IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 WP(C).No. 11237 of 2009(Y) -------------------------- PETITIONER(S): --------------- KUNJELI MATHEW, AGED 85 YEARS, W/O.LATE MATHEW, M/S.RAJAN CASHEW FACTORY, CHERUVAKKAL, AYOOR, KOLLAM. BY ADV. SRI.V.V.RAJA SRI.R.RANJITH RESPONDENT(S): --------------- 1. THE EMPLOYEES PROVIDENT FUND ORGANISATION, BHAVISHYANIDHI BHAVAN, P.B.NO.1016, THIRUVANANTHAPURAM REPRESENTED BY THE COMMISSIONER. 2. THE ASSISTANT PROVIDENT FUND COMMISSIONER, EPF SUB REGIONAL OFFICE, OLD MUNICIPAL BUILDING, CHINNAKKADA, KOLLAM. 3. THE RECOVERY OFFICER, EMPLOYEES PROVIDENT FUND ORGANISATION, BHAVISHYANIDHI BHAVAN, P.B.NO.1016, PATTOM, THIRUVANANTHAPURAM - 695 004. 4. G.PRABHAKARAN, PROPRIETOR, M/S.PRS CASHEWS, PK NIVAS, EZHUKONE, KOLLAM, KERALA. *5. EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, NEW DELHI, REP. BY ITS REGISTRAR (ADDL. 5TH RESPONDENT IS IMPLEADED AS PER ORDER IN I.A.NO.304 OF 2010 DATED 14.1.2010) BY SRI. V.V.SURESH, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 11237 OF 2009 -------------------------- Dated this the 14th day of January, 2010 J U D G M E N T The petitioner is the owner of a cashew factory. She had leased out the factory to the fourth respondent as per Ext.P1 agreement for the period from 1.1.2006 to 31.12.2007 on a monthly rent of Rs.5,000/-. As per the terms of the said agreement, the liability to pay wages and contributions to the Employees Provident Fund and other statutory payments to workers was to be made by the fourth respondent. It appears that the fourth respondent did not remit the contribution to the Employees Provident Fund within time. Thereupon an enquiry under Section 7A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 was conducted with notice to the petitioner, the fourth respondent and another. The petitioner attended the hearing and submitted before the Assistant Provident Fund Commissioner, who conducted the enquiry, that she had leased out the factory to different persons during different periods and that from 1.1.2006 onwards till 31.12.2007 the fourth respondent was running the factory. The fourth respondent who was also present during the enquiry admitted the said fact. The W.P.(C) No. 11237/09 2 Assistant Provident Fund Commissioner also heard Sri. Oommen Abraham who had run the factory for the period prior to 1.1.2006. The Assistant Provident Fund Commissioner thereafter passed Ext.P3 order dated 24.6.2008 determining the contribution payable by Sri.Oommen Abraham and the fourth respondent during the period from April 2004 to December 2005 and by the fourth respondent from January 2006 to December 2007 (both months inclusive) and directed them to remit the sum of Rs.2,79,926/- and the sum of Rs.9,40,527/- respectively. Copies of Ext.P3 were communicated to Sri. Sri.Oommen Abraham and the fourth respondent on 4.8.2008. A copy thereof was communicated thereof to the petitioner also. It appears the fourth respondent filed an application under Section 7B of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 seeking a review of Ext.P3 order. BY Ext.P4 order passed on 29.12.2008, the said application was allowed in part and the contribution payable by the fourth respondent for the period from January 2006 to December 2007 (both months inclusive) was reduced to Rs.6,14,460/-. A copy of the said order was communicated to the fourth respondent on 8.1.2009. The fourth W.P.(C) No. 11237/09 3 respondent did not however remit the contribution. It is stated that as a result thereof, the third respondent informed the petitioner that unless the amount covered by Ext.P4 order is paid, steps will be taken against the cashew factory to realise the amount covered by the said order. The petitioner thereupon applied to the second respondent for a copy of Ext.P4 order on 20.3.2009 and a copy was furnished to her on the same day. She thereafter filed Ext.P5 appeal under Section 7I of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 before the Employees Provident Funds Appellate Tribunal, New Delhi. The original of Ext.P5 order was sent by speed post on 24.3.2009 itself accompanied by Ext.P8 application seeking stay of operation of Ext.P4 order. This writ petition was thereupon filed challenging Ext.P4 order and seeking a direction to respondents 1 to 3 to refrain from proceeding against the petitioner pursuant to Ext.P4 order till a decision is taken on Ext.P5 appeal. The petitioner has after this writ petition was filed submitted Ext.P9 petition dated 11.1.2010 before the Appellate Tribunal to condone the delay of 16 days in filing Ext.P5 appeal. 2. The pleadings disclose that Ext.P4 order was passed on W.P.(C) No. 11237/09 4 29.12.2009. It is evident from Ext.P4 that a copy was never communicated to the petitioner. The petitioner applied for and obtained a copy thereof on 20.3.2009 and within four days thereafter sent Ext.P5 appeal by speed post to the Employees Provident Funds Appellate Tribunal. Under Rule 7 of the Employees Provident Funds Appellate Tribunal (Procedure) Rules, an appeal under Section 7I of the Act has to be filed within 60 days from the date of issue of the order. The Appellate Tribunal is however empowered to condone the delay in filing the appeal up to 60 days, if sufficient cause is shown for not filing the appeal in time. Under Rule 7 of the Employees Provident Funds Appellate Tribunal (Procedure) Rules an appeal can be entertained by the Appellate Tribunal provided, it is filed within 120 days from the date of the order appealed against, and the delay in filing the appeal is satisfactorily explained. 3. In the instant case, Ext.P4 order was passed on 29.12.2008. Even if the period of limitation is computed with reference to that date, the period of 60 days prescribed for filing the appeal would expire only on 28.2.2009. Under Rule 7 of the Employees Provident Funds Appellate Tribunal (Procedure) Rules, W.P.(C) No. 11237/09 5 the Appellate Tribunal is empowered to condone the delay in filing the appeal if the delay does not exceed 60 days. The said period of 60 days expired on 28.4.2009. Ext.P5 appeal dated 24.3.2009 was sent by registered post acknowledgment due, on 24.3.2009 itself. The delay in filing the appeal is thus within condonable limits. In such circumstances, as the petitioner will be put to prejudice if the fourth respondent does not pay the amount covered by Ext.P4 order, I am of the opinion that the Appellate Tribunal should consider Ext.P9 application to condone the delay in filing Ext.P5 appeal and Ext.P8 application seeking stay of operation of the order impugned in the appeal and pass orders thereon expeditiously. I accordingly dispose of this writ petition with a direction to the Employees Provident Funds Appellate Tribunal to take up Ext.P5 appeal along with Ext.P9 application to condone the delay in filing the appeal and Ext.P8 application for stay of execution of the order impugned in the appeal and to consider the same along with the prayer made by the petitioner to dispense with pre deposit and pass orders on Ext.P9 application and Ext.P8 stay petition expeditiously and in any event within two months from the date of receipt of a W.P.(C) No. 11237/09 6 certified copy of this judgment. Till such time, Ext.P4 order shall not be enforced against the petitioner. It will however be open to the Employees Provident Fund Organisation to proceed against the fourth respondent and his assets if he has not challenged Ext.P4 order till date and the operation of Ext.P4 order has not been stayed at his instance. P.N.RAVINDRAN, JUDGE vps