Twenty Four Assures Services Pvt. Ltd vs Regional Provident Fund Commissioner
2024 Latest Caselaw 5017 Ker

Kerala High Court

Twenty Four Assures Services Pvt. Ltd vs Regional Provident Fund Commissioner on 15 February, 2024

Author: P Gopinath

Bench: P Gopinath

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
               THE HONOURABLE MR. JUSTICE GOPINATH P.
    THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
                      WP(C) NO. 17647 OF 2020
PETITIONER:

          TWENTY FOUR ASSURES SERVICES PVT. LTD.,
          132, GIRINAGAR CANAL ROAD, KOCHI, PIN-682 020, REP. BY
          ITS MANAGING DIRECTOR VINOO KURIAN DEVASSIA, AGED 47
          YEARS, S/O.P.K.DEVASSIA, RESIDING AT FLAT NO.16E,
          CASTLE TOWER, TRINITY APARTMENT, EDAPPALLY, PIN-682
          024.
          BY ADVS.
          PEEYUS A.KOTTAM
          HRITHWIK D. NAMBOOTHIRI
          ARJUN S BENEDICT


RESPONDENT:

          REGIONAL PROVIDENT FUND COMMISSIONER,
          EMPLOYEES PROVIDENT FUND ORGANISATION,
          REGIONAL OFFICE, KALOOR, KOCHI-682 017.

          BY ADV S.PRASANTH, SC, EPFO


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 17647 OF 2020
                                   2

                             JUDGMENT

The petitioner has approached this Court challenging Ext.P4

demand notice calling upon the petitioner to remit a sum of

Rs.7,35,642/-, which is stated to be the Provident Fund dues on

account of non enrollment of certain employees in the Provident

Fund Scheme.

2. The learned counsel appearing for the petitioner would

submit that the demand in Ext.P4 is not sustainable in law. It is

submitted that all the employees of the petitioner were duly covered

under the Employees' Provident Funds Scheme and contributions in

that regard were also paid by the petitioner. It is submitted that the

demand now raised is on the basis that certain trainees, who had

been provided training for specified periods as a part of their studies,

should also have been covered under the EPF Scheme. It is

submitted that this issue is covered in favour of the petitioner by the

judgment of the Supreme Court in Regional Provident Fund

Commissioner, Mangalore v. Central Arecanut and Cocoa Marketing

and processing Co-Operative Limited, Mangalore [2006 KHC 104],

where it was held that apprentices are excluded from the definition

of 'employee' for the purposes of the EPF Act. It is submitted that

the same issue was considered by this Court in Sivagiri Sree WP(C) NO. 17647 OF 2020

Narayana Medical Mission Hospital v. Regional Provident Fund

Commissioner and Another [2018 KHC 542].

3. The learned Standing Counsel appearing for the

Provident Fund Organization would vehemently oppose the grant of

any relief to the petitioner. It is submitted that the petitioner has no

cause of action to approach this Court by filing a writ petition under

Article 226 of the Constitution of India. It is submitted that if the

petitioner is in any manner aggrieved by the determination of the

authorities under Section 7A of the EPF Act, it is for the petitioner to

approach statutory tribunal by filing an appeal. It is submitted that

the petitioner has not even challenged the order under Section 7A of

the EPF Act and therefore, the petitioner cannot be granted any

relief in this writ petition. It is also submitted that the contention

taken that the demands were raised in violation of principles of

natural justice cannot be accepted as the petitioner was admittedly

heard before the proceedings under Section 7A of the EPF Act were

finalized.

4. The learned counsel appearing for the petitioner, in

reply, would submit that even the order under Section 7A of the EPF

Act has not been served on the petitioner. It is submitted that the

office of the petitioner was locked and was not functioning for WP(C) NO. 17647 OF 2020

several months during the Covid -19 pandemic and apart from the

demand notice (Ext.P4), which itself was issued on 25.06.2020 and

in the middle of the Covid - 19 pandemic, no other proceeding was

served or has been received by the petitioner.

