IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 WP(C).No. 23690 of 2005(T) -------------------------------------- PETITIONER: ------------------- THE FERTILISERS & CHEMICALS TRAVANCORE LTD., UDYOGAMANDAL-683 501, REPRESENTED BY ITS CHIEF MANAGER (PERSONNEL), MATHEW GEORGE. BY SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE, ADVS. SRI.E.K.NANDAKUMAR, SRI.A.K.JAYASANKAR NAMBIAR, SMT.PRIYA MAHESH. RESPONDENTS: ------------------------ 1. THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, 60, SKYLARK BUILDING, 7TH FLOOR, NEHRU PLACE, NEW DELHI-110 019. 2. THE REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION,SUB REGIONAL OFFICE, KALOOR, KOCHI-682 017. 3. THE SECRETARY, UDYOGAMANDAL LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD (E 289), UDYOGAMANDAL – 683 501. 4. FACT CONTRACT PAINTING LABOUR UNION, UDYOGAMANDAL, REPRESENTED BY ITS SECRETARY. 5. FACT PAINTING THOZHILALI UNION (INTUC), UDYOGAMANDAL, REPRESENTED BY ITS SECRETARY. 6. UDYOGAMANDAL CONTRACT WORKERS UNION (BMS), UDYOGAMANDAL, REPRESENTED BY ITS SECRETARY. 7. CONSTRUCTION AND CONTRACT WORKERS UNION (CITU), UDYOGAMANDAL, REPRESENTED BY ITS SECRETARY. W.P.(C). NO.23690/2005-T: 8. MR. A.K. SUKUMARAN, ENRRIYALIPARAMBIL, ALANGAD.P.O., THIRUVALLOOR. 9. MR. DAVIS ABRAHAM, KAITHARATH, CHERANALLOOR. 10. MR. ANTONY.K.P., KALATHIPARAMBIL, MANJUMMAL, UDYOGAMANDAL.P.O. 11. MR. MOHAMMED.K.S., KOOTTUMGAL, UDYOGAMANDAL.P.O. 12. MR. HASSAN.M.B., THAZHATHUVEEDU, EDAYAPPURAM, ALUVA. 13. MR. SIKIDAS.T.R., THOTTAYAPPILLY, MOORIKKODE.P.O. 14. KUNJUPENNU, W/O. VALLON KUNJAN BHAVAN, PALLIPPURAM CHALIL, UDYOGAMANDAL. 15. ALLAY THEVAN, PARACKAL, UDYOGAMANDAL. 16. SUBHADRA.K.A., W/O. SREEDHARAN, KAITHAVALAPPIL, MANJUMMAL, UDYOGAMANDAL.P.O. 17. K.G. SARASAMMA, D/O. NARAYANAN NAIR, LAKSHAM VEEDU, ERAMAM, MUPPATHADAM, ALUVA. 18. K.K. GOPALAN, S/O. KRISHNAN, KANNVILLY PADATH, VALAN SOUTH, CHITTOOR.P.O. 19. M.V. SHANMUGHAN, THOPPIL HOUSE, PONEKKARAN, ELAMAKKARA.P.O. W.P.(C). NO.23690/2005-T: 20. M.V. JOSEPH, MATHIRAPPILLY HOUSE, SOUTH CHITTOOR.P.O., KOCHI. 21. MR. V.J. JOHN, VALIYAPARAMBIL HOUSE, SOUTH CHITTOOR.P.O., KOCHI. 22. MR. P.M. GEORGE, PUTHANGADY, CHIRAKKAKARA, VARAPPUZHA. 23. MR. A.P. RAJU, ALATHIRI HOUSE, CHERANALLOOR, VIA. EDAPPILLY. 24. MR. V.K. OMANAKUTTAN, VARATTUKUZHY HOUSE, VALLUVALLY, KOONAMMAVU.P.O. 25. MR. K.I. ANTONY, KURAPATH HOUSE, KARINGANTHURATHU, KONGERPILLY.P.O. 26. MR. P.R. SADANANDAN, PARAYIL HOUSE, KUTHUKAD, VADAKKUMPURAM. 27. MR. P. PREETHAMBARAN, USHA BHAVAN, MUPPATHADAM, ALUVA. 28. MR. V.T. THANKAMMA, PUTHUKKAD HOUSE, KAITHARAM, N. PARAVUR. 29. V.E. GOPALAN, KIZHAKKAPPEDIKKAPILLY, TRIPUNITHURA. 30. K.N. BAHULEYAN, ESI NO.1129306, KOZHIKAPARAMBIL, KARITHODAM, MALIPPURAM – 682 511. 31. P.V. VIDIA SAGAR, ESI NO. 32902, PULPRATTAZHAM, CHERANALLOOR, EDAPPALLY, COCHIN-34. 32. V.S. CHANDRAN, ESI NO.1077227, VENATT HOUSE, CHERANALLOOR, EDAPPALLY, COCHIN-34. W.P.(C). NO.23690/2005-T: 33. V.J. GEORGE, VARIATHU HOUSE, ESI NO.534520, PF 31879, CHERANALLOOR, COCHIN – 34. 34. M.C. ITTOOP, ESI NO. 54967648, KANGAPARAMBU, CHALAKULAM, ARAKAPADI. 