P. Harikumar v. Employees Provident Fund Organisation

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 WP(C).No. 32620 of 2011(B) -------------------------- PETITIONER(S): --------------- P.HARIKUMAR, MANAGING DIRECTOR, FUTURE FOUNDATIONS PVT.LTD., C-2, FUTURE HOUSE, TEMPLE ROAD, SASTHAMANGALAM, THIRUVANANTHAPURAM. BY ADV. SMT.A.K.PREETHA RESPONDENT(S): --------------- 1. THE EMPLOYEES PROVIDENT FUND ORGANIZATION, BHAVISHYA NIDHI BHAVAN, PATTOM P.O., TRIVANDRUM-4, REPRESENTED BY THE ASSISTANT PROVIDENT FUND COMMISSIONER, PIN-695 004. 2. REGIONAL PROVIDENT FUND COMMISSIONER, THE EMPLOYEES PROVIDENT FUND ORGANISATION, BHAVISHYA NIDHI BHAVAN, PATTOM P.O., THIRUVANANTHAPURAM-695 004. BY SMT.T.N.GIRIJA, SC, EPF THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 32620/2011 ## APPENDIX ## PETITIONER'S EXHIBITS - EXT.P1 : TRUE COPY OF THE COVERAGE NOTICE DTD.15.6.09 ISSUED BY THE 2ND RESPONDENT. - EXT.P2 : TRUE COPY OF THE LETTER DTD.19.6.2009 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. - EXT.P3 : TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE ENFORCEMENT OFFICER DTD.17.5.2011. - EXT.P4 : TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD.10.8.2011. - EXT.P5 : TRUE COPY OF THE WORK ORDER ISSUED BY THE PETITIONER TO CONTRACTOR SHAJI DTD.5.7.2009. - EXT.P6 : TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD.31.10.2011. - EXT.P7 : TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD.14.11.2011. - EXT.P8 : TRUE COPY OF THE ORDER NO.KR/26007/ENF. 1(4)/2011 DTD.17.11.2011. ## RESPONDENT'S EXHIBITS NIL /True Copy/ vps PA to Judge ## **P.N.RAVINDRAN** , **J.** ## **--------------------------W.P.(C) No. 32620 OF 2011 -------------------------Dated this the 7[th] day of December, 2011** ## **J U D G M E N T** The petitioner, who is the Managing Director of a construction company has filed this writ petition challenging Ext.P8 order dated 17.11.2011 issued by the second respondent under section 7A of Employees Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as 'the Act' for short). By that order the second respondent held that the petitioner's establishment is liable to be covered with effect from 1.4.2005 and directed the petitioner to pay the sum of Rs.4,62,896/- under various heads by way of contribution to the Employees Provident Fund Organisation. 2. Ext.P8 order was passed on 17.11.2011 in exercise of the power conferred on the second respondent under section 7-A of the Act. Under section 7-I of the Act, an appeal lies from the said order to the Employees Provident Fund Appellate Tribunal. The period of limitation prescribed for filing an appeal is 60 days from the date of the order. The Appellate Tribunal is also empowered to condone the delay, if any, in filing the appeal subject to an outer limit of 60 days. In the instant case, the period of limitation for filing the appeal has not yet expired. The Appellate Tribunal is also empowered to grant WPC No.32620/2011 2 an order of stay and also to waive the condition regarding pre-deposit, if adequate grounds are made out. Such being the situation, I am of the opinion that the petitioner should pursue the appellate remedy available to him instead of straight away invoking the jurisdiction of this Court. 3. The learned counsel for the petitioner however submitted that though the period of limitation prescribed for filing the appeal has not yet expired, the respondents are likely to enforce Ext.P8 order and therefore, the writ petition may be disposed of reserving liberty with the petitioner to challenge Ext.P8 in appeal but with a direction to the respondents to refrain from taking steps to enforce Ext.P8 order until such time as the period of limitation prescribed for filing the appeal expires. The learned counsel appearing for the Employees Provident Fund Organisation submitted that as the petitioner has an alternate remedy by way of appeal, the petitioner cannot challenge Ext.P8 in this Court or seek to interdict the respondents from enforcing Ext.P8 order on the ground that the period of limitation prescribed for filing an appeal has not expired. 4. Section 7-I of the Act confers on the petitioner the right to file an appeal challenging Ext.P8. Though under section 7-O of the Act every appeal has to be accompanied by a pre-deposit of 75% of the WPC No.32620/2011 3 amount assessed, the Appellate Tribunal is empowered to waive the condition regarding pre-deposit either wholly or partly. It is also empowered to stay recovery pursuant to the order appealed against. Ext.P8 order was passed on 31.10.2011. It was despatched for communication to the petitioner on 17.11.2011. The petitioner has stated that he received it only on 9.11.2011. Though section 7-I of the Act stipulates that the period of limitation prescribed for filing an appeal is 60 days from the date of the order, in the light of the authoritative pronouncement of the Apex Court in **D.Saibaba v. Bar** **Council of India and Another (2003 (6) SCC 186)** period of limitation has to be computed from the date on which the appellant had constructive or actual knowledge of the order appealed against. The Apex Court held that if an order is passed and kept in the file without it being communicated to the person aggrieved by the order and the period of limitation is allowed to expire, it will result in manifest injustice. Ext.P8 order was admittedly not passed in the petitioner's presence. It can therefore be held that the period of limitation prescribed for filing the appeal will begin to run only from the date on which Ext.P8 order was served on the petitioner. 5. That takes me to the question whether the respondents are entitled to enforce with Ext.P8 order even before an appeal and an WPC No.32620/2011 4 application for waiver of the pre-deposit are filed before the Appellate Tribunal. Though the learned counsel for the respondents contended that the mere filing of an appeal will not operate as stay of the order appealed against and as in the instant case the petitioner has not filed an appeal, no order staying recovery pursuant to Ext.P8 order can be passed, I am of the opinion that the said contention is without any merit. Though under section 7-O of the Act the appellant is required to deposit 75% of the amount assessed as a condition for maintainability of the appeal, the Appellate Tribunal is entitled to dispense with the pre-deposit either wholly or in part. That right of the Appellate Tribunal cannot in my opinion be rendered illusory and meaningless by executing the order even before the period of limitation prescribed for filing the appeal expires. The right conferred by the Parliament on a party aggrieved by the order passed under the Act to file an appeal and seek waiver of pre-deposit cannot be defeated even before the period of limitation expires by enforcing compliance with the order by resort to sections 8-A to 8-G of the Act. Such being the situation, I am of the opinion that the petitioner is entitled to an order keeping Ext.P8 in abeyance for a period of 60 days from the date on which it was communicated to him so as to enable him to move the Appellate Tribunal and seek appropriate interim orders. WPC No.32620/2011 5 I accordingly dispose of the writ petition with a direction to the respondents to wait for the expiry of the period of 60 days from the date on which Ext.P8 order was communicated to the petitioner before proceeding to enforce Ext.P8. The petitioner shall in the meanwhile move the Appellate Tribunal and seek appropriate interim orders. **P.N.RAVINDRAN, (JUDGE)** vps WPC No.32620/2011 6