IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 6TH JULY 2011 / 15TH ASHADHA 1933 WP(C).No. 13338 of 2011(N) -------------------------- PETITIONER: --------------- M/S.KAILAS CASHEW EXPORTS, PEZHUKONAM, CHEERANKAVU, EZHUKONE, KOLLAM-691 505, REPRESENTED BY ITS PROPRIETOR MR.P.SOMARAJAN. BY ADV. SRI.N.RAGHURAJ RESPONDENTS: --------------- 1. THE REGIONAL PROVIDENT FUND COMMISSIONER, KOCHI, EMPLOYEE'S PROVIDENT FUND ORGANIZATION, SUB REGIONAL OFFICE, BHAVISYA NIDHI BHAVAN, KALOOR, KOCHI-682 017. 2. THE EMPLOYEE'S PROVIDENT FUND APPELLATE TRIBUNAL, SCOPE MINAR, CORE II, 4TH FLOOR, LAXMI NAGAR, NEW DELHI-110 092. BY SRI.A.RAJASIMHAN, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 13338/2011 APPENDIX PETITIONER'S ANNEXURES: EXT.P1 : COPY OF THE ORDER DATED 29.5.2007 EXT.P2 : COPY OF THE MEMORANDUM OF APPEAL EXT.P2(a) : COPY OF THE APPLICATION FOR WAIVER OF PRE-DEPOSIT EXT.P3 : COPY OF THE ORDER DATED 14.3.2011 RESPONDENTS' ANNEXURES: ANNEXURE R1(a) : COPY OF ORDER DATED 6.10.2010 ANNEXURE R1(b) : COPY OF JUDGMENT IN W.P.(C) No. 23354/2007 DATED 31.7.2007 ANNEXURE R1(c) : COPY OF JUDGMENT IN W.P.(C) No. 16055/2009 DATED 10.6.2009 ANNEXURE R1(d) : COPY OF THE JUDGMENT IN W.P.(C) No. 34442/2010 DATED 7.12.2010 //TRUE COPY// P.A. TO JUDGE vps P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 13338 OF 2011 -------------------------- Dated this the 6th day of July, 2011 J U D G M E N T Ext.P3 order passed by the Employees Provident Fund Appellate Tribunal, New Delhi under section 7-O of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as 'the Act' for short) waiving deposit of 60% of the amount assessed by Ext.P1 order and directing the petitioner to deposit 40% of the said amount as a condition precedent for entertaining Ext.P2 appeal filed from Ext.P1 order, is under challenge in this writ petition. The main ground of attack to Ext.P3 is that the Appellate Tribunal has proceeded on the basis that the petitioner is a company and that the petitioner has not produced any materials to show that it has been declared as a sick unit. It is also contended that the petitioner had asked for waiver of the pre-deposit on the ground that due to precarious financial position, the petitioner is not in a position to deposit the amount assessed as per Ext.P1 order. 2. The proviso to section 7-O of the Act makes it clear that an order dispensing with payment in full or part has to be supported by reasons. In the instant case, the only reason for directing payment of 40% of the amount assessed is that the petitioner has not produced any materials to show that his unit has been declared as a sick unit. A reading of the appeal memorandum would show that the case set out by the petitioner is WPC No.13338/2011 2 different. The petitioner had no case that his unit is a sick unit. His contention was that the beneficiaries are not identifiable and that on account of his precarious financial position he is not in a position to meet the demand made in Ext.P1 order. It is thus evident that the Appellate Tribunal has not properly noticed the contentions set out by the petitioner in appeal memorandum relating to the request for waiver of the pre-deposit. In that view of the matter, I am of the opinion that the Appellate Tribunal should reconsider the request made by the petitioner for waiver of pre- deposit. I accordingly allow the writ petition, quash Ext.P3 and direct the Appellate Tribunal to reconsider the request made by the petitioner in Ext.P2(a) application for waiver of pre-deposit and pass fresh orders thereon expeditiously and in any event within one month from the date on which either the petitioner or the first respondent produces a certified copy of this judgment before the Appellate Tribunal. The contentions of both sides on the merits are kept open. P.N.RAVINDRAN, (JUDGE) vps WPC No.13338/2011 3 P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 13338 OF 2011 -------------------------- Dated this the 25th day of May, 2011 O R D E R Admit. Sri.A.Rajasimhan, learned standing counsel takes notice for the first respondent. Issue urgent notice returnable in 10 days to the second respondent. There will be an interim order staying further proceedings pursuant to Ext.P3 order passed by the Employees' Provident Fund Appellate Tribunal in A.T.A. No.612(7)2007 until further orders. Post after 10 days. Hand over a copy of this order on usual terms. P.N.RAVINDRAN, (JUDGE) vps