Employees' Provident Fund Organization v Panthaloor Plantation Pvt. Ltd., BhadrA Estate and Industries Ltd., Balanoor Plantation and Industries Ltd. (WA Nos. 1555/2018, 1657/2018, 1661/2018)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR** **WEDNESDAY, THE 22[ND] DAY OF NOVEMBER 2023/1ST AGRAHAYANA, 1945** **WA NO.1555 OF 2018 JUDGMENT IN WPC 16267/2011 OF HIGH COURT OF KERALA DATED 4.8.2017** **--------------------** ## **- APPELLANT/1ST RESPONDENT :** EMPLOYEES PROVIDENT FUND ORGANIZATION REPRESENTED BY ASSISTANT PROVIDENT FUND COMMISSIONER (COMPLIANCE DIVISION), BHAVISHYANIDHI, P.B.NO.1806, ERANHIPALAM P.O., KOZHIKODE-673 006. BY ADV DR.ABRAHAM P.MEACHINKARA, SC ## **- RESPONDENTS/PETITIONER/RESPONDENTS :** 1 M/S.PANTHALOOR PLANTATION PVT.LTD. BALANOOR PUBBER ESTATE P.B.NO.85, PERINTHALMANNA, MALAPPURAM DISTRICT, KERALA - 679 322, REPRESENTED BY MANAGING DIRECTOR. 2 EMPLOYEES' PROVIDENT FUND APPELLATE TRIBUNAL REP. BY REGISTRAR, SCOPE MINAR, 4TH FLOOR, CORE-II, LAKSHMI NAGAR, NEW DELHI-110 092. 3 THE SECRETARY PLANTATION LABOUR UNION (CITU) PERINTHALMANNA, TALUK, MALAPPURAM DISTRICT, KERALA - 679 322. BY ADVS. SUDHISH P.P.BALAN M.MANJU P.B.SAJITH(K/409/1998) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31.10.2023 ALONG WITH WA Nos.1657/2018 & 1661/2018, THE COURT ON 22.11.2023 DELIVERED THE FOLLOWING: W.A. Nos.1555, 1657 and 1661 of 2018 -: 2 :- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR** **WEDNESDAY, THE 22[ND] DAY OF NOVEMBER 2023/1ST AGRAHAYANA, 1945** **WA NO.1657 OF 2018 JUDGMENT IN WPC 16252/2011 OF HIGH COURT OF KERALA DATED 4.8.2017** **-----------------** ## **- APPELLANT/1ST RESPONDENT :** EMPLOYEES' PROVIDENT FUND ORGANIZATION, REPRESENTED BY ASSISTANT PROVIDENT FUND COMMISSIONER (COMPLIANCE DIVISION), BHAVISHYANIDHI BHAWAN, P.B.No.1806, ERANHIPALAM P.O., KOZHIKODE-673 006. BY ADV DR.ABRAHAM P.MEACHINKARA, SC ## **- RESPONDENTS/PETITIONER/RESPONDENTS :** 1 M/S.BHADRA ESTATE AND INDUSTRIES LTD., P.B.NO.83, PERINTHALMANNA, MALAPPURAM DISTRICT, KERALA - 679 322. 2 EMPLOYEES' PROVIDENT FUND APPELLATE TRIBUNAL, REPRESENTED BY REGISTRAR, SCOPE MINAR, 4TH FLOOR, CORE-II, LAKSHMI NAGAR, NEW DELHI-110 092. 3 THE SECRETARY, PLANTATION LABOUR UNION (CITU), PERINTHALMANNA, TALUK, MALAPPURAM DISTRICT, KERALA-679 322. BY ADVS. SUDHISH SMT.M.MANJU SRI.P.P.BALAN P.B.SAJITH(K/409/1998) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31.10.2023 ALONG WITH WA Nos.1555/2018 & 1661/2018, THE COURT ON 22.11.2023 DELIVERED THE FOLLOWING: W.A. Nos.1555, 1657 and 1661 of 2018 -: 3 :- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR WEDNESDAY, THE 22[ND] DAY OF NOVEMBER 2023/1ST AGRAHAYANA, 1945** **WA NO.1661 OF 2018 JUDGMENT IN WPC 16263/2011 OF HIGH COURT OF KERALA DATED 4.8.2017** **----------------** ## **- APPELLANT/1ST RESPONDENT :** EMPLOYEES' PROVIDENT FUND ORGANISATION REPRESENTED BY ITS ASSISTANT PROVIDENT FUND COMMISSIONER (COMPLIANCE DIVISION), BHAVISHYANIDHI, P.B.NO.1806, ERANHIPALAM P.O., KOZHIKODE - 673 006. BY ADV DR.ABRAHAM P.MEACHINKARA, SC ## **- RESPONDENTS/PETITIONER/RESPONDENTS :** 1 M/S.BALANOOR PLANTATION AND INDUSTRIES LTD BALANOOR RUBBER ESTATE, P.B.NO.79, PERINTHALMANNA, MALAPPURAM DISTRICT, KERALA - 679 322. 2 EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL REP. BY REGISTRAR, SCOPE MINAR, 4TH FLOOR, CORE - II, LAKSHMI NAGAR, NEW DELHI - 110 092. 3 THE SECRETARY PLANTATION LABOUR UNION (CITU), PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, KERALA - 679 322. BY ADVS. SUDHISH SRI.P.P.BALAN SMT.M.MANJU P.B.SAJITH(K/409/1998) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31.10.2023, ALONG WITH WA Nos.1555/2018 & 1657/2018, THE COURT ON 22.11.2023 DELIVERED THE FOLLOWING: W.A. Nos.1555, 1657 and 1661 of 2018 -: 4 :- **ANU SIVARAMAN, J. & C. PRATHEEP KUMAR, J. ----------------------------------------------------------------------W.A. Nos.1555, 1657 and 1661 of 2018 ----------------------------------------------------------Dated this the 22[nd] day of November, 2023** ## **JUDGMENT** ## **Anu Sivaraman, J.