Kerala High Court
The General Manager vs The Regional Provident Fund ... on 24 September, 2024
Author: Amit Rawal
Bench: Amit Rawal
WA NO. 1449 OF 2024 &
WPC No.12617 of 2014 1 2024:KER:71165
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 24TH DAY OF SEPTEMBER 2024 / 2ND ASWINA, 1946
WA NO. 1449 OF 2024
AGAINST THE JUDGMENT DATED 03.06.2024 IN WP(C) NO.24552 OF
2015 OF HIGH COURT OF KERALA
APPELLANT(S)/PETITIONER :
THE KERALA STATE CO-OPERATIVE BANK (KERALA BANK),
REGIONAL OFFICE, HPO ROAD,
SULTHANPET, PALAKKAD REPRESENTED BY ITS GENERAL
MANAGER IN CHARGE.
(THE AMALGAMATED BANK OF MALAPPURAM DISTRICT
CO-OPERATIVE BANK LTD. NO 4329,
MALAPPURAM DISTRICT), PIN - 676505
BY ADV P.C.SASIDHARAN
RESPONDENT(S)/RESPONDENTS:
1 REGIONAL PROVIDENT FUND COMMISSIONER
KOZHIKODE, SUB DIVISIONAL OFFICE,
BHAVISHYANIDHIBHAVAN, ERANHIPALAM P.O,
KOZHIKODE, PIN - 673004
2 THE KERALA STATE CO-OPERATIVE EMPLOYEES
PENSION BOARD, REPRESENTED BY ITS SECRETARY,
KERALA STATE EMPLOYEES PENSION BOARD, PB NO. 85,
KALANIVAS, TC NO.27/156,
157 CHINMAYA LANE, KUNNUMPURAMAYURVEDHA COLLEGE,
TRIVANDRUM, PIN - 695001
BY ADVS.
ABRAHAM P.MEACHINKARA
WA NO. 1449 OF 2024 &
WPC No.12617 of 2014 2 2024:KER:71165
M.SASINDRAN .
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24.09.2024,
ALONG WITH WP(C) NO.12617/2014, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WA NO. 1449 OF 2024 &
WPC No.12617 of 2014 3 2024:KER:71165
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 24TH DAY OF SEPTEMBER 2024 / 2ND ASWINA, 1946
WP(C) NO. 12617 OF 2014
PETITIONER/S:
THE GENERAL MANAGER
MALAPPURAM DISTRICT CO-OPERATIVE BANK LTD. NO. 4329,
MALAPPURAM, MALAPPURAM DISTRICT-676505.
BY ADVS.
SRI.ESM.KABEER
SRI.ABDUL MAJEED.N
P.C SASIDHARAN
RESPONDENT/S:
1 THE REGIONAL PROVIDENT FUND COMMISSIONER
KOZHIKODE, SUB DIVISIONAL OFFICE,
BHAVISHANIDHI BHAVAN, ERANHIPALAM.P.O.,
KOZHIKODE-673006.
2 THE KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD
REPRESENTED BY ITS SECRETARY, KEFRALA STATE EMPLOYEES
CO-OPERATIVE PENSION BOARD, P.B.NO. 85, KALA NIVAS,
TC NO. 27/156, 157 CHINMAYA LANE,
KUNNUMPURAM AYURVEDA COLLEGE,
THIRUVANANTHAPURAM-695001.
3 THE ADDITIONAL REGISTRAR/SECRETARY
KERALA STATE CO-OPERATIVE EMPLOYEES PENSION BOARD,
P.B.NO. 85, THIRUVANANTHAPURAM-01.
WA NO. 1449 OF 2024 &
WPC No.12617 of 2014 4 2024:KER:71165
4 ADDL R4 IMPLEADED
DISTRICT CO-OPERATIVE BANK EMPLOYEES
FEDERATION(KERALA),
MALAPPURAM DISTRICT COMMITTEE, REPRESENTED BY ITS
SECRETARY, C.BALASUBRAMANIAN, BRANCH MANAGER,
M.D.C.BANK.POOVATHANI-679 322, MALAPPURAM (DIST)
ADDL R4 IS IMPLEADED AS PER ORDER DATED 09-07-2014 IN
IA 8984/14.
BY ADVS.
SRI.THOMAS MATHEW NELLIMOOTTIL,SC, P.F.
SRI.V.RAJENDRAN
SMT.P.RIJI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
24.09.2024, ALONG WITH WA NO.1449/2024, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WA NO. 1449 OF 2024 &
WPC No.12617 of 2014 5 2024:KER:71165
AMIT RAWAL & EASWARAN S., JJ.
--------------------------------
W.A. No.1449 of 2024
&
W.P.(C) No.12617 of 2014
------------------------------------------
Dated this the 24th day of September, 2024
JUDGMENT
AMIT RAWAL, J.
