M/S Kerala State Industrial Enterprises Limited v Regional Provident Fund Commissioner, Employees' Provident Fund Organisation, Sub-Regional Officer, Kochi; Employees' Provident Fund Organisation, Sub-Regional Officer, Kochi; M/S Grey Matter

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 30TH DAY OF MAY 2017/9TH JYAISHTA, 1939** **WP(C).No. 17073 of 2017 (H)** **----------------------------** ## **PETITIONER(S):** **-----------------------** **M/S. KERALA STATE INDUSTRIAL ENTERPRISES LIMITED, ST. JOSEPH'S PRESS BUILDING, COTTON HILL, VAZHUTHACAUD, THIRUVANANTHAPURAM, KERALA, INDIA, PIN-695 014, REPRESENTED BY ITS GENERAL MANAGER, MR.JOSEMON M.D.** **BY SRI.E.K.NANDAKUMAR, SENIOR ADVOCATE. ADVS. SRI.M.GOPIKRISHNAN NAMBIAR,** **SRI.P.GOPINATH, SRI.K.JOHN MATHAI, SRI.JOSON MANAVALAN, SRI.KURYAN THOMAS, SRI.PAULOSE C. ABRAHAM.** ## **RESPONDENT(S):** ## **--------------------------** **1. REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES' PROVIDENT FUND ORGANISATION, SUB-REGIONAL OFFICER, 36/685A, BHAVISHYANIDHI BHAVAN, KALOOR, KOCHI-682 017.** **2. EMPLOYEES' PROVIDENT FUND ORGANISATION, SUB-REGIONAL OFFICER, 36/685A, BHAVISHYANIDHI BHAVAN, KALOOR, KOCHI-682 017.** **3. M/S. GREY MATTER, 1ST FLOOR, YULETIDE BUILDING, PROVIDENCE ROAD, NORTH END, KACHERIPADY, KOCHI-682 018.** **R1 & R2 BY DR.S.GOPAKUMARAN NAIR, SENIOR SC. SRI.S.PRASANTH, SC.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 17073 of 2017 (H)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXHIBIT P1 A TRUE COPY OF THE STATEMENT DATED 22.03.2017 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 01.05.2017 ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT.** **EXHIBIT P3 A TRUE COPY OF THE LETTER DATED 23.05.2017 ISSUED BY THE PETITIONER TO THE IST RESPONDENT.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R1A COPY OF THE LETTER DATED 25/07/2011 BEARING NO.LC/4/CIR-JUDGMENT /2011 ISSUED BY THE HEAD OFFICE, EMPLOYEES' PROVIDENT FUND ORGANISATION, NEW DELHI.** **EXT.R1B COPY OF THE JUDGMENT DATED 03/06/2015 OF THIS HON'BLE COURT IN W.A. NO.294/2015.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** rs. ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 17073 of 2017 (H) -----------------------------------------Dated: 30[th] May, 2017 ## **J U D G M E N T** The petitioner has filed the above writ petition on the apprehension that proceedings for recovery would be taken as per Ext.P2; frustrating the remedy in appeal. 2. The learned Counsel for the respondent had specifically pointed out that there are no proceedings taken as of now, but, however, was not willing to undertake on behalf of the respondent that proceedings will not be taken till the appeal period is over. The respondent, hence, was directed to file an affidavit as to the further course intended; which is placed on record. 3. The impugned order is dated 12.05.2017 and communicated to the petitioner on 16.05.2017. The ## **W.P.(C) No. 17073/2017** **-2-** petitioner has 60 days' time to file an appeal and then a further period of 60 days; with an application for condonation of delay. 4. In similar circumstances, when another assessee was proceeded for recovery by attachment of bank accounts, this Court had passed a judgment reported in **Popular Industries (Pynadath Crusher) v. Assistant Provident Fund Commissioner & Recovery Officer - 2014 (4) KLT 538** , wherein, it was directed that the statutory authorities would do well to keep in abeyance the recovery proceedings till the statutory period of appeal is over. 5. An appeal was filed with delay before a Division Bench against the said judgment which was disposed of by Ext.R1B. The Division Bench refused to interfere with the judgment passed, but, reserved liberty in exceptional cases to proceed for recovery, **-3-** ## **W.P.(C) No. 17073/2017** even during the statutory period, which was also the tenor of the judgment passed by this Court in **2014 (4) KLT 538** (supra). The Division Bench also observed so in para 8: “8. In the above circumstance, this Court does not find it as a fit case to call for interference. While making it clear that nothing prevents the authority concerned in proceeding with further steps, once an order is passed even during the period of appeal, it may not be prudent to proceed with such steps by virtue of the rights available to the parties concerned under the Statute. The course and proceedings being pursued without any regard to the same will only contribute to further litigations, unnecessarily. Further steps to be pursued by the Department have to be on the basis of proper application of mind. In other words, it shall only be by way of prudent steps. If any such **-4-** ## **W.P.(C) No. 17073/2017** adverse circumstance is resulted and ultimately, the department loses the case, they may be liable to compensate the loss that has been caused/resulted to the aggrieved party. This is more so, in view of the fundamental principle, that cost shall follow the cause.” 6. In the present case, the submission of the learned Counsel for the respondent is that the petitioner could very well approach the statutory Tribunal and since 75% deposit is a pre-condition for maintaining an appeal, the petitioner could, as well, be directed to make the said deposit in the above proceeding. This is without prejudice to the argument that they are entitled to recover the amount even during the statutory period. 7. Despite the assertion made across the bar as to the right to recover even during the period prescribed for appeal, there is nothing stated in the ## **W.P.(C) No. 17073/2017** **-5-** counter affidavit as to the exceptional circumstance in the present case for proceeding for recovery of the amounts due, even within the statutory period of appeal. There is also no apprehension expressed as to the attempt of the petitioner to transfer the assets or do any other act to defeat the recovery. It is pertinent too, that the petitioner is a Government Company and there was a specific intimation given to the respondent, by Ext.P3, of the intention of the petitioner to file an appeal. 8. Since the period for filing an appeal is not yet over, there is no reason why there should be a recovery at this stage. The petitioner also states that there is a move to confer authority on the Industrial Tribunals to consider and hear appeals under the Employees' Provident Funds and Miscellaneous Provisions Act, ## **W.P.(C) No. 17073/2017** **-6-** 1952 (for brevity, 'EPF & MP Act') and there is a slight confusion as to the appellate authority. 9. The learned Counsel for the respondent Organization admitted that the Tribunal constituted specifically under the EPF & MP Act is not hearing cases, but is accepting appeals to save limitation. The petitioner, hence, would not be proceeded against for recovery till the appeal or stay petition is considered by the Tribunal, whichever is earlier. It is made clear that this Court has not looked at the merits of the matter and this order need not be taken as a prima facie consideration of waiver of pre-deposit. The writ petition is disposed of. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 30/5/17