35. P.A. IBRAHIM, ESI NO.943712, KANGAPARAMBU, CHALAKULAM, ARAKAPADI. 36. C.P. LEELA, ESI NO.943712, CHETTIARIKAL, VEMBILLY, KIZHAKAMBALAM. 37. P.V. ANNAKUTTY, ESI NO.944654, PF 115, POKAMATTAM, PUTTUMANOOR, PUTHENCRUZ. 38. A.V. ANNAMMA, ESI NO.944085, ELLUMALA, VELOOR. 39. SAJU JACOB, ESI NO.967605, PF1349, KATTUVALLIKUDIYIL, MARAMPILLY, ALUVA. 40. V.T. THOMAS, 54-94-1358, VEVUKATTU, THURUTHU, IRUMBANAM. 41. K.A. KUMARAN, 54-967539, KURANGANATTUKARA, KARIMUGAL. 42. P.R. SARADA, MULAPPILLIL HOUSE, PUTTUMANNOOR KARA, PUTHENCRUZ, ESI NO. 943654, PF.NO.362. 43. C.M. ANNAMMA, VATTAKATTIL VEEDU, PUTTUMANOOR KARA, PUTHENCRUZ, ESI NO.944075, P.F. NO. 88. 44. C.A. KURUBA, CHALAKUZHI KAROTA, KARIMUGHAL,PUTHENCRUZ, ESI NO. 943770, PF NO.886. 45. P.K. THANKAMANI, KOTTAKUZHI KAROTA, FACT COLONY, KARIMUGHAL, PUTHENCRUZ, ESI NO.944065, PF NO.84. W.P.(C). NO.23690/2005-T: 46. K.A. KARTHYAYANI, PEEDIYAKKAPARAMBIL, BRAHMAPURAM, ESI NO.944092, PF NO. 72. 47. N.K. KARTHYAYANI, THEKKUMKATTIL, PERINGALA, ESI NO. 944683, PF NO. 853. 48. P.K. ALIKUTTY, KUPPAKKATTU, PERINGALA, ESI NO.944846, PF NO. 1086. 49. K.P. MARY, KIZHAKKAKUNNU, KORAKKALA KARA, KUMARAPURAM, ESI NO. 944751, P.F. 78. 50. JALAJA, KAIPLAN CHERIYIL, ERUMPANAM, ESI NO. 944285, PF. NO.720. 51. C.I. KURIYAKOSE, CHENGANATA VEEDU, VELLOOR KARA, PUTHENCRUZ, ESI NO. 967870, P.F. NO. 85. 52. K.K. KORA, KOTTAPURATHU VEEDU, VALLOOR KARA, PUTHENCRUZ, ESI NO. 1197509, P.F.NO.539. 53. C.B.AMBIKA, MANNAZHATHU PARAMBIL VEEDU, KARIMUGAL COLONY, PUTHENCRUZ, ESI NO.944845, P.F. NO. 1093. 54. P.M. MARY, PUNNADATHY MOOLAYIL VEEDU, BRAHMAPURAM, ESI NO.944799, P.F. NO. 852. 55. M.A. RADHA, VENNITHADATHIL, BRAHMAPURAM, ESI NO. 944653, P.F.NO.509. 56. C.J. AMMINI, CHOOLAKUZHI, BRAHMAPURAM, ESI NO.944653, PF. NO. 509. 57. K.V. ANNAKUTTY, PUNNEDATHUMALAYIL, BRAHMAPURAM, ESI NO. 944714, PF.NO.2526. 58. A.K. MANI, ASSERY KAROTTU, FACT COLONY, ESI NO.944891, P.F. NO. 1175. 59. M.T. MARY, VENNITHADATHIL HOUSE, BRAHMAPURAM, ESI.NO.943808, PF. NO. 1081. 60. K.P. MARY, KOZHAKKEKUNNU HOUSE, MORAKALA KARA, KUMARAPURAM, ESI NO. 944751 P.F.NO.78. 61. K.C. AMMINI, PULLUMALAKAROTTA (H), KARIMUGAL, ESI NO. 944135, PF.NO.1758. 62. M.A. THANKAMMA, PULLUMALAKAROTTA (H), KARIMUGAL(H), ESI NO.54943897, P.F.NO.1943. W.P.(C). NO.23690/2005-T: 63. K.C. THANKAMMA, KOCHINIKKATTU KAROTTU, KARIMUGAL, PUTHENCRUZ, ESI.NO.944978, P.F. NO. 1655. 64. K.G. MARY, KOTTAPARAMBIL (H), KARIMUGAL, PUTHENCRUZ, ESI NO.943899, PF.NO.585. 65. K.A. KUNJUMOL, VELLUMANAKUZHI (H), FACT COLONY, KARIMUGAL, PUTHENCRUZ, PF NO.1327, ESI NO. 944400. 66. K.C. THANKA, MOOLAYAKAROTA HOUSE, BRAHMAPURAM, ESI NO. 944810. R2 BY ADV. SRI.S.GOPAKUMARAN NAIR, SC, P.F, R3 BY ADV. V. SAJITH KUMAR, R30 BY ADV. SRI.MANSOOR.B.H. