IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 WP(C).No. 13641 of 2004(Y) -------------------------- PETITIONER(S): --------------- THE BALLAPATTAM TILE WORKS LTD., PAPPINISSERI, KANNUR DISTRICT, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV. SRI.U.K.RAMAKRISHNAN, SENIOR ADVOCATE SRI.P.V.LOHITHAKSHAN SRI.DEVIDAS.U.K RESPONDENT(S): --------------- 1. THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, 60, SKY PARK BUILDING, 7TH FLOOR, NEHRU PLACE, NEW DELHI. 2. THE ASSISTANT PROVIDENT FUND COMMISSIONER,EMPLOYEES PROVIDENT FUND ORGANISATION SUB REGIONAL OFFICE, V.K. COMPLEX, FORT ROAD, KANNUR. 3. THE RECOVERY OFFICER, EMPLOYEES PROVIDENT FUND ORGANISATION, SUB REGIONAL OFFICE, V.K. COMPLEX, FORT ROAD, KANNUR. ADV. SRI.R.SUDHIR, SC, P.F. FOR R.2,3 SRI.THOMAS MATHEW NELLIMOOTTIL,SC, P.F. FOR R2,3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 13641 of 2004(Y) APPENDIX Petitioners Exhibits: Ext.P1: Truecopy of the order dated 11.12.2003 passed by the 2nd respondent. Ext.P2: True copy of the appeal memorandum filed by the petitioner before the 1st respondent without annexures. Ext.P3: True copy of the petition for stay filed by the petitioner before the 1st respondent Ext.P4: True copy of the petition filed by the petitioner before the 1st respondent for waiving the deposit of 75%. Ext.P5: True copy of the demand dated 1.4.2004 issued by the 2nd respondent. /True copy/ P.A. To Judge C.T. RAVIKUMAR, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (C) No. 13641 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of September, 2009 J U D G M E N T The petitioner is a company registered under the Companies Act. They set up a new factory, a wood processing factory in the year 1995 nearby its tile factory No.II. According to the petitioner, it is a separate and independent establishment and it is covered as a separate establishment under the Employees State Insurance Act. Since there are only less than 20 employees in the wood processing unit, they are not liable to be registered under the Provident Fund Act and liable to pay contribution, it is contented. However, the company itself voluntarily registered its employees of the wood processing unit under the Employees Provident Fund Act on 1.4.1997. Thereafter, the second respondent demanded Provident Fund contribution for the employees employed in the wood processing unit from January,1995. Upon failure of the petitioner to make such contribution, the second respondent had proceeded with the matter and passed Ext.P1 WPC.No. 13641 OF 2004 : 2 : order fixing Rs.78,604.40/- as P.F. contribution for the period from January 1995 to March, 1997 and held the petitioner liable to pay the said amount. The petitioner took up the matter in Appeal before the First respondent. Along with Ext.P2 appeal thus preferred before the first respondent, Ext.P3 stay petition was also filed. Yet another petition was filed before the first respondent, viz.Ext.P4, for waiving the deposit of 75% as a condition to entertain the appeal. According to the petitioner, Ext.P2 appeal was not taken up for consideration as there was no Presiding Officer for the Employees Provident Fund Appellate Tribunal. During the pendency of the said appeal, the second respondent issued Ext.P5 authorizing the 3rd respondent to recover the amount fixed as per Ext.P1, in case the petitioner fails to remit the amount. It was in the said circumstances, the petitioner approached this Court by filing the above writ petition seeking the following reliefs. (i). A writ of certiorari or any other appropriate writ, order or direction calling for the records relating to the order No.KR/KNR/224/Enf.1(1)/2003/7A dated 11.12.2003 issued by the 2nd respondent, evidenced by Ext.P1, and the demand No. KR/KNR/224/Enf.1(01)/2004/45 dated 1.4.2004/15.4.2004 issued by the 2nd respondent, evidenced by Ext.P5, and quash the same. WPC.No. 13641 OF 2004 : 3 : (ii) A writ of mandamus or any other appropriate writ order or direction directing respondents 2 and 3 not to recover the amount of Rs.78,604.40 demanded as per Ext.P1 and P5 from the petitioner till the disposal of Ext.P2 appeal by the 1st respondent. (iii) A writ of mandamus or any other appropriate writ, order or direction directing the 1st respondent to consider and dispose of Exts.P2, P3 and P4. 2. While admitting this writ petition an interim order was passed directing to keep Ext.P5 in abeyance. The petitioner was also directed to remit an amount of Rs.15,000/- as a condition. Admittedly he had complied with that condition. Therefore the question now to be decided is with respect to the liability of the petitioner to pay the balance amount. According to the petitioner Ext.P2 Appeal is still pending. At the same time the counsel for the respondent submits that the respondents, hitherto, got no information with regard to the pendency of Ext.P2 Appeal. Since the Appellate Tribunal under the Employees Provident Fund Act is now in session and the matter is in its seisin there is no scope for considering the merits of the contentions by this Court at this stage. 3. In the result, this writ petition is disposed of granting liberty to the petitioner to move the first respondent with WPC.No. 13641 OF 2004 : 4 : appropriate application for an early disposal of Ext.P2 Appeal. At any rate, he may do so within a month from today. However, there shall be a direction to the second respondent to keep Ext.P5 in abeyance till Ext.P3 stay petition is taken up by the first respondent. It is also made clear that in case no such appeal is pending, as contented, then the second and third respondents are at liberty to proceed with the matter to recover the balance amount pursuant to Ext.P5. The writ petition is accordingly, disposed of. ( C.T. RAVIKUMAR, JUDGE) jma