AMBASSADOR SECURITY AND DETECTIVE SERVICES (represented by Managing Director) v Employees Provident Fund Tribunal / Central Government Industrial Tribunal and Assistant Provident Fund Commissioner, EPFO

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **MONDAY, THE 17TH DAY OF JUNE 2019 / 27TH JYAISHTA, 1941 WP(C).No.8934 of 2019** ## **PETITIONER:** **M/S AMBASSADOR SECURITY AND DETECTIVE SERVICES REPRESENTED BY MANAGING DIRECTOR, CHANDRASEKHARAN C.S.CHIRATHALATTU BUILDING, NAGAMPADAM, NEAR MEDICAL CENTER, KOTTAYAM-686001.** **BY ADVS. SRI.R.SUNIL KUMAR SMT.A.SALINI LAL** ## **RESPONDENTS:** **1 EMPLOYEES PROVIDENT FUND TRIBUNAL / CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL, 38/377, A-2, KARITHALA LANE, KARSHAKA ROAD, ERNAKULAM-682016.** **2 THE ASSISTANT PROVIDENT FUND COMMISSIONER, EPFO, REGIONAL OFFICE, ADITYASABARI TOWER, POST OFFICE ROAD, THIRUNAKKARA, KOTTAYAM-686001.** **BY ADV. SRI.JOY THATTIL ITOOP, SC, EPF ORGANISA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.06.2019, ALONG WITH WP(C).9649/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC Nos.8934 & 9649 of 2019 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **MONDAY, THE 17TH DAY OF JUNE 2019 / 27TH JYAISHTA, 1941** **WP(C).No.9649 of 2019** ## **PETITIONER:** **M/S. AMBASSADOR SECURITY AND DETECTIVE SERVICES REPRESENTED BY THE MANAGING DIRECTOR, CHANDRASEKHARAN C.S., CHIRATHALATTU BUILDING, NAGAMPADAM, NEAR MEDICAL CENTER, KOTTAYAM, 686 001.** **BY ADVS. SRI.R.SUNIL KUMAR SMT.A.SALINI LAL** ## **RESPONDENT:** **THE ASSISTANT PROVIDENT FUND COMMISSIONER EPFO, REGIONAL OFFICE, ADITYASABARI TOWER, POST OFFICE, ROAD, THIRUNAKKARA, KOTTAYAM-686 001.** **BY ADV. SRI.JOY THATTIL ITOOP, SC, EPF ORGANISA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.06.2019, ALONG WITH WP(C).8934/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC Nos.8934 & 9649 of 2019 3 ## **JUDGMENT** ## **WPC No.8934 of 2019** Heard Sri R.Sunilkumar, the learned counsel for the petitioner and Sri Joy Thattil Ittoop, the learned standing counsel appearing for the respondent. 2. Ext.P1 is an order under Section 40B of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. The petitioner, it is stated by Mr.R.Sunil Kumar, has availed the remedy of appeal and obtained stay order from the appellate authority. Therefore, the petitioner prefers to work out the remedy availed against Ext.P1. Hence the prayer is not pressed. Statement is placed on record. By granting liberty to work out the relief against Ext.P1 in pending appeal the writ petition is closed. ## WPC No.9649 of 2019 The petitioner challenges Exts.P1 and P4 to the extent of levying and demanding interest for alleged delayed payment of employees provident fund. Ext.P4 is an order made under Section 7Q of the Act. 2. The petitioner challenges Ext.P1 and Ext.P4 orders levying WPC Nos.8934 & 9649 of 2019 4 interest as completely violative of principles of natural justice and at no stage, the petitioner is heard by the respondents. The respondent if affords an opportunity to petitioner, the petitioner could have pointed out the omissions in erroneous interest calculation and exact amount due and payable by the petitioner under Section 7Q could have been determined. The counsel submits that the order under Section 7Q is not an appealable order. Therefore the writ petition is filed. 3. Mr.R.Sunil Kumar substantially re-iterates the ground raised in the writ petition and in support of his contention that the petitioner is entitled for hearing an opportunity before Ext.P4 order is made relies on the decision of the Apex Court in Arcot Textile Mills Limited v Regional Provident Fund Commissioner and others[1] . He relies on the following paragraph: Regard being had to the discussions made and the law stated in the field, we are of the considered opinion that natural justice has many facets. Sometimes the said doctrine applied in a broad way, sometimes in a limited or narrow manner. Therefore, there has to be a limited enquiry only to the realm of computation which is statutorily provided regard being had to the range of delay. Beyond that nothing is permissible. We are disposed to think so, for when an independent order is passed making a demand, the employer cannot be totally remediless and would have no right even to file an objection pertaining to computation. 