IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 WP(C).No. 19429 of 2010(C) --------------------------------------- PETITIONER(S): ----------------------- THE QUILON DISTRICT ENGINEERING TECHNICIANS INDUSTRIAL (WORKSHOP) CO-OPERATIVE SOCIETY LTD., (QETCOS),REPRESENTED BY ITS MANAGING DIRECTOR, INDUSTRIAL ESTATE P.O. UMAYANALLOOR, KOLLAM DISTRICT, PIN-691589. BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND RESPONDENT(S): -------------------------- 1. THE REGIONAL PROVIDENT FUND COMMISSIONR, EMPLOYEES' PROVIDENT FUND ORGANISTION, SUB REGIONAL OFFICE, KOLLAM. 2. THE RECOVERY OFFICER, EMPLOYEES' PROVIDENT FUND ORGANISTION, SUB REGIONAL OFFICE, KOLLAM. 3. KOLLAM DISTRICT CO-OPERATIVE BANK LTD., REPRESENTED BY ITS GENERAL MANAGER, HEAD OFFICE, KOLLAM. * ADDL.R4 TO R13 IMPLEADED ADDL.R4: PARAMESWARAN NAIR, S/O.ACHUTHA KURUP, AGED 62 YEARS, SREE BHAVAN, THATTAMALA P.O., KOLLAM 691020. ADDL.R5: CHANDRA MOHANAN PILLAI, S/O. RAKHAVAN PILLAI, AGED 64 YEARS, NIRMALYAM, THEKKEVILA P.O., KOLLAM 691016. sts WP(C)NO.19429/2010 ADDL.R6: B.GOPINATHAN PILLAI, AGED 63 YEARS, S/O. N.BALAKRISHNA PILLAI, KRISHNA BHAVAN, CHEMMAKKAD.P.O., PERINAD, KOLLAM-691 601. ADDL.R7: K.PRABHAKARAN PILLAI, AGED 61 YEARS, S/O. KUNJAN PILLAI, PUTHUPPALLIL KIZHAKKATHIL, THURUTHIKKARA.P.O., KUNNATHOOR EAST (VIA) 690 540. ADDL.R8: G.RADHAKRISHNAN NAIR, AGED 61 YEARS, S/O. GOPALAN NAIR, AISWARAYA, VADAKKUMTHALA EAST P.O., KARUNAGAPPALLY. ADDL.R9: RAJASEKHARAN NAIR, AGED 59 YEARS, S/O. CHANDRASEKHARAN NAIR, CHANDRAMANGALAM, PAVITHRESWARAM P.O., KOTTARAKKARA 691 624. ADDL.R10: MURALEEDHARAN PILLAI.K., AGED 60 YEARS, S/O. KUNJU PILLAI, SEENA BHAVANAM, MUKHATHALA P.O., THRIKKOVILVATTOM, 691 577. ADDL.R11: GEORGE G.L., AGED 60 YEARS, S/O. LAZER, KALLUVILA, KANNANALLOOR P.O., 691 576. ADDL.R12: GEORGE.M., AGED 61 YEARS, S/O. K. MATHAI, THUNDUVILA, AMPALATHINKALA P.O., EZHUKONE, KOLLAM. 691 505. ADDL.R13: BAHULEYAN.S., AGED 60 YEARS, S/O. SREEDHARAN, ASWATHY, NEAR ANCHUKOIKKAL TEMPLE, THATTAMALA.P.O., KOLLAM. 691 020 * ADDL.R4 AND R13 ARE IMPLEADED VIDE ORDER DATED 7/7/2010 IN I.A.NO. 9216/2010. * ADDL.R14 AND R15 IMPLEADED * ADDLR14: ANILKUMAR.H, AGED 40 YEARS, S/O.HARIDAS, ANIL NIVAS, HOUSE NO.132, SREENAGAR, VADAKKEVILA, KOLLAM. ADDL.R15: SHAMEER, S/O.SHARAFUDEEN, THACHANTAZHIKOM, UMAYANALLOOR.P.O., KOLLAM. *ADDL.R14 AND R15 ARE IMPLEADED VIDE ORDER DATED 10/8/2010 IN I.A.NO.10389/2010. R1 & R2 BY ADV.SRI.V.V.SURESH,SC,EPF.ORGANISATION R3 BY ADV. SRI.M.K.CHANDRA MOHANDAS ADDL. R4 TO R13 BY ADV. SRI.V.JAYAPRADEEP SRI.E.SHANAVASKHAN ADDL. R14 & R15 BY ADV.SRI. K.SIJU KAMALASANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/10/2010, ALONG WITH WP(C) NO.28804/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C) NO. 19429/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE LETTER NO.QL/01/EPF/09 DATED 14/5/2009 OF THE PETITIONER. P2 COPY OF THE BANK GUARANTEE DATED 08/05/2009. P3 COPY OF THE JUDGMENT IN WP(C)NO.13808/2009 (U) DATED 17/06/2009 OF THE HON'BLE HIGH COURT OF KERALA. P4 COPY OF THE LETTER NO.DLA&B(3) 2010-11/241 DATED 12/5/2010 OF THE 3RD RESPONDENT. P5 COPY OF THE LETTER NO.QL/01/REVIVAL /09 DATED 12/6/2010. P6 COPY OF THE LETTER NO.QL/01 REVIVAL/09 DATED 14/6/2010 TO THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: R3(A) COPY OF THE