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.23690/2005-T: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER OF THE R.2. DTD. 07/01/91. EXT.P.2: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P. NO. 1149/91 DTD. 04/03/1996. EXT.P.3: COPY OF THE STATEMENT FILED BY THE PETITIONER BEFORE THE R.2. DT. 09/10/1998. EXT.P.4: COPY OF THE ADDITIONAL STATEMENT FILED BY THE PETITIONER BEFORE R.2. DTD. 04/01/1999. EXT.P.5: COPY OF THE ADDL. STATEMENT DTD. 02/03/1999 FILED BY THE PETITIONER BEFORE THE R.2. EXT.P.6: COPY OF THE NOTICE DTD. 07/06/1999 ISSUED BY THE R.2. EXT.P.7: COPY OF THE NOTICE DTD. 16/08/1999 ISSUED BY THE R.2. EXT.P.8: COPY OF THE NOTICE DTD. 07/02/2000 ISSUED BY THE R.2. EXT.P.9: COPY OF THE NOTICE DTD. 13/04/2000 ISSUED BY THE R.2. EXT.P.10: COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE R.2. IN OCTOBER 1999. EXT.P.11: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P. NO. 18315/96 DTD. 23/07/97. EXT.P.12: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P. NO. 3131/98 DTD. 27/02/98. EXT.P.13: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P. NO. 18180/98 DTD. 05/10/98. EXT.P.14: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P. NO. 12602/199 DTD. 27/05/1999. EXT.P.15: COPY OF THE ORDER OF THE R.2. DTD. 01/02/2000. EXT.P.16: COPY OF THE APPEAL (WITHOUT THE ANNEXURE) FILED BY THE PETITIONER BEFORE THE R.1. TRIBUNAL, AGAINST EXT.P.14 ORDER. EXT.P.17: COPY OF THE ORDER (ORAL) DTD. 21/02/2005 OF THE R.1. TRIBUNAL IN CASE NO. 290(7)/2000. W.P.(C). NO.23690/2005-T: EXT.P.18: COPY OF THE ADDL. STATEMENT FILED BY THE COUNSEL FOR THE PETITIONER BEFORE THE R.1. DTD. 18/11/2002 ALONG WITH COPY OF ORDER KR/KC/165 B/ENF.1 (2)/2001 DTD. 10/01/2002. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. S.SIRI JAGAN, J. = = = = = = = = = W.P.(C) No. 23690 OF 2005 = = = = = = = = = = = = = = DATED THIS, THE 4TH DAY OF OCTOBER, 2010. J U D G M E N T The petitioner is a company registered under the Companies Act, owned by the Government of India. A question arose as to whether their contract workers should be enrolled as members of the Employees' Provident Fund Scheme and in respect thereof proceedings under Section 7A was initiated by the second respondent. All the employees' unions were heard in the matter and ultimately, Ext.P1 order dated 7.1.1991 was passed by the second respondent deciding as to which of contract employees are also eligible to be enrolled in the Provident Fund and computing the contribution payable in respect of those employees. The petitioner challenged the same before this Court by filing O.P. 1149 of 1991 in which by Ext.P2 judgment dated 4.3.1996 this Court confirmed Ext.P1 order. Thereafter, in the year 2000, the second respondent initiated fresh proceedings for enrollment of other workers also under Section 7A of the Employees' Provident Funds & Miscellaneous Provisions Act. Petitioner objected to the same on the ground that the same amounts to determination of escaped amount under Section 7C of the Act, which cannot be done after WP(C) 23690/2005 2 five years from the date of the original order under Section 7A. Rejecting the contentions of the petitioner, Ext.P15 order has been passed holding that the fresh proceedings under Section 7A of the Act is maintainable. Petitioner challenged the same before the Employees' Provident Fund Appellate Tribunal by filing Ext.P16 appeal. While that appeal was pending, in respect of some other workers, proceedings