A.A. Wilson v. Assistant Provident Fund Commissioner & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932** **WP(C).No. 21851 of 2010(F)** **----------------------------------------** **PETITIONER(S):** **-------------------------** **A.A.WILSON, LICENSEE, M/S.ANURAG THEATRE, SHORNUR, PALAKKAD DIST.** **BY ADVS. SRI.VIJU ABRAHAM, SRI.DOMINIC JOHNSON.** **RESPONDENT(S):** **---------------------------** **1. ASST.PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANIZATION, SUB REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, ERANHIPALAM P.O., CALICUT.** **2. THE ENFORCEMENT OFFICER, EMPLOYEES PROVIDENT FUND ORGANIZATION, PALAKKAD.** **3. EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, MINISTRY OF LABOUR AND EMPLOYMENT SCOPE MINAR CORE - 2, 4TH FLOOR, LAXMI NAGAR DISTRICT CENTER, DELHI - 110 092.** **R1 & R2 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC, P.F.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **K. SURENDRA MOHAN, J.** **-----------------------------------------------------------W.P(C) NO:21851 OF 2010 F ----------------------------------------------------------Dated this the 14[th] July, 2010.** ## **JUDGMENT** The petitioner claiming to be a licencee of Anurag Theatre Shornur, Palakkad district has filed this writ petition challenging Exts.P8 and P9 proceedings issued by the Employees Provident Fund Organisation. As per Ext.P8 order it has been held that the petitioner is liable to be covered by the provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (the 'Act' for short) and an order has been passed under Section 7A of the Act. Ext.P9 is a requisition issued under Section 8 of the Act for recovery of the amounts determined as per Ext.P8. According to the petitioner, Exts.P8 and P9 proceedings have been challenged by him before the Employees Provident Fund Appellate Tribunal by filing Ext.P10 appeal. The appeal is now posted to 3/8/2010 for admission. Therefore, the petitioner prays for keeping in abeyance all further action of respondents 1 and 2 to recover the amounts determined in Ext.P8. 2. Adv. Thomas Mathew Nellimoottil who appears for respondents 1 and 2 submits that the appeal Ext.P10 is time barred and that the same is not maintainable. It is pointed out that the WPC 21851/2010 2 petitioner had earlier approached this Court by filing a writ petition O.P.13785/2003 which was disposed of as per Ext.P7 judgment dated 20/11/2006. In the said judgment, though the petitioner was permitted to file an appeal against Ext.P8 before the third respondent, it is pointed out that the petitioner did not avail of the said opportunity. Therefore, the time expired. According to the counsel, there is no justification for giving any further opportunity to the petitioner. Therefore, he prays for dismissal of this writ petition. 3. Counsel for the petitioner Mr. Viju Abraham points out that Ext.P5 review petition had been filed against Ext.P4 order under Section 7A of the Act. It was at that stage that the writ petition that has been disposed of by Ext.P7 judgment was filed. It was only after Ext.P7 judgment that Ext.P8 proceedings have been issued. Therefore he submits that the contention of the counsel for respondents 1 and 2 is not sustainable. The counsel for respondents 1 and 2 have also relied on the decision reported in **Assistant Commissioner of Central Excise v. Krishna Poduval {2005(4) KLT 947}** to contend that the writ petition itself is not maintainable since statutory remedy has become time barred. Counsel for the petitioner counters the above argument by placing WPC 21851/2010 3 ## reliance on the decision of another Division Bench of this Court in **M/s. Panopharam v. Union of India and others {ILR 2010(2) Kerala 909}.** 4. I have heard Shri. Viju Abraham counsel for the petitioner as well as Shri. Thomas Mathew Nellimoottil, counsel for respondents 1 and 2 in detail. I have gone through the records of the case and have given anxious consideration to the rival contentions advanced by the parties. 5. According to the petitioner Messrs. Anurag Theatre has only four employees and therefore, is not liable to be covered by the provisions of the Act. However, as per Ext.P4 proceedings the establishment has been directed to be covered and an order under Section 7A of the Act has been passed. Ext.P4 is dated 4/12/2002. It is seen that the petitioner had filed Ext.P5, a review petition under Section 7B of the Act challenging Ext.P4. As per Ext.P6 proceedings, the petitioner was informed by the first respondent that since only coverage has been determined by Ext.P4, the enquiry under Section 7A would be conducted and the dues would be determined only after verification of the records of the establishment. It was at the said stage that the petitioner had WPC 21851/2010 4 approached this Court by filing O.P.13785/2003. The judgment in the said case being short, is extracted hereunder, in full:- “Petitioner is aggrieved by the proceedings initiated under Section 7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. It is for the petitioner to pursue the matter in appeal before the Tribunal. In the event of the petitioner thus pursuing the remedy before the Tribunal within a period of two months from today, the same shall be treated to have been filed in time. Thereafter the Tribunal will consider the matter with notice to the petitioner and appropriate orders in accordance with law, will be passed with another four months. This original petition is disposed of as above.” 6. A reading of the above judgment shows that an opportunity was given to the petitioner to challenge Ext.P4 before the third respondent by filing an appeal against the same, within a period of two months from the date thereof. However, it is admitted that no such appeal was preferred by the petitioner. In the above circumstances the enquiry under Section 7A was completed and a determination order Ext.P8 was passed by the first respondent on 29/10/2007. It was open to the petitioner to have challenged the same before the third respondent by filing an appeal against the same. However, the petitioner did not do so. WPC 21851/2010 5 Consequently, the subsequent proceedings Ext.P9 have been issued seeking recovery of the amounts determined as per Ext.P8. Ext.P9 is dated 1/4/2009. The petitioner did not challenge Ext.P9 also. Though it is submitted that the petitioner has filed Ext.P10 appeal, the same is seen dated as 24/6/2010. Therefore, it is to be noted that the petitioner had not filed any appeal within the period of limitation prescribed by the Act. According to the counsel for the petitioner since the appeal has been posted for admission to 3/8/2010 it is just and necessary that proceedings to recover the amounts demanded is kept in abeyance till some decision is taken by the third respondent on Ext.P10. 