IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12019 of 2008(E)
1. THAPOVAN HERITAGE HOME(P)LTD,
... Petitioner
Vs
1. THE ASSISTANT PROVIDENT FUND
... Respondent
For Petitioner :SMT.K.LATHA
For Respondent :SRI.N.N. SUGUNAPALAN, SC, P.F.
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :02/03/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) No. 12019 of 2008
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Dated this the 2nd day of March, 2009
JUDGMENT
The Petitioner is an establishment to which Employees’
Provident Fund and Miscellaneous Provisions Act, 1952 is
applicable. Exhibit P2 is the order passed by the first respondent,
exercising his powers under Section 7A of the Act, holding that
the petitioner is liable to remit an amount of Rs.18,64,821.65/-.
It would appear that on receipt of this order petitioner filed
Exhibit P3, application under section 7B of the Act. That
application was rejected by Exhibit P4 order dated 21/02/2008.
It is challenging this proceedings, this writ petition has been filed
on 7/04/2008.
2. During the pendency of this writ petition, the
petitioner filed Exhibit P6 appeal, Exhibit P6A application for
waiver of pre-deposit, Exhibit P6B for stay and Exhibit P6C for
condoning delay in filing the appeal. It is seen from Exhibit P7,
that the appeal and other applications have been delivered at the
office of the second respondent. At this stage, counsel for the
petitioner confines his prayer for a direction to the additional
W.P.(C) No. 12019/2008
2
second respondent to consider and pass orders on Exhibit P6A
application for waiver, Exhibit P6B for stay and P6C for
condonation of delay in filing the appeal.
3. Standing counsel appearing for the respondents
objected to entertaining the appeal and stay petition contending
that the appeal is highly belated. He points out that in terms of
Section 7(I) of the Act, the appeal is to be filed within 60 days of
the order and maximum period up to which the Tribunal can
condone the delay is further 60 days. It is stated that even if said
period is counted from the date of Exhibit P4, rejecting the
application filed by the petitioner under Section 7B, still the
appeal is hopelessly time barred.
4. Although, the contention raised by counsel for the
petitioner is factually correct, still the fact remains that on receipt
of Exhibit P4 order referred to above, immediately thereafter the
petitioner had approached this Court and this writ petition was
filed. It is during the pendency of this writ petition, realizing that
the appropriate remedy is to approach Tribunal, petitioner has
filed Exhibit P6 appeal along with the applications stated above.
W.P.(C) No. 12019/2008
3
At this stage, it can therefore be taken as a case where the
petitioner was bonafidely prosecuting his remedy before a wrong
forum. If that be so, ends of justice require that appeal should be
treated within time, on that basis the appeal and other
applications should be considered by the additional second
respondent.
In view of this I dispose of this writ petition with the
following directions;
That subject to the petitioner remitting 50% of
amount due under Exhibit P2 within four weeks from
today, and on production of proof before the additional
second respondent, I direct that the additional second
respondent shall consider Exhibit P6 appeal with notice
to petitioner and pass orders thereon.
Petitioner shall produce a copy of this judgment before
additional respondents 1 and 2 for compliance.
ANTONY DOMINIC, JUDGE
scm