1 (2013) 16 SCC 1 WPC Nos.8934 & 9649 of 2019 5 Hence, we hold that an objection can be filed challenging the computation in a limited spectrum which shall be dealt with in a summary manner by the competent authority.” 4. He prays for setting aside Ext.P4 and an opportunity of hearing is provided to the petitioner. Sri Joy Thattil Ittoop appearing for the respondent objects to the maintainability of writ petition and according to him, Section 7Q obligated the employer to pay simple interest at 12% per annum from the date on which the amount has become due till the date of its actual payment. The consideration of interest is now substantially computerised all the dates which are legally entitled to be excluded are excluded and the period is exactly arrived at by the system driven process. While answering the contention that the calculation of interest does not give effect to the date on which interest is paid or it does not exclude the date on which the provident fund ought to have been paid. He submits that the statement is generated by the computer system and there won't be a mistake at all. Even if an omission exists does not warrant judicial review under Article 226 of the Constitution of India. According to him, the delayed payment is for the period March 2012 to February 2017. The respondent issued several notices which fell flat the petitioner, the petitioner did not give a reply and the petitioner WPC Nos.8934 & 9649 of 2019 6 was constrained to determine the interest payable under Section 7Q. He draws the attention of the Court with considerable force to the stand taken in statement filed by the respondent which reads thus: “Further, the contention as to Ext.P1/summons directing payment of the amount levied as interest u/s 7Q, resulting in denial of an opportunity to show cause against Ext.P1. However, the petitioner was given numerous opportunities to present its objections. Pursuant to Ext.P1/summons, the respondent issued adjournment notice dated 6.8.2018, by registered post, to the petitioner to appear before the respondent on 20.8.2018 for personal hearing. A true copy of the notice dated 6.8.2018 issued by the respondent to the petitioner is produced herewith and marked as Annexure R1(a). True copy of the acknowledgement card signed by the petitioner in respect of Annexure R1(a) is produced herewith and marked as Annexure R1(b). Thereafter, the petitioner by email dated 20.8.2018 sought adjournment of the personal hearing fixed on 20.8.2018. A true copy of the email dated 20.8.2018 issued by the petitioner to the respondent is produced herewith and marked as Annexure R1(c). Accepting the request made by the petitioner, the respondent by notice dated 21.8.2018 issued by registered post fixed the date of personal hearing of the petitioner on 10.9.2018. A true copy of the notice dated 21.8.2018 issued by the respondent to the petitioner is produced herewith and marked as Annexure R1(d). True copy of the acknowledgement card signed by the petitioner in respect of Annexure R1(d) is produced herewith and marked as Annexure R1(e). In response to Annexure R1(d), the petitioner issued letter dated 13.9.2018 stating its inability to attend the personal hearing fixed on 10.9.2018, due to a bandh declared, and enclosed Ext.P3/argument note against S.14B and S.7Q proceedings. A true copy of the letter dated 13.9.2018 issued by the petitioner to the respondent