IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 4TH APRIL 2011 / 14TH CHAITHRA 1933 WP(C).No. 3808 of 2011(A) ------------------------- PETITIONER(S): --------------- VICTORY PRESS (P) LTD. VICTORY PRESS ROAD, P.B.NO.27, KUNNAMKULAM P.O., THRISSUR DISTRICT, REP.BY ITS MANAGING DIRECTOR. BY ADV. SRI.M.P.ASHOK KUMAR SRI.S.N.SREEKANTH RESPONDENT(S): --------------- 1. THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANIZATION, SUB REGIONAL OFFICE, 36/685 A, BHAISHYANIDHI BHAVAN, KALOOR P.O., KOCHI-682 017. 2. K.NARAYANANKUTTY, KONDATH HOUSE, VARADIAM, P.O.AVANUR, THRISSUR- 680 547. BY ADV. DR.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE FOR R1 BY ADV. SRI.M.CHANDRA BOSE FOR R1 BY ADV. SRI.K.B.MOHANDAS FOR R2 BY ADV. SRI.LELLULAL T.G.THUNDATHIL FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.3808 OF 2011 EXT.P1 PHOTOCOPY OF THE NOTICE DATED 22.7.2010 EXT.P2 PHOTOCOPY OF THE REQUEST DATED 11.8.2010 EXT.P3 PHOTOCOPY OF THE ACKNOWLEDGMENT CARD DATED 13.8.2010 EXT.P4 PHOTOCOPY OF THE ORDER NO.KR/KC/3177/Enf-II(2)/2010/13913 DATED 19.10.2010 EXT.P5 PHOTOCOPY OF THE REQUEST DATED 29.10.2010 EXT.P6 PHOTOCOPY OF THE REPLY DATED 6.1.2011 ANNEXURE R1(A) TRUE COPY OF JUDGMENT IN W.A.NO.1721 OF 2007 DATED 16.7.2007. //TRUE COPY// P.A. TO JUDGE. P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No.3808 of 2011 ------------------------------- Dated this the 4th day of April, 2011 J U D G M E N T The petitioner is a company incorporated under the Companies Act, engaged in the business of printing and paper trading. Its registered office is located at Kunnamkulam in Thirussur District. The petitioner's establishment is covered under the provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952. The second respondent herein, a former employee of the petitioner, filed a complaint contending that though the employee's share of contribution was deducted from the month of April, 1999 onwards, he was enrolled as a member only with effect from 1.10.2003. He also raised various other contentions. Upon receipt of the said complaint, the first respondent issued Ext.P1 notice dated 22.7.2010 inviting the petitioner to attend an enquiry that was scheduled to be held on 16.8.2010. A copy of Ext.P1 notice was also sent to the complainant. Upon receipt of Ext.P1 notice, the petitioner sent Ext.P2 letter dated 11.8.2010 by registered post to the first respondent requesting him to adjourn the hearing by one month. The petitioner states that though the first respondent received the original of Ext.P2 on 13.8.2010, he proceeded to pass Ext.P4 order on 19.10.2010 wherein it is stated that notwithstanding the service of notice, the employer failed to attend the W.P.(C) No.3808 of 2011 2 enquiry and did not make a request for adjournment. 2. A copy of Ext.P4 order was served on the petitioner on 22.10.2010. The petitioner thereupon sent Ext.P5 letter dated 29.10.2010 to the first respondent wherein after referring to Ext.P4 order, the petitioner stated that they have not so far received a copy of the complaint filed by the second respondent. By that letter, the petitioner also requested the first respondent to furnish a copy of the complaint filed by the second respondent. The first respondent thereupon sent Ext.P6 reply dated 6.1.2011 stating that the request of the petitioner cannot be considered. The petitioner was also called upon to remit the amount assessed as per Ext.P4. Ext.P4 is under challenge in this writ petition. The main ground raised in this writ petition is that the statement in Ext.P4 that no request for adjournment has been made is factually incorrect and the respondent proceeded to pass the impugned order notwithstanding the receipt of request of adjournment. 3. The first respondent has filed a counter affidavit wherein it is contended that if the petitioner is aggrieved by Ext.P4 order, his remedy is to file an appeal under section 7(I) of the Employees Provident Funds and Miscellaneous Provisions Act or an application for review under section 7(B) thereof. However, the first W.P.(C) No.3808 of 2011 3 respondent has not denied the averment made by the petitioner that a request for adjournment was made and the same had been received in the office of the first respondent before the impugned order was passed. The counter affidavit further proceeds to state that it is evident from the non appearance of the employer even after service of notice that the employer does not have any valid explanation for the omission to enroll the second respondent as a member of the employees provident fund. It is also stated that no request for adjournment was brought to the notice of the first respondent. The second respondent has filed a counter affidavit supporting the stand taken by the first respondent. 4. I have considered the rival submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. It is evident from Ext.P4 order passed by the first respondent that the first respondent proceeded on the basis that no request for adjournment had been made by the petitioner. A reading of paragraphs 3 and 4 of Ext.P4 order would indicate that if a request for adjournment had been received, the first respondent would have certainly acted on that. That apart, the fact that the petitioner's establishment is covered by the Employees Provident Funds and Miscellaneous Provisions Act is W.P.(C) No.3808 of 2011 4 not in dispute. Ext.P1 notice was issued upon receipt of a complaint dated 5.10.2009 filed by the second respondent, a former employee of the petitioner. A copy of the complaint had not admittedly been served on the petitioner. After the enactment of the Right to Information Act, 2005 even a third party could have obtained from the first respondent a copy of the complaint filed by the second respondent. If that be so, the first respondent could not have legitimately denied to the petitioner a copy of the complaint filed by the second respondent. In such circumstances, I am of the opinion that the petitioner is entitled to have an opportunity to have the copy of the complaint served on him and to file a statement answering the complaint against him. Such being the situation, I find no force in the contention of the first respondent that the petitioner ought to have availed the alternate remedy available to him. Fairness required that a copy of the complaint pursuant to which Ext.P1 noticed was issued should have been served on the petitioner. That having not been done, on the merits also, the petitioner is entitled to succeed. The first respondent, an officer of the Employees' Provident Fund Organisation, a statutory functionary and a public authority cannot decline to furnish to employers or employees, relevant materials on the basis of which he proposes to act. For the reasons stated above, I W.P.(C) No.3808 of 2011 5 am of the opinion that Exts.P4 and P6 cannot be sustained. I accordingly allow the writ petition, quash Exts.P4 and P6 and direct the first respondent to pass revised orders pursuant to Ext.P1 notice after furnishing to the petitioner a copy of the complaint dated 5.10.2009 filed by the second respondent and after affording the petitioner an opportunity to rebut the allegations therein. The first respondent shall ensure that the petitioner is given atleast 14 days clear notice of the enquiry before proceeding to pass fresh orders in the matter. The petitioner shall needless to say co-operate with the enquiry which shall be finalised expeditiously and in any event within three months from the date of receipt of a copy of this judgment. The contentions of both sides on the merits are kept open. P.N. RAVINDRAN, JUDGE. nj.