PROHIBITORY ORDER NO.KR/KLM/4210/RECOVERY/10 DATED 08/06/2010 ISSUED BY THE EMPLOYEES PROVIDENT FUND ORGANIZATION. R4(A) COPY OF THE COUNTER AFFIDAVIT IN WPC.NO. 13183/09. R4(B) COPY OF THE ADDITIONAL COUNTER AFFIDAVIT IN WPC.NO.13183/09. R4(C) COPY OF THE COMMUNICATION DTD. 26/5/2010 OBTAINED FROM CAPEX UNDER RTI. R4(D) COPY OF THE PAPER CUTTINGS DTD 9/6/10 & 21/5/10. R4(E) COPY OF THE LETTER DTD.13/7/10 OF THE 3RD RESPONDENT. R4(F) COPY OF THE REPRESENTATIONS, PRESS RELEASE AND PAPER CUTTINGS ON EVEN DATED. /TRUE COPY/ P.A.TO.JUDGE sts C.T. RAVIKUMAR, J. --------------------------------------------- W.P.(C). NOS.19429 & 28804 OF 2010 -------------------------------------------- Dated this the 11th day of October, 2010 JUDGMENT Common facts and issues involve in these Writ Petitions and therefore, they were heard jointly and are being disposed by this common judgment. 2. The Quilon District Engineering Technicians Industrial (Workshop) Co-operative Society Ltd. (QETCOS) is the petitioner in W.P. (C).NO.19429/2010. The petitioner in W.P.(C).NO.28804/2010 is a retired employee of the QETCOS. QETCOS is the second respondent therein. According to the petitioner in W.P.(C).NO.19429/2010, the Society was in the red and subsequently, a revival scheme was evolved. It is prayed therein, inter alia, for issuance of a writ of mandamus commanding the QETCOS to pay off all the amount due to him by way of arrears of salary, DCRG, PF etc. forthwith. In the former Writ Petition, QETCOS challenges the prohibitory order dated 9.6.2010 issued by the second respondent, Recovery Officer of the Employees Provident Fund Organisation by which the third respondent namely, the Kollam District Co-operative Bank Ltd., has been interdicted from releasing funds to W.P.(C) Nos.19429 & 28804/2010 2 QETCOS from the cash credit facility sanctioned as per Ext.P4. The further prayer is for issuance of a writ of mandamus commanding respondents 1 and 2 viz., the Commissioner and the Recovery Officer, of the Employees Provident Fund Commission to lift the prohibitory order issued against QETCOS, the petitioner and to direct the third respondent to make payments to QETCOS out of the cash credit facility sanctioned as per Ext.P4. 3. Ext.P1 in W.P.(C).NO.19429/2010 is relevant for the purpose of disposal of these Writ Petitions. It carries certain conditions as hereunder:- 1. Current contributions (both employees and employers share) shall be paid promptly and regularly on or before the stipulated dates. 2. The instalment amount shall also be remitted on or before the prescribed date along with current dues and chalan forwarded to your office. 3. A bank guarantee for an amount of Rs.4.00 lakhs (Rupees Four Lakhs only) equal to one instalment to the satisfaction of the Regional Provident Fund Commissioner has been furnished. 4. Contributions due in respect of outgoing/deceased shall be remitted in addition to the current dues and the amount of instalment. W.P.(C) Nos.19429 & 28804/2010 3 5. We undertake to pay such damages plus interest at the rate of 12% per annum on all belated remittances as may be levied by the Regional Provident Fund Commissioner in accordance with the provisions of section 14B/7Q of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. 