** These Writ Appeals are filed against the common judgment of the learned Single Judge, by which, the writ petitions filed by the employer Organisation against orders of determination under Section 7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (for short, 'the EPF&MP Act') as also the order dismissing the appeal preferred by them were allowed. 2. The only issue which requires consideration is whether the finding of the learned Single Judge that the Unions which made complaints before the primary authority had not discharged their initial burden of proving that the employees had been engaged on the dates as claimed by them is justified. The learned Single Judge, after considering the orders passed by the primary and appellate authorities under the Act, came to the conclusion that the initial burden of proving that the employees had been engaged from the dates W.A. Nos.1555, 1657 and 1661 of 2018 ## -: 5 :- as claimed by the Union was on the Union themselves and that such burden had not been discharged by them. The primary authority as well as the appellate authority stated that a list had been produced by the Union and that since the establishments had not produced evidence to show the dates on which the employees were engaged, the dates claimed by the Union were liable to be accepted. The learned Single Judge found that the said assumption arrived at by the primary authority and accepted by the appellate authority was completely improper since there was nothing on record, documentary or otherwise, to support the contention of the Union that the employees had been engaged from the dates as mentioned. ## 3. Section 7A of the EPF&MP Act reads as follows :- - **“7-A. Determination of moneys due from employers.** (1) The Central Provident Fund Commissioner, any Additional Central Provident Fund Commissioner, any Deputy provident Fund Commissioner, any Regional Provident Fund Commissioner or any Assistant Provident Fund Commissioner, may, by order,- (a) in a case where a dispute arises regarding the applicability of this Act to an establishment, decide such dispute; and (b) determine the amount due from any employer under any provision of this Act, the Scheme or the Pension Scheme or W.A. Nos.1555, 1657 and 1661 of 2018 -: 6 :- the Insurance Scheme, as the case may be, and for any of the aforesaid purposes may conduct such inquiry as he may deem necessary. (2) The officer conducting the inquiry under sub-section (1) shall, for the purposes of such inquiry, have the same powers as are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), for trying a suit in respect of the following matters, namely- (a) enforcing the attendance of any person or examining him on oath; - (b) requiring the discovery and production of documents; (c) receiving evidence on affidavit; (d) issuing commissions for the examination of witnesses; and any such inquiry shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code (45 of 1860). (3) No order shall be made under sub-section (1), unless the employer concerned is given a reasonable opportunity of representing his case. (3-A) Where the employer, employee or any other person required to attend the inquiry under sub-section (1) fails to attend such inquiry without assigning any valid reason or fails to produce any document or to file any report or return when called upon to do so, the officer conducting the inquiry may decide the applicability of the Act or determine the amount due from any employer, as the case may be, on the basis of the evidence adduced during such inquiry and other documents available on record. (4) Where an order under sub-section (1) is passed against an employer _ex parte,_ he may, within three months from the date of communication of such order, apply to the officer for setting aside such order and if he satisfies the officer that the show-cause notice was not duly served or that he was prevented W.A. Nos.1555, 1657 and 1661 of 2018 ## -: 7 :- by any sufficient cause from appearing when the inquiry was held, the officer shall make an order setting aside his earlier order and shall appoint a date for proceeding with the inquiry: Provided that no such order shall be set aside merely on the ground that there has been an irregularity in the service of the show-cause notice if the officer is satisfied that the employer had notice of the date of hearing and had sufficient time to appear before the officer. _Explanation.