IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18742 of 2010(P)
1. THE PURATHUR SERVICE CO-OPERATIVE
... Petitioner
Vs
1. THE ASSISTANT PROVIDENT FUND
... Respondent
2. THE EMPLOYEES PROVIDENT FUND APPELLATE
For Petitioner :SRI.M.SASINDRAN
For Respondent :SRI.THOMAS MATHEW NELLIMOOTTIL,SC, P.F.
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :18/06/2010
O R D E R
K.SURENDRA MOHAN, J.
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W.P.(C) No.18742 of 2010
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Dated this the 18th of June, 2010
JUDGMENT
The petitioner is a Co-operative Society registered under
the provisions of the Kerala Co-operative Societies Act,
1969. The petitioner is a covered establishment under the
provisions of the Employees Provident Funds And
Miscellaneous Provisions Act. According to the petitioner,
they have been remitting contributions in respect of all their
employees. However, in spite of that a notice under Section
7A was issued by the first respondent alleging that the
Society had failed to remit contributions in respect of three
persons. According to the petitioner, they are persons who
were engaged by another establishment by name National
Security Service Society, Kottakkal and that they are not
employees of the petitioner Society. The establishment
mentioned above was supplying security personnel for the
petitioner. It is the case of the petitioner that, without
considering the contentions raised, an order has been
passed demanding contributions in respect of the disputed
three persons, as per Ext.P4.
2. The petitioner has challenged Ext.P4 in appeal
before the second respondent, which is Ext.P5. According to
wpc No.18742/2010 2
the petitioner, Ext.P5 contains a prayer for stay of Ext.P4
also. However, no orders have been passed on either the
appeal or the stay petition, till date. While so, the petitioner
has been served with Ext.P6 notice by which, the
contribution assessed as per Ext.P4 is demanded by the first
respondent failing which, coercive steps are threatened to
be initiated. According to the petitioner, since the appeal
Ext.P5 is pending consideration of the second respondent,
issue of Ext.P6 proceedings is without any justification. The
petitioner, therefore, prays for the issue of appropriate
directions to keep the coercive proceedings in abeyance till
the disposal of the appeal.
3. Adv.Thomas Mathew Nellimoottil who appears for
the first respondent stoutly opposes the prayer of the
petitioner pointing out that the petitioner does not have any
case even on the merits and therefore, the pendency of the
appeal need not detain the recovery of the amount that is
demanded. According to the counsel, it would take years for
the appeal to be heard and finally disposed of and therefore
he opposes the grant of any interim order in favour of the
petitioner. I have considered the rival contentions raised.
wpc No.18742/2010 3
4. Section 7-I of the Employees’ Provident Funds &
Miscellaneous Provisions Act, 1952 (the ‘Act’ for short)
provides a statutory right of appeal to a person aggrieved by
an order passed under Section 7A of the Act. The petitioner
has availed of the above statutory remedy. The petitioner
has also moved the said Tribunal for an interim order of stay
of the order appealed against. Section 7-O stipulates deposit
of 75% of the amount that has been determined as a
condition for entertaining the appeal. Therefore, sufficient
provision has been made to safe guard the interests of both
the petitioner as well as the Employees Provident Fund
Organization, during the interregnum that the appeal would
remain pending, if the same is taken on file. Since the
petitioner has already moved the second respondent
Tribunal, which is the proper authority to decide on the
correctness of the order passed under Section 7A, I do not
think it necessary to consider the merits of the case pleaded
by the petitioner. In view of the fact that a statutory right of
appeal has been provided, the issue of Ext.P6 at this point of
time is unwarranted. Recovery of the amounts demanded in
Ext.P6 can be made after the petitioner exhausts his
wpc No.18742/2010 4
statutory remedy. Since the Tribunal has ample powers to
order the deposit of a portion of the amount assessed, if it is
found necessary so to do, it is sufficient that the matter is
left to the discretion of the Tribunal. In view of the above, it
is sufficient that the recovery of the amount assessed under
Section 7A is kept in abeyance till the stay petition filed by
the petitioner is considered and disposed of by the second
respondent-Tribunal.
This Writ Petition is accordingly disposed of directing
that all coercive proceedings to recover the amounts
determined under Section 7A of the Act as per Ext.P4
including Ext.P6 from the petitioner, shall be kept in
abeyance till the second respondent Tribunal passes final
orders on the stay petition filed by the petitioner. The
second respondent shall make every endeavour to consider
and pass orders on the stay petition expeditiously.
K.SURENDRA MOHAN,
JUDGE
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