This order shall dispose of two matters; Writ Appeal No.1449
of 2024 arising out of the judgment rendered by the learned Single
Bench in W.P.(C) No.24552 of 2015 dated 3.6.2024 whereby, the
appellant Co-operative Bank had not been successful in challenging
the demand of Rs.1,15,17,083/- (Rupees One Crore Fifteen Lakhs
Seventeen Thousand and Eighty Three only) made under Section 14B
of the Employees Provident Fund and Miscellaneous Provisions Act,
1952 ( for short, 'the EPF Act') and W.P.(C) No.12617 of 2014
challenging the demand of Rs.15,75,80,364/- (Rupees Fifteen Crores
Seventy Five Lakhs Eighty Thousand Three Hundred and Sixty Four
only) as per the inspection report dated 30.4.2014.
WA NO. 1449 OF 2024 &
WPC No.12617 of 2014 6 2024:KER:71165
2. The cases aforementioned have a little checkered history.
3. The State Government caused a notification exempting the
applicability of the EPF Act to the employees of the Malappuram Co-
operative Bank ('the bank', for short) with effect from 1.4.2005.
Aforementioned notification was challenged by the Employees of the
Bank before this Court vide Writ Petition Nos.33534 of 2010 and
35373 of 2010, and the learned Single vide judgment dated 31.1.2012
quashed the said notification.
4. The aforementioned matter was taken up in Writ Appeal
No.1019 of 2012 and connected cases which was dismissed by the
Division Bench vide judgment dated 27.6.2012.
5. The respondent Pension Board approached the Honourable
Supreme Court vide S.L.P. No.37019 of 2012. However, in the
meantime, the competent authority issued a notice to the
appellant/writ petitioner to pay the contribution of the Employees
Provident Fund due from July 2009 to March 2014 amounting to
Rs.15,75,80,364/- (Rupees Fifteen Crores Seventy Five Lakhs Eighty
WA NO. 1449 OF 2024 &
WPC No.12617 of 2014 7 2024:KER:71165
Thousand Three Hundred and Sixty Four only). The said matter was
again challenged before this Court in Writ Petition No.17617 of 2012
which was disposed of vide judgment dated 23.10.2013 directing to
keep the proceedings in abeyance till the disposal of the S.L.P.
No.37019 of 2012.
6. Sri. Ashraf on behalf of Sri.P.C. Sasidharan, the learned
counsel appearing for the petitioner bank submitted that the
predicament of the appellant/writ petitioner is writ large exigibility
either under the EPF Act, 1952 or the Pension Scheme owing to the
pendency of the matter. The dismissal of the Writ Petition No.17617 of
2012 dated 23.10.2013 would be inconsequential for, the disposal of
the writ petition has kept the interest of the appellant/writ petitioner in
tact and therefore, the demand of Rs.15 Crores raised by the notice in
a proceeding under Section 7A for the period July 2009 to March 2014
is liable to be revisited. Similarly, consequential effect of damages as
provided under Section 14B of the EPF Act 1952 amounting to
Rs.1,15,17,083/- (Rupees One Crore Fifteen Lakhs Seventeen
WA NO. 1449 OF 2024 &
WPC No.12617 of 2014 8 2024:KER:71165
Thousand and Eighty Three only) of the same period is also not
sustainable in the eyes of law. However, the learned Single Judge
dismissed the writ petition bearing No.24552 of 2015 on the ground
that the appellant/writ petitioner did not make any contribution either
in the EPF scheme or as per the provisions of the EPF Act, but failed to
notice the fact that the appellant/petitioner had already made the
contribution of Rupees two Crores and odd amount to the pension
board, therefore, there is an abdication.
7. On the other hand Sri.Abraham P. Meachinkara, the
learned Standing Counsel appearing on behalf of the Pension Board in
the writ appeal submitted that already there is an inter-parte
judgment between the parties in Writ Petition No.17617 of 2012 dated
23.10.2013. Therefore, the appellant cannot be permitted to challenge
the 14B proceedings without availing the remedy of appeal. The
establishment is defaulter in not making the contribution under the
EPF Scheme and as well as under the EPF Act particularly when the
notification granting exemption had already been quashed. The
WA NO. 1449 OF 2024 &
WPC No.12617 of 2014 9 2024:KER:71165
matter before the Honourable Supreme Court was with regard to the
date of implementation of the scheme for voluntarily adoption whereas
the case in hand was of not such nature and therefore non deposit of
the contribution on account alleged dilemma is not acceptable.
8. On the other hand Sri. Thomas Mathew Nellimoottil, the
learned Standing Counsel appearing on behalf of the 1st respondent
in the W.P.(C) No.12617 of 2014 submitted that the demand of
Rs.15,75,80,364/- (Rupees Fifteen Crores Seventy Five Lakhs Eighty
Thousand Three Hundred and Sixty Four only) for the period July 2009
to March 2014 had been raised after adjustment of the amount
already paid by the petitioner- bank towards the EPF contribution and
establishment is at liberty to seek refund of Rs.2,00,00,000/- (Rupees
two Crores only) deposited towards the pension with pension board
but cannot seek set off in the manner and mode as projected, thus
prayed for dismissal of the writ petition.
9. We have heard the learned counsel for the parties and
appraised the paper books.