-_ Where an appeal has been preferred under this Act against an order passed _ex parte_ and such appeal has been disposed of otherwise than on the ground that the appellant has withdrawn the appeal, no application shall lie under this subsection for setting aside the _ex parte_ order. (5) No order passed under this section shall be set aside on any application under sub-section (4) unless notice thereof has been served on the opposite party.” Para.26-B of the Employees Provident Funds Scheme, 1952 reads as follows :- **“26-B. Resolution of doubts** .- If any question arises as to whether an employee is entitled to, or required to become, or continue as, a member, or as to the date from which he is so entitled or required to become a member, the same shall be referred to the Regional provident Fund Commissioner who shall decide the same: Provided that both the employer and the employee shall be heard before passing any order in the matter.” Therefore, it was essentially for the appellant to consider the dispute as to when the employees were eligible to be enrolled W.A. Nos.1555, 1657 and 1661 of 2018 ## -: 8 :- as members of the Employees Provident Fund. Consequently, the question as to the date from which the employees were continuously working ought to have been decided by the primary authority. However, no material was placed on record by the Unions. No oral evidence was also let in, in support of the contention. Therefore, the learned Single Judge held that the Unions had not discharged the initial burden to show that the employees had been engaged on the dates as mentioned by them. 4. The learned counsel for the appellant places reliance on the judgment of the Bombay High Court in **Union of India and another** v. **Ogale Glass Works** [1971 (2) SCC 678], the judgment of this Court in **Kunhipaly** v. **Regional Provident Fund Commissioner, Trivandrum and others** [1966 (1) LLJ 642], the judgments of the High Court of Delhi in **Laksmi Restaurant and ors.** v. **The Regional Provident Funds Commissioner, Delhi and ors.** [MANU/DE/0222/1974] and in **Harish Chander Narula and others** v. **Regional Provident Fund Commissioner and another** [2003-II-LLJ 1131 Delhi] as also the judgment of the High Court of Madras in **M.R.F.** W.A. Nos.1555, 1657 and 1661 of 2018 -: 9 :- **Ltd.** v. **The Presiding Officer, EPF Appellate Tribunal** [MANU/TN/4667/2011]. 5. On a consideration of the provisions of the statute referred to as also the decision relied on, we find no reason to hold that the finding of the learned Single Judge with regard to the initial burden of proof was erroneous. The question of the applicability of the Scheme does not arise in the instant case. The only question which was raised in the Writ Petition was with regard to acceptance of the dates from which the employees were working on the mere _ipse dixit_ of the Unions. The employer having raised a specific contention that the employees were engaged only from 1.4.2006, it was for the Unions, which had claimed earlier dates of engagement, to have adduced some evidence or produced material to show the dates of such earlier engagement. No such effort was made. It was in those circumstances that the learned Single Judge held that the initial burden of proof was not discharged. 6. Having considered the contentions advanced and in the light of the provisions of Section 7A of the EPF&MP Act and Para.26-B of the Employees Provident Funds Scheme, we W.A. Nos.1555, 1657 and 1661 of 2018 -: 10 :- are of the opinion that the finding of the learned Single Judge that the employees had not succeeded in discharging the initial burden of proof with regard to their dates of engagement is fully justified. In the above view of the matter, we find no ground to interfere with the judgment of the learned Single Judge in this intra court appeal. The Writ Appeals fail and the same are, accordingly, dismissed. **Sd/ANU SIVARAMAN** **JUDGE** **Sd/C. PRATHEEP KUMAR JUDGE** Jvt/8.11.2023