5. The learned counsel appearing for the Provident Fund

Department would submit that the contention now taken in Court

that the copy of the proceedings under Section 7A of the EPF Act was

not served on the petitioner is not bona fide as no such contention

has been taken in the writ petition.

Having heard the learned counsel appearing for the petitioner

and the learned Standing Counsel appearing for the Provident Fund

Department, I am of the view that in the facts and circumstances of

the case, an opportunity can be given to the petitioner to file an

application for review of any order issued against the petitioner

under Section 7A of the EPF Act, on the basis of which Ext.P4

demand has been issued to the petitioner. I am inclined to accept the

contention of the petitioner that no order under Section 7A of the

EPF Act has been received by him taking note of the fact that

immediately after receipt of Ex.P4 demand notice, the petitioner had

submitted a reply, which was duly acknowledged by the Provident

Fund Office, stating that the office of the petitioner had remain WP(C) NO. 17647 OF 2020

closed for several months owing to the Covid - 19 pandemic. This, in

my opinion, lends credence to the contention of the learned counsel

for the petitioner that the petitioner has not been served with a copy

of the proceedings under Section 7A of the EPF Act. Since the order

under Section 7A of the EPF Act has now been produced along with

the statement filed by the Standing Counsel for the respondent, the

petitioner will be permitted to file an application under Section 7B of

the EPF Act, within a period of one month from the date of receipt of

a certified copy of this judgment. If such application is filed by the

petitioner, the application under Section 7B of the EPF Act shall be

decided by the competent authority, after affording an opportunity of

hearing to the petitioner. Since the petitioner is being given an

opportunity to file an application for review under Section 7B of the

EPF Act, the recovery proceedings initiated against the petitioner

will stand quashed, making it clear that further proceedings for

recovery can be initiated based on the orders to be passed on the

application for review to be filed by the petitioner under Section 7B

of the EPF Act. I make it clear that I have not expressed any opinion

on the merits of the matter.

Sd/-

GOPINATH P. JUDGE DK WP(C) NO. 17647 OF 2020

APPENDIX OF WP(C) 17647/2020

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ELECTRONIC CHALLAN CUM RETURN (ECR) FOR THE WAGE MONTH OF APRIL 2012 AND RETURN MONTH OF 5/2012.

EXHIBIT P2 TRUE COPY OF THE ELECTRONIC CHALLAN CUM RETURN (ECR) FOR THE WAGE MONTH OF 7/2012 AND RETURN FOR THE MONTH OF 8/2012 DATED 16.04.2013.

EXHIBIT P3 TRUE COPY OF THE CHALLAN SHOWING SHOWING PAYMENT OF PROVIDENT FUND FOR THE MONTH OF JULY, 2014.

EXHIBIT P4 THE TRUE COPY OF THE DEMAND NOTICE DATED 25.06.2020 ISSUED BY THE RESPONDENT REGIONAL PROVIDENT FUND COMMISSIONER AND RECOVERY OFFICER TO THE PETITIONER.

EXHIBIT P5 TRUE COPY OF THE JUDGMENT REPORTED IN 2006 KHC 104 (REGIONAL PROVIDENT FUND COMMISSIONER, MANGALORE V.CENTRAL ARECANUT AND COCOA MARKETING AND PROCESSING CO-OPERATIVE LTD., MANGALORE).

EXHIBIT P6 TRUE COPY OF THE JUDGMENT REPORTED IN 2018 KHC 542 (SIVAGIRI SREE NARAYANA MEDICAL MISSION HOSPITAL V.REGIONAL PROVIDENT FUND COMMISSIONER AND ANR.) RESPONDENT EXHIBITS ANNEXURE - 1 TRUE COPY OF THE ORDER DATED 05.09.2019 PASSED UNDER SECTION 7A.

ANNEXURE - 2 TRUE COPY OF THE PROCEEDINGS OF THE HEARING HELD ON 25.07.2019.