were initiated which culminated in Ext.P18 order whereby both on the question of limitation as well as merits, the second respondent himself came to the conclusion that Ext.P1 order cannot be reopened. That order was also cited before the Tribunal at the time of hearing . But the Tribunal, by Ext. P17 order, dismissed the appeal holding that Ext.P15 is only an interim order, against which no appeal would lie. Petitioner challenges the same. 2. According to the petitioner, the reasons stated in Ext.P15 order for re-adjudicating the matter is clearly unsustainable. The reason given in Ext.P15 that proceedings would lie under para 26 B of the Employees' Provident Fund Scheme is clearly unsustainable since para 26 B cannot have an independent existence from Section 7A is the petitioner's contention. 3. A counter affidavit has been filed by the Provident Fund Organization, wherein they would take the contention that the proceedings WP(C) 23690/2005 3 are maintainable under Para 26B of the Scheme in so far as the workers have no other place to go for seeking enrollment under the Scheme. 4. I have considered the rival contentions in detail. Admittedly, by Ext.P1, after hearing the representatives of the unions representing all the contract workers of the petitioner, it had been finally decided as to which all contract employees are entitled to be enrolled under the scheme and the amounts of contribution payable by the petitioner in respect of each. That order has been confirmed by Ext.P2 judgment of this Court. I am of the opinion that even apart from the limitation period prescribed in Section 7C of the Act, the second respondent could not have reopened Ext.P1 order in so far as Ext.P1 has merged with Ext.P2 judgment and that would amount to reopening of Ext.P2 judgment of this Court, which is not permissible under law. 5. As rightly pointed out by the leaned counsel for the petitioner, Para 26B cannot have a separate existence from Section 7A of the Act. As I have already stated, Ext.P1 order has been passed after considering the case of the entire contract workers in service at that time. It is not as if the other contract workers were not aware of those proceedings. If they were aggrieved by their non-inclusion in Ext.P1 order, they should have challenged Ext.P1 order within a reasonable time. Even otherwise, by WP(C) 23690/2005 4 Ext.P18 order, after holding that the claim put forward by 33 other employees is unsustainable on merits as well as on the ground of limitation under Section 7C, the second respondent could not have validly decided that in respect of some other employees such proceedings are maintainable. Therefore, on all grounds, the respondents could not have validly started a fresh proceeding under Section 7A of the Act for enrolling some other contract workers also for the same period after having passed Ext.P1 order which has become final in view of Ext.P2 judgment. In the above circumstance, the impugned orders are unsustainable and accordingly, they are quashed. The writ petition is thus allowed. S.SIRI JAGAN, JUDGE. knc/-