IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 WP(C).No. 3984 of 2010(W) ------------------------- PETITIONER: ------------- SHAMEEMA CASHEW AGENCIES,KALLUMTHAZHAM P.O., KOLLAM-691 004,REPRESENTED BY ITS PROPRIETOR, M.ABDUL RASHEED,AGED 60 YEARS, SON OF MASTHAN KUNJU. BY ADV. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SRI.K.V.GEORGE RESPONDENTS: ----------------- 1. EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL,CORE 2,4TH FLOOR,SCOPE MINAR,LAXMI NAGAR, NEW DELHI-110 092. 2. THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, SUB REGIONAL OFFICE,MANNANIYA COMPLEX, ANDAMUKKAM,KOLLAM-691 001. R2 BY ADV. SRI.PIRAPPANCODE P.V.S.SUDHIR,SC,EPF ORGN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. SURENDRA MOHAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W. P.(C) No. 3984 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of February, 2010 JUDGMENT The petitioner has filed this writ petition challenging Ext.P20 order of the Employees Provident Fund Appellate Tribunal, New Delhi in ATA No.389(7)2009. The petitioner is conducting a Cashew factory. According to the petitioner, the factory is not working at present. The petitioner's establishment was inspected initially by the Enforcement Officer, Kollam and later by a Squad of Enforcement Officers. A number of discrepancies were noted during the inspection. Therefore, proceedings were initiated and an order was passed under Section 7A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 directing the petitioner to remit an amount of Rs.34,54,610/- as Provident Fund contribution. Though the petitioner filed review against the said order under Section 7B of the Act, the same was rejected. Thereafter, the petitioner has filed an appeal before the appellate Tribunal. 2. Along with the appeal, the petitioner filed a petition WP(C) No. 3984 of 2010 -:2:- seeking exemption from pre-deposit of 75% of the amount assessed. As per Ext.P20 order, the Appellate Tribunal has directed the petitioner to remit 40% of the assessed amount, thereby granting waiver of 35% of the assessed amount which the petitioner ought to have deposited otherwise. 3. The petitioner challenges Ext.P20 on the ground that no reasons as stipulated by Section 7-O of the Act have been stated in Ext.P20 for disallowing the request for waiver of the entire amount of pre-deposit. 4. The counsel for the 2nd respondent refers to Ext.P18, the petition filed by the petitioner seeking waiver of the pre-deposit and submits that it does not mention any ground for allowing waiver of the pre-deposit. Therefore, Ext.P20 order, has noticed that though no grounds have been made out for waiver of the pre-deposit, the petitioner could be granted relief to a limited extent by reducing the pre-deposit amount to 40%. Therefore, it is submitted that there are no grounds to interfere with Ext.P20. 5. According to the counsel for the petitioner, the petitioner and his wife are both persons who are sick and undergoing WP(C) No. 3984 of 2010 -:3:- treatment, as evidence by Exts.P22 and P23. The petitioner has already remitted an amount of Rs.2 lakhs pursuant to Ext.P20 order. He is not in a position to make any further payment at present. Therefore, he prays for setting aside Ext.P20 order and for an opportunity to file an additional affidavit setting out the circumstances under which he seeks waiver of the pre-deposit before the appellate Tribunal. 6. I have heard Mr.Ashok B. Shenoy for the petitioner and Sri.Pirappancode V.S. Sudheer for the 2nd respondent. 7. According to the petitioner, the establishment could not be conducted due to financial problems and has been closed down. The petitioner and his wife are both sick and undergoing treatment, incurring considerable expenditure. According to the petitioner, a number of payments were made by him to the 2nd respondent. But credit has not been given for such payments, while issuing the order under Section 7A. Therefore, according to him, the order passed cannot be sustained. It is also contended that many of the persons who have been considered to be employees are actually persons who are retired from the service WP(C) No. 3984 of 2010 -:4:- of the Cashew Development Corporation and who are already enrolled as members of the Employees Provident Fund. Therefore, according to the petitioner, on a proper evaluation of the documents in his possession it would be found that, the order under appeal cannot be sustained. However, the above facts were not mentioned in his affidavit in support of the petition for waiver due to inadvertence. 8. I notice that the order to be passed under Section 7-O of the Act has to be supported by reasons as mandated by the provisions itself and as laid down by a Division Bench of this Court in Muthoot Pappachan C & M Services v. E.P.F. Organisation[2009(1) KLT 341]. Ext.P20 does not mention any reason for fixing the pre-deposit at 40%, though the order has found that the petitioner has not made out a case for the grant of waiver. Therefore, it is not possible to ascertain the reason for fixing 40% as the pre-deposit amount. However, such a reconsideration can be ordered only on the petitioner depositing a further amount as a condition for such reconsideration. 9. In the above circumstances, the order of the EPF WP(C) No. 3984 of 2010 -:5:- Appellate Tribunal dated 01.10.09 in ATA No. 389(7) 2009 is set aside on condition that the petitioner remits a further amount of Rs.5 lakhs towards the amounts demanded from him. The appellate authority shall reconsider the application for waiver of pre-deposit submitted by the petitioner, after giving an opportunity to the petitioner to submit an additional affidavit, if permission in this regard is sought for, and fresh orders shall be passed in accordance with law within a period of three months. It is also submitted that the appeal is posted on 08.06.10. Therefore, the appellate authority shall also consider whether it is possible to dispose of the appeal on the said date itself or at least within a period of two months thereafter. K. SURENDRA MOHAN, JUDGE ttb