WA NO. 1449 OF 2024 &
WPC No.12617 of 2014 10 2024:KER:71165
10. The facts noticed above are not in dispute. The question
arises for consideration is that whether the argument of predicament
or dilemma expressed as per the statement would rescue the
appellant/writ petitioner, the answer would be 'no' for the reason that
the notification granting exemption on the applicability of the EPF
Scheme from 1.4.2004 no longer stood in force in view of the order
dated 31.1.2012 in Writ Petition Nos.33534 and 35373 of 2010 and
upheld by the Division Bench vide judgment dated 27.6.2012 in WA
No.1217 of 2012 and connected cases. The matter in the Honourable
Supreme Court was with regard to the promulgation of the scheme
and its applicability to various organisations/ establishment whereas
the establishment in the case in hand was, owing to the non existence
of the notification, liable to pay the contribution of the employees to
the Board. However, the petitioner-bank failed to do so leading to
issuance of the proceedings under Section 7A raising the demand of
Rs.15,75,80,364/- (Rupees Fifteen Crores Seventy Five Lakhs Eighty
Thousand Three Hundred and Sixty Four only) from July 2009 to
WA NO. 1449 OF 2024 &
WPC No.12617 of 2014 11 2024:KER:71165
March 2014. The apprehension that the respondent has not adjusted
the amount already deposited would also not come to the rescue for
the reason that the respondent had already in the counter affidavit
stated with regard to the adjustment of the amount by raising the
demand of Rs.15,97,89,462/- (Rupees Fifteen Crores Ninety Seven
Lakhs Eighty Nine Thousand Four Hundred and Sixty Two only).
Paragraph No.7 of the counter affidavit filed in W.P.(C) No.12617 of
2014 reads as under:
" 7) Answering the contentions in Ground D of the writ petition it is humbly
submitted that the said remittance of Rs.2,98,47,569/- has been excluded
while issuing the 7A proceedings. The Division Bench, in Appeal W.A.
No.36/2014 filed by C.M. Ramanunny, Branch Manager, set aside the
judgment in WP(C) 17617/2012 and the writ petition was dismissed.
Therefore, the 7A enquiry was resumed and an amount of
Rs.18,96,37,031/- was determined out of which Rs.2,98,47,569/- has
been remitted and balance is Rs.15,97,89,462/-. It is respectfully
submitted that the Enforcement Officer has reported the dues as per the
records maintained by the establishment."
11. The proceedings under Section 14B are consequential
inevitable proceedings in case the establishment is found to be in
default of the contribution as per the ratio decidendi culled out in the
WA NO. 1449 OF 2024 &
WPC No.12617 of 2014 12 2024:KER:71165
judgment of the Supreme Court in Horticulture Experiment
Station Gonikoppal, Coorg v. The Regional Provident Fund
Organization [2022 LiveLaw SC 202] .
12. For the reasons aforementioned, we are of the view that
the appellant/petitioner, though have not availed the remedy of appeal
in respect of the order passed under Section 14B, straight away
approached this Court by filing Writ Petition No.24552 of 2015 and
assailed the inspection report dated 30.4.2014 raising a demand of
Rs.15,75,80,364/- (Rupees Fifteen Crores Seventy Five Lakhs Eighty
Thousand Three Hundred and Sixty Four only) cannot be permitted to
agitate the issue of adjustment/revisitation on account of deposit of
some amount with the pension board. Considering the fact that they
were in a dilemma on account of the pendency of the writ petition, we,
by upholding the demand, grant them some concession for depositing
the amount raised under Section 7A and 14B in Twenty Four (24)
equal monthly instalments commencing from 1.10.2024. It is also
made clear that the appellant/petitioner shall be at liberty to make an
WA NO. 1449 OF 2024 &
WPC No.12617 of 2014 13 2024:KER:71165
application for refund of the amount of Rupees two Crores and odd
amount plus any other amount alleged to have been deposited with
the pension board with the presumption that they were falling under
the EPF Scheme, in accordance with law.
Both the Writ Appeal and the Writ Petition stand disposed of.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
EASWARAN S.
JUDGE
NS
WA NO. 1449 OF 2024 &
WPC No.12617 of 2014 14 2024:KER:71165
APPENDIX OF WP(C) 12617/2014
PETITIONER EXHIBITS
Ext.P1. TRUE COPY OF THE ORDER DATD 26-5-2009 ISSUED BY
THE 1ST RESPONDENT.
Ext.P2. TRUE COPY OF THE JUDGMENT IN WPC NO. 1992/2010
DATED 31-1-2012 OF THE HON'BLE HIGHCOURT OF
KERALA.
Ext.P3. TRUE COPY OF THE JUDGMENT IN WPC NO. 17617/2012
DATED 23-10-2013 OF THE HON'BLE HIGH COURT OF
KERALA.
Ext.P4. TRUE COPY OF THE JUDGMENT IN W.A. NO. 36/2014
DATED 10-2-2014 OF THE HON'BLE HIGH COURT OF
KERALA.
Ext.P5. TRUE COPY OF THE REPORT DATED 30-4-2014 ISSUED
BY THE ENFORCEMENT OFFICER.
Ext.P6. TRUE COPY OF THE REPRESENTATION DATED 3-5-2014
SUBMITTED BEFORE THE 3RD RESPONDENT.
