IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 WP(C).No. 17732 of 2011(N) -------------------------- PETITIONER(S): --------------- M/S. APRAM (AMEEN PILLAI RAWTHER MEMORIAL) CENTRAL SCHOOL, CHITHARA, KOLLAM REPRESENTED BY ITS CHAIRMAN, SRI.M.ABDUELSALAM, S/O. MAITHEEN BABA RAWTHER, PANTHADIVILA VEEDU, MANKODU.P.O., CHITHARA, KOLLAM DISTRICT. BY ADV. SRI.C.RAJENDRAN SMT.R.S.SREEVIDYA RESPONDENT(S): --------------- 1. THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORAGANIZATION, SUB REGIONAL OFFICE, STATE OF KERALA, KOLLAM DISTRICT. 2. THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, NEW DELHI. BY ADV. SRI.V.V.SURESH, SC FOR EPF ORGANISATION. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.17732 of 2011 EXT.P1 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 29.2.2008 EXT.P2 TRUE PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT DT. 19.6.2008 EXT.P3 TRUE PHOTOCOPY OF THE APPEAL MEMORANDUM DATED 28.7.2008. EXT.P4 TRUE PHOTOCOPY OF THE ORDER OF THE 2ND RESPONDENT DT. 16.3.2011 EXT.P5 TRUE PHOTOCOPY OF THE ORDER OF THE 2ND RESPONDENT DT. 18.5.2011. EXT.P6 TRUE PHOTOCOPY OF THE ORDER OF THE 2ND RESPONDENT DT. 6.6.2011. EXT.P7 TRUE PHOTOCOPY OF THE JUDGMENT IN WRIT PETITION (CIVIL) NO.14916 OF 2011 DATED 14.6.2011. //TRUE COPY// P.A. TO JUDGE. P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No.17732 of 2011 ------------------------------- Dated this the 1st day of July, 2011 J U D G M E N T Ext.P4 order passed by the Employees' Provident Fund Appellate Tribunal directing the petitioner to deposit 40% of the assessed amount by way of pre-deposit, Ext.P5 order directing the petitioner to confirm compliance and Ext.P6 order rejecting the appeal filed by the petitioner for non-payment of 40% of the amount assessed are under challenge in this writ petition. The petitioner had earlier filed W.P.(C) No.14916 of 2011 challenging Ext.P4 order. But immediately after the writ petition was filed, the appeal itself was rejected on 6.6.2011 for non payment of 40% of the amount assessed. In such circumstances, the writ petition was allowed to be withdrawn reserving liberty with the petitioner to challenge the order passed on 6.6.2011 rejecting the appeal besides the order impugned in the earlier writ petition. It is in this background that the instant writ petition has been filed seeking the aforesaid reliefs. 2. By Ext.P1 order passed under Section 7A of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as 'the Act' for short), the first respondent directed the petitioner to pay the sum of Rs.3,50,608/- by way of contribution for the period from November 2006 to October, 2007 in W.P.(C) No.17732 of 2011 2 respect of 35 non enrolled employees of the petitioner's establishment. The petitioner attempted a review under section 7B of the Act and it was rejected by Ext.P2 order. Aggrieved thereby, the petitioner filed Ext.P3 appeal before the Employees' Provident Fund Appellate Tribunal under section 7(I) of the Act and it was in that appeal that Ext.P4 order was passed directing the petitioner to deposit 40% of the assessed amount by way of pre-deposit. 3. The main contention raised in the instant writ petition is that the Tribunal erred in directing the petitioner to pay 40% of the amount assessed. It is contended that the Tribunal ought to have, taking note of the contention raised by the petitioner that the petitioner is not liable to pay any contribution in respect of the 35 employees who were not willing to be enrolled in the provident fund waived the stipulation regarding pre-deposit. 4. Section 7 O of the Act states that no appeal by the employer shall be entertained by the Tribunal unless he has deposited with it 75% of the amount due from him as determined by the officer referred to in section 7A. It is however stipulated that the Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under that section. Though in the appeal memorandum (copy of which is produced as Ext.P3) filed before the W.P.(C) No.17732 of 2011 3 Employees' Provident Fund Appellate Tribunal, the petitioner had raised various grounds on the merits, the petitioner had not prayed for an order waiving the pre-deposit or set out any reason including financial hardship which warrants such waiver. In other words, the appeal memorandum is totally silent as regards waiver of pre-deposit, though in the writ petition, a large number of grounds have been raised in support of the said contention. The Tribunal was therefore perfectly right in directing deposit of 40% of the amount assessed. The petitioner who did not request for waiver of pre-deposit in the appeal memorandum cannot in my opinion be heard to contend that such an order should not have been passed. The challenge to Ext.P4 is therefore without any merit. By Ext.P6 order passed on 6.6.2011, the Employees' Provident Fund Appellate Tribunal dismissed the appeal for non compliance with Ext.P4 order. Though, I find no reason to interfere with Ext.P4 order, having regard to the fact that the Act confers on the petitioner the right to file an appeal, I am of the opinion that the petitioner should be afforded another opportunity to pay 40% of the amount assessed as pre-deposit and to have the appeal heard and decided on the merits. I accordingly allow the writ petition, quash Ext.P6 and direct that in the event of the petitioner depositing 40% of the W.P.(C) No.17732 of 2011 4 amount assessed on or before 31.8.2011 with the first respondent and producing the proof of such payment before the Employees' Provident Fund Appellate Tribunal, the Appellate Tribunal shall take back the appeal to file, issue notice to the respondents, hear them and pass orders thereon in accordance with law. Till such time, further proceedings pursuant to the order impugned in the appeal shall also stand stayed, if the petitioner deposits 40% of the amount assessed as directed above. P.N. RAVINDRAN, JUDGE. nj.