petitioner and having perused Ext.P3 order of the
Assistant Provident Fund Commissioner,
Thiruvananthapuram, and Ext.P8 order of the
Appellate Tribunal, in ATA No.789(7) of 2008, I am
of the view that, the petitioner has not made out
any case for interfering with Ext.P8 order. Ext.P3
order proceeds on the basis that delivery boys
engaged by the 1st respondent were not included in
the muster-roll and if the names of the delivery
boys are also included, the number of employees
will be more than 20, and therefore, the
establishment ought to be covered under the
provisions of the Employees' Provident Fund Act.
The Appellate Tribunal, while considering this
question, correctly held that the burden is on the
employer to show that he had not engaged more
than 20 employees at any point of time. The
Appellate Tribunal thereafter, held that the register
W.P.(C.)NO.22259 OF 2011
and muster-roll produced before the authority,
clearly show that the staff never exceeded 15, and
there was no material brought out to reject such
document. It was found that, in Ext.P3, the
Assistant Provident Fund Commissioner had
proceeded on the basis that, since amounts were
paid separately as delivery expenses, it should be
presumed that there were employees over and
above, the employees whose names were shown in
the muster-roll. A perusal of Ext.P3 order also
suggest that this finding of the Appellate Tribunal is
correct. Ext.P3 order does not identify the delivery
boys who have been engaged by the employer.
Instead, it proceeds to determine that more than 20
employees were engaged, only on the basis that
charges were paid for delivery over and above the
salary paid to the 15 employees on the muster-roll.
Therefore, the Appellate Tribunal is right in
concluding that the payment of delivery expenses
W.P.(C.)NO.22259 OF 2011
cannot by itself, be determinative of the fact that
the establishment had engaged more than 15
employees at any point of time. Therefore, I find no
reason to interfere with Ext.P8 order of the
Appellate Tribunal.
The Writ Petition fails and is accordingly
dismissed.
Sd/-
GOPINATH P.
JUDGE
NB/6-2
W.P.(C.)NO.22259 OF 2011
APPENDIX OF WP(C) 22259/2011
PETITIONER EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE COVERAGE NOTICE DATED 2.2.2007
EXHIBIT P2 TRUE COPY OF THE LIST OF 24 EMPLOYEES DULY
SIGNED BY THE MANAGER DATED 7.12.2006
EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS DATED 28.05.2008
EXHIBIT P4 TRUE COPY OF THE PROFORMA FOR COVERAGE SIGNED
BY THE 1ST RESPONDENT
EXHIBIT P5 TRUE COPY OF THE FORM 5A RETURN SIGNED BY THE
1ST RESPONDENT
EXHIBIT P6 TRUE COPY OF THE MEMORANDUM OF APPEAL IN ATA
NO.789(7) 2008
EXHIBIT P7 TRUE COPY OF THE COUNTER AFFIDAVIT
EXHIBIT P8 TRUE COPY OF THE ORDER OF THE APPELLATE
TRIBUNAL
RESPONDENTS EXHIBITS: NIL
TRUE COPY
P.A. TO JUDGE
