High Court Kerala High Court

The Regional Provident Fund vs The Kerala State Cashew … on 26 November, 2010

Kerala High Court
The Regional Provident Fund vs The Kerala State Cashew … on 26 November, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 703 of 2010()


1. THE REGIONAL PROVIDENT FUND
                      ...  Petitioner

                        Vs



1. THE KERALA STATE CASHEW DEVELOPMENT
                       ...       Respondent

2. THE EMPLOYEES PROVIDENT FUND

                For Petitioner  :SRI.PIRAPPANCODE V.S.SUDHIR

                For Respondent  : No Appearance

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice B.P.RAY

 Dated :26/11/2010

 O R D E R
                   C.N.RAMACHANDRAN NAIR &
                      BHABANI PRASAD RAY, JJ.
              ....................................................................
                      Writ Appeal No.703 of 2010 &
                  W.P.(C) Nos.9818, 16538, 18204 &
                                    21614 of 2010
              ....................................................................
             Dated this the 26th day of November, 2010.

                                     JUDGMENT

Ramachandran Nair, J.

The dispute between the parties pertains to the demand of

Provident Fund contribution by the Regional Provident Fund

Commissioner from the Kerala State Cashew Development Corporation

which is a Government undertaking. There is dispute as to whether the

employees in respect of whom demand is made are regular employees

or trainees. This is a factual position which the Tribunal is free to go

into and decide in the appeals filed by the Corporation. In between the

Corporation approached this court challenging the orders of the

Tribunal directing payment of 40% as a condition for maintainability of

appeal as provided under proviso to Section 7(O) of the Employees

Provident Funds and Miscellaneous Provisions Act. The learned

Single Judge vacated the order of the Tribunal holding that Tribunal is

bound to give reasons in support of order issued under proviso to

W.A. 703/10 & conn. 2

Section 7(O). The judgment of the learned Single Judge remanding the

matter back to the Tribunal is under challenge in the Writ Appeal filed

by the Regional Provident Fund Commissioner. We do not find any

merit in the Writ Appeal because admittedly the order issued by the

Tribunal directing payment of 40% is not supported by any reasons.

In fact, proviso makes it very clear that an order dispensing with

payment in part or full should be passed only based on reasons. An

order issued by the Tribunal could be challenged by both parties for the

reason that it is not supported by any reasons. Senior counsel

appearing for the Corporation today produced before us order dated

23.6.2010 passed by the Tribunal dispensing with full payment which

means that appeal is maintainable without pre-deposit of the amount

demanded. It is seen from the Tribunal’s order that Tribunal has

followed the judgment of the Supreme Court and has also considered

the financial position of the Corporation which is not even able to clear

the gratuity liability due to retired employees. If the statement of the

Tribunal with regard to the financial position of the Corporation is

correct, then the order of the Tribunal issued pursuant to judgment of

this court on 23.6.2010 is perfectly tenable. We, therefore, find no

merit in the Writ Appeal and the same is dismissed.

W.A. 703/10 & conn. 3

2. So far as the W.P.(C)s are concerned, the reasons stated by the

Tribunal in their order dated 23.6.2010 are sufficient to entitle the

Corporation to get full waiver of payment of Provident Fund arrears

demanded which is under contest in appeals pending before the

Tribunal. We, therefore, dispose of the writ petitions by waiving the

condition for deposit of the Provident Fund arrears demanded for

maintainability of appeals with direction to the Tribunal to dispose of

all the appeals after hearing both sides and after perusing records and if

necessary, after taking evidence at the earliest and in any case within a

period of four months from today. The Corporation’s claim for refund

also cannot be granted because of the huge demand outstanding against

it. Therefore, the claim for refund by the Corporation will be

considered after Tribunal passes final orders in the matter.

C.N.RAMACHANDRAN NAIR
Judge

BHABANI PRASAD RAY
Judge

pms