IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 14TH OCTOBER 2010 / 22ND ASWINA 1932 WP(C).No. 31210 of 2010(A) -------------------------- PETITIONER: --------------- B.VIJAYAKUMAR, PROPRIETOR, M/S. SECURITY AND PROTECTIVE SERVICES, CHENTHITTA, THIRUVANANTHAPURAM. BY ADV. SMT.A.K.PREETHA SRI.ANIL NARAYANAN RESPONDENT(S): --------------- 1. EMPLYEES PROVIDENT FUND APPELLATE TRIBUNAL CORE-2, 4TH FLOOR, SCOPE MINAR, LAXMI NAGAR, NEW DELHI-110092. 2. EMPLOYEES PROVIDENT FUND ORGANIZATION, REGIONAL OFFICE, BHAVISHYA NIDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695004 REPRESENTED BY THE REGIONAL PROVIDENT FUND COMMISSIONER. 3. THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANIZATION, REGIONAL OFFICE, BHAVISHYA NIDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695004. BY ADV.SHRI T.N.GIRIJA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.T.RAVIKUMAR, J ------------------------- WP(C) NO. 31210 OF 2010 ------------------------------------- Dated this the 14th day of October, 2010 JUDGMENT The petitioner is the proprietor of M/s. Security and Protective Services, Cherthala. Ext.P1 order of assessment was passed against the petitioner under Section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for short 'the Act'), directing him to remit an amount of Rs.4,30,979.40/- as contribution payable for the period from 3/06 to 5/08. Feeling aggrieved by Ext.P1 order, the petitioner preferred a review petition under Section 7B of the Act. But, the same was dismissed. Ultimately, Ext.P3 appeal was preferred before the appellate authority. Along with Ext.P3 an application for waiver of the condition of pre- deposit and another application for staying the operation of the assessment order, were filed. The said appeal and the interlocutory applications were taken up for consideration and Ext.P4 order was passed by the appellate authority whereby 30% of the assessed amount was directed to be remitted towards pre-deposit as a condition for staying the assessment WPC.31210/2010 : 2 : order while admitting the appeal. It is challenging the said order viz., Ext.P4 that this writ petition has been filed. 2. In this context, it is relevant to refer to 7-0 of the EPF Act which reads thus:- “No appeal by the employer shall be entertained by a Tribunal unless he has deposited with it seventy-five per cent of the amount due from him as determined by an officer referred to in section 7A: Provided that the Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section. A perusal of the above provision would undoubtedly reveal that to entertain an appeal against an assessment order an appellant has to deposit 75% of the assessed amount and that is the rule and the waiver or the reduction is the exception which could be ordered for reasons to be recorded in writing. In this case, the appellate authority after considering the application for waiver and taking into consideration the contentions of the petitioner passed Ext.P4 order fixing the amount of pre-deposit as 30% of the assessed amount. The question is whether Ext.P4 order is too perverse to invite interference. The contention of the petitioner is that security service is not a scheduled employment and therefore, WPC.31210/2010 : 3 : the basis of the assessment is unsustainable. The further contention is that Ext.P4 is a stereotyped order. With respect to the contention that Ext.P4 is a stereotyped order a bare perusal of Ext.P4 itself would undoubtedly reveal the hollowness of the said contention. It, indeed, is an order passed with application of mind. With respect to the other contention that security service is not a scheduled employment and therefore, the basis of the assessment is unsustainable. I am of the considered view that it is a matter to be urged and decided in the appeal. At any rate, that cannot be a reason for interfering with Ext.P4 order. Evidently, the assessing authority found the establishment as one covered under the schedule head “Establishment rendering expert service such as supply of personnel advice or domestic or departmental inquiries, special service in rectifying pilferage as per GSR No.731 dated 17.05.1971”. For the forgoing reasons I am of the view that this writ petition lacks merit and accordingly, it is liable to be dismissed. However, it is made clear that in case, the petitioner pays the amount ordered to be paid in terms of Ext.P4 within a period WPC.31210/2010 : 4 : of two months from today, it should be deemed as compliance with the condition in Ext.P4 order and in which event, the appellate authority shall proceed to consider the appeal on merits. Subject to the above, this writ petition is dismissed. Sd/- C.T.RAVIKUMAR JUDGE jma //true copy// P.A to Judge