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.
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Writ Appeal No.703 of 2010 &
W.P.(C) Nos.9818, 16538, 18204 &
21614 of 2010
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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