7. The counsel for respondents 1 and 2 places reliance on **Assistant Commissioner of Central Excise v. Krishna Poduval (supra)** to contend that once the period of limitation is run out the petitioner cannot invoke the discretionary jurisdiction under Art.226 of the Constitution for the same relief. Summing up the position, this Court has observed as follows:- “At the outset we may state that in so far as the respondents have not taken up the original orders imposing penalty in appeals before the appellate authority within the maximum period prescribed under S.85(3) of the Finance Act, 1994, they cannot get the WPC 21851/2010 6 appeals revived and heard on merits by resorting to the discretionary remedy before this Court under Art.226 of the Constitution of India. Once the period of limitation has run itself out and the appellate authority does not have power to condone the delay in filing the appeals beyond the maximum period prescribed under the Act, the remedies of the appellants come to an end just like in the case of a time barred suit and the respondents cannot, by invoking the discretionary remedy under the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, resurrect their unenforceable cause of action and require this court to consider their contentions against the original orders on merit. That would amount to defeating the very law of limitation which we are not expected to do under Art.226. If we are to entertain the contentions of the respondents on merits, that would amount to negating the law of limitation which we have no jurisdiction to do under Article 226 and which may even lead no anomalous results. We are not satisfied that the jurisdiction of this Court under Art.226 of the Constitution of India is so wide as to resurrect a cause of action which has become unenforceable on account of the law of limitation. Further, we are of the firm opinion that the jurisdiction under Art.226 of the Constitution of India cannot be invoked against express statutory provisions, however harsh the effect WPC 21851/2010 7 of the provisions may be on an assessee or litigant.” 8. The counsel for the petitioner relies upon the decision reported in ILR 2010(2) Kerala 909 to contend that the above decision by a later Division Bench has read down the dictum in the earlier Division Bench by laying down that, where issues that the appellate authority could not have decided are also raised in a writ petition even after a statutory remedy is barred, the same would be maintainable. After considering the scope of the dictum laid down by the earlier Division Bench, P.R.Raman, J has made the following observations in paragraph 23 thereof: “When we read the entire judgment, we have no doubt in our mind the principles stated in the said decisions is in conformity with the earlier decisions of this Court as also that of the Supreme Court referred to therein. That a party whose remedy by way of an appeal under the statute is barred by the period prescribed thereunder is no reason by itself to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India. If the writ petition raises issues on which ordinarily relief could not be given by that statutory authority then the fact that a writ petition is filed beyond the period prescribed under the statute is not liable to be dismissed on that ground. In other words, he will be similarly placed with the person who invoke the remedy under Article 226 even where the WPC 21851/2010 8 period of limitation as prescribed under the statute is not over. So, the question is whether there exists such circumstances warranting interference in a writ petition, either because a statutory remedy is not effective or because there is a violation of the statute or principles of natural justice or when there is an infringement of the fundamental right. In such situation, it cannot be said that Article 226 remedy is ousted.” 9. The resultant position therefore is that where contentions that are not capable of being adjudicated by the appellate authority are raised in a writ petition, the fact that the statutory remedy had become time barred would not by itself be a ground to dismiss the same. Therefore, the question to be considered here is whether this writ petition has raised any issue that is not capable of being decided by the third respondent – statutory appellate authority. 10. As noticed above, the contention of the petitioner is that the Anurag theatre employs only four persons and in spite of the above factual position, the establishment has been directed to be covered by Exts.P8 and P9. However, I notice that the issue regarding coverage was decided by the earlier proceedings Ext.P4 which is dated 4/12/2002 and that it is only the determination of the dues payable by the petitioner that has been done as per WPC 21851/2010 9 Ext.P8. Though the petitioner had been given an opportunity to challenge Ext.P4 by filing an appeal before the third respondent he did not avail of the said remedy. Therefore, Ext.P4 had become final even before Ext.P8 proceedings were passed. This Court in Ext.P7 judgment held that the contentions of the petitioner were best left to be determined by the third respondent appellate tribunal and therefore, directed an appeal to be filed. Having not availed of the said remedy it is not open to the petitioner to reagitate the very same contention in this writ petition. Since Ext.P10 appeal is pending consideration of the third respondent, I do not want to say anything about the maintainability of the same at this stage. In the above circumstances I do not find any grounds to entertain this writ petition. The same is accordingly dismissed. No costs. ## K. SURENDRA MOHAN Judge jj WPC 21851/2010 10