is produced herewith and marked as Annexure R1(f). Thereupon, the respondent issued notice dated 18.9.2018 by registered post to the petitioner for personal hearing on WPC Nos.8934 & 9649 of 2019 7 15.10.2018. A true copy of the notice dated 18.9.2018 issued by the respondent to the petitioner is produced herewith and marked as Annexure R1(g). True copy of the acknowledgement card signed by the petitioner in respect of Annexure R1(g) is produced herewith and marked as Annexure R1(h). Thus, hearing was adjourned from 21.12.2017 to 20.8.2018, 10.9.2018 and finally on 15.10.2018 Exts.P4 and P5 were issued. The petitioner failed to attend all the above hearings. Thus, the petitioner who failed to attend the hearing held towards passing of Ext.P4/order is estopped from contending that it was denied hearing before the issuance of Ext.P4. Further, there is no computational mistake in Ext.P4 as alleged by the petitioner rendering any opportunity to show cause futile.” 5. The attention of the Court is invited to Exts.R1(a) to R1(h). The petitioner in spite of receipt of statement together with Exhibits did not choose to contradict the stand taken in the statement. This Court is in agreement with the objection raised by the learned standing counsel for consideration of an issue by the respondent ought not to be mechanical or monotonous. His contention merit acceptance and further probe into allegation that principle of audi alteram partem is violated is unnecessary. This Court is not persuaded to examine the merits or calculate the period of interest scheduled in the manner in which Mr.R.Sunil Kumar submits. The writ petition fails and accordingly dismissed. No order as to costs. 6. After the result is dictated, Mr.R.Sunil Kumar requests the Court WPC Nos.8934 & 9649 of 2019 8 to grant liberty to petitioner to represent to respondent for grant of instalments. I am persuaded that the petitioner can be given liberty to make such request to the respondent and this Court has no reason to doubt that keeping in view the limited turn over in the petitioner's hand, the respondent considers reasonable and comfortable instalments and such request is disposed of within two weeks from the date of request. Hand over copy in one week. **S.V.BHATTI** **JUDGE** Css/ WPC Nos.8934 & 9649 of 2019 9 ## **APPENDIX OF WP(C) 8934/2019** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF THE ORDER OF THE EMPLOYEES PROVIDENT FUND ORGANISATION DATED 15/10/2018 EXHIBIT P2 COPY OF THE APPEAL MEMORANDUM EXHIBIT P3 COPY OF ACKNOWLEDGEMENT OF EXHIBIT P2 EXHIBIT P4 COPY OF THE STAY PETITION EXHIBIT P5 COPY OF THE LETTER DATED 21/2/2019** WPC Nos.8934 & 9649 of 2019 10 ## **APPENDIX OF WP(C) 9649/2019** **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **COPYOF THE ORDER CUM SUMMONS DATED 13.11.2017 ALONG WITH STATEMENTS.** **EXHIBIT P2 COPY OF THE REPLY DATED 16.12.17.** **EXHIBIT P3 COPY OF THE ARGUMENT NOTES DATED 8.9.18. EXHIBIT P4 COPY OF THE ORDER U/S 7Q DATED 15.10.2018. EXHIBIT P5 COPY OF THE ORDER U/S 14B DATED 15.10.2018. EXHIBIT P6 COPY OF THE MEMORANDUM IN APPEAL 348/18.** RESPONDENT'S ANNEXURES: ANN.R1(a) TRUE COPY OF THE NOTICE DATED 6.8.2018 ISSUED BY THE RESPONDENT TO THE PETITIONER. ANN.R1(b) TRUE COPY OF THE ACKNOWLEDGEMENT CARD SIGNED BY THE PETITIONER IN RESPECT OF ANN.R1(a) ANN.R1(c) TRUE COPY OF THE EMAIL DATED 20.8.2018 ISSUED BY THE EPTITIONER TO THE RESPONDENT. ANN.R1(d) TRUE COPY OF THE NOTICE DATED 21.8.2018 ISSUED BY THE RESPONDENT TO THE PETITIONER. ANN.R1(e) TRUE COPY OF THE ACKNOWLEDGEMENT CARD SIGNED BY THE PETITIONER IN RESPECT OF ANN.R1(d) ANN.R1(f) TRUE COPY OF THE LETTER DATED 13.9.2018 ISSUED BY THE PETITIONER TO THE RESPONDENT. ANN.R1(g) TRUE COPY OF THE NOTICE DATED 18.9.2018 ISSUED BY THE RESPONDENT TO THE PETITIONER. ANN.R1(h) TRUE COPY OF THE ACKNOWLEDGEMENT CARD SIGNED BY THE PETITIONER IN RESPECT OF ANN.R1(g)