IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 19TH JANUARY 2011 / 29TH POUSHA 1932 WP(C).No. 29608 of 2010(A) ----------------------------------- PETITIONER(S): ------------------- POPULAR AUTOMOBILES,(NOW KUTTUKARAN TRADING VENTURES),KUTTUKKARAN CENTRE,MAMANGALAM, KOCHI-682 025,REP.BY ITS PARTNER. BY ADV. SRI.E.K.MADHAVAN SMT.P.VIJAYAMMA SRI.V.KRISHNA MENON RESPONDENT(S): ------------------------- 1. THE ASSISTANT PROVIDENT FUND COMMISSIONER,EMPLOYEES PROVIDENT FUND ORGANIZATION SUB REGIONAL OFFICE,BHAVISHYANIDHI BHAVAN, KALOOR,KOCHI-682 017. 2. THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL,CORE-2,4TH FLOOR,SCOPE MINAR,LAXMI NAGAR, NEW DELHI-110 092,REPRESENTEDBY ITS REGISTRAR. R1 BY SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE R1 BY ADV. SRI.M.CHANDRA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.29608/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PROCEEDINGS DTD. 3.6.05 ISSUED BY THE IST RESPONDENT. P2:- COPY OF THE ORDER DTD. 3.6.2005 ISSUED BY THE IST RESPONDENT. P3:- COPY OF THE MEMORANDUM OF APPEAL WITHOUT ANNEXURE. P4:- COPY OF THE NOTICE DTD. 9.8.2010 ISSUED BY THE 2ND RESPONDENT. P5:- COPY OF THE POSTAL COVER. P6:- COPY OF THE ORDER DTD. 1.9.2010 PASSED BY THE 2ND RESPONDENT. TRUE COPY P.S. TO JUDGE tss P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.29608 of 2010 ----------------------------------------- Dated this the 19th day of January, 2011 JUDGMENT The petitioner is a partnership firm engaged in the business of sale of automobile spare parts. The establishment of the petitioner is covered under the Employees Provident Funds and Miscellaneous Provisions Act, 1952. Though the petitioner was promptly remitting the contribution till March 2002 there was delay in remitting the contribution from April 2002 onwards. The first respondent thereupon issued a notice proposing to levy damages under section 14 B of the Employees Provident Funds and Miscellaneous Provisions Act, 1952, hereinafter referred to as “the Act” for short. After the petitioner filed their objections and was heard the first respondent passed Ext.P1 order dated 3.6.2005 levying the sum of Rs.5,62,355/- as damages under section 14B of the Act. The first respondent also simultaneously passed Ext.P2 order levying the sum of Rs.2,43,451/- as interest under section 7Q of the Act. Aggrieved by Ext.P1 order the petitioner filed Ext.P3 appeal before the second respondent W.P(C).No.29608 of 2010 -:2:- Tribunal. Since no appeal lies from Ext.P2 order the petitioner paid the interest levied by that order. 2. In Ext.P3 appeal the second respondent Tribunal passed an interim order directing payment of 50% of the amount determined in Ext.P1 within four weeks. It is stated that the said direction was complied with when 50% of the amount was deposited on 2.11.2005. The Tribunal thereafter issued Ext.P4 notice dated 9.8.2010 to the appellant and the first respondent informing them that the appeal will be heard on 18.8.2010. The petitioner states that the original of Ext.P4 notice was received only on 20.8.2010 after the date fixed for hearing and therefore the petitioner could not appear before the Tribunal when the case was called on for hearing on 18.8.2010. The Tribunal heard the appeal in the petitioner’s absence and by Ext.P6 order passed on 1.9.2010 rejected the appeal. Ext.P6 is under challenge in this writ petition. The main contention raised by the petitioner is that the petitioner did not get an opportunity to appear before the Tribunal and address arguments with reference to the grounds raised in Ext.P3 memorandum of appeal. The petitioner submits that as the notice of hearing was belatedly served it cannot be W.P(C).No.29608 of 2010 -:3:- said that there was failure on the part of the petitioner to appear before the Tribunal and therefore, the Tribunal ought to have granted an opportunity to the petitioner to appear and put forward the petitioner’s contentions, especially in view of the fact that the interim order passed by the Tribunal to deposit 50% of the amount determined in Ext.P1 has been complied with. 3. The first respondent has filed a statement through the learned standing counsel. It is contended that the petitioner had an obligation to pursue the case before the Tribunal, watch the dates of hearing and ensure that the case is not heard and disposed of ex parte. The first respondent has also contended that the second relief prayed for by the petitioner cannot be granted since the Tribunal cannot rehear an appeal and can only suo motu rectify mistakes in exercise of the power conferred on it under section 7-L of the Act. 4. I heard Sri.E.K.Madhavan, learned counsel appearing for the petitioner and Sri.M.Chandra Bose, learned counsel appearing for the first respondent. I have also gone through the pleadings and the materials on record. It is evident from Ext.P4 notice that Ext.P3 appeal was listed for hearing before the second respondent W.P(C).No.29608 of 2010 -:4:- Tribunal on 18.8.2010. There is no dispute about the said fact. Ext.P5, the cover in which Ext.P4 notice was served on the petitioner, discloses that it was delivered to the petitioner only on 20.8.2010. Ext.P5 discloses that it contained a postal article sent by the second respondent Tribunal. The respondent has no case that the postal article related to some other matter or to another appeal which was posted for hearing on another date. I am therefore proceeding on the basis that Ext.P4 letter was delivered to the petitioner only on 20.8.2010, that is, two days after the date of hearing. In Ext.P6 order, which is impugned in the writ petition, it is stated that no arguments were advanced by the petitioner and orders were reserved in the appeal after hearing the learned counsel appearing for the first respondent. On the terms of Ext.P4 notice the Tribunal would have been perfectly justified in deciding the matter on the basis of the available records without hearing the petitioner if there was failure on the part of the petitioner to appear when the case was called on for hearing or the petitioner remained unrepresented. In the instant case, the petitioner has established the fact that there was no failure on the part of the petitioner to appear when the case was W.P(C).No.29608 of 2010 -:5:- called on for hearing. The petitioner has established the fact that the notice of hearing was belatedly served on them and therefore there was no failure to appear. In such circumstances as there was no failure on the part of the petitioner to appear on 18.8.2010, I am of the opinion that the Tribunal should rehear the appeal after affording the petitioner an opportunity of being heard. I also find no merit in the contention of the learned counsel for the first respondent that this Court exercising jurisdiction under Article 226 of the Constitution of India, cannot direct the Tribunal to rehear the appeal and to dispose of the same on the merits. The Employees Provident Fund Appellate Tribunal, New Delhi, which is exercising powers under the Employees Provident Funds and Miscellaneous Provisions Act, 1952 is a Tribunal subordinate to this Court and this Court exercising jurisdiction under Articles 226 and 227 of the Constitution of India can issue directions to the Tribunal, which justice of the cause demands. The power of the Tribunal to rectify mistakes and errors is a power conferred on the Tribunal under the provisions of the Act and the said power cannot override the power conferred on this Court under Articles 226 and 227 of the Constitution of India, paramount law of the country. W.P(C).No.29608 of 2010 -:6:- I accordingly overrule the said contention. In the result I allow the writ petition, quash Ext.P6 and direct the second respondent Tribunal to take back the appeal to file, issue notice to the petitioner and the first respondent and pass revised orders thereon after affording the petitioner and the first respondent an opportunity of being heard. Until such time, the enforcement of Ext.P1 order shall be kept in abeyance. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.29608 of 2010 ---------------------------- JUDGMENT 19th January, 2011