6. The legal costs if any that may be determined by the Provident Fund Authorities shall be paid. 7. The instalment amount and the number of instalment can be decided by the competent authjority and shall be binding on us. 4. Admittedly, in terms of Ext.P1, QETCOS gave a bank guarantee to the first respondent, the Regional Provident Fund Commissioner. The period of the bank guarantee had expired on 30.9.2010. In Ext.P2, it has been stated thus:- “Notwithstanding anything contained in the foregoing, our liability hereunder is limited to a maximum of Rs.4.00 lakhs (Rupees Four lakhs only) and to a maximum period of 16 months expiring on 30th September 2010 after which date no claim will be entertained by us unless the guarantee has been extended by mutual agreement.” (emphasis supplied) W.P.(C) Nos.19429 & 28804/2010 4 A perusal of the above extracted portion from Ext.P2 would reveal that the guarantee is extendable by mutual agreement. Evidently, QETCOS and the first respondent therein are the parties referred to the said guarantee. When these Writ Petitions are taken up today, the learned counsel for the petitioner and also the learned standing counsel for the first respondent in the former Writ Petition, upon instructions, submitted that the petitioner and the first respondent have mutually agreed to extend the period of Ext.P2 guarantee and it would be kept alive till the entire arrears due to the petitioner are cleared. 5. Going by the conditions in Ext.P1, QETCOS has to pay the current contributions (both employees and employers share) and amount of instalments besides contributions due in respect of outgoing/deceased employees. Towards such contributions ie., including the current contribution and the contributions in due, the learned counsel for QETCOS submitted that the petitioner is prepared to pay Rs.4,00,000/- per month as agreed in Ext.P1. The learned counsel for the first respondent submitted that the petitioner may be directed to pay the same without any failure on or before tenth day of every month. The learned counsel for the W.P.(C) Nos.19429 & 28804/2010 5 first respondent also prayed that opportunity may be given to the first respondent to proceed against the petitioner in case of any failure on the part of the petitioner in making the contributions as agreed above. As already noticed, the petitioner in W.P.(C).NO.28804/2010 is a retired employee of the QETCOS and the learned counsel for the petitioner therein fairly submitted that the petitioner therein is also well wisher of QETCOS and did not want to do anything to ruin the industry and his main concern is only to get the amount due to him on his retirement. Admittedly, several employees of the QETCOS are yet to get their terminal benefits. Indisputably, the first respondent in W.P.(C).NO.19429/2010 has to disburse the benefits due under the Provident Fund Act to the employees, in accordance with law, reckoning the date of their retirement as directed in Ext.P3 judgment. In the light of Ext.P3 judgment, there cannot be any doubt with respect to the mode of disbursement of the amount once it is received by the first respondent. At the same time, based on the submission made by the learned counsel in the latter writ petition, this Court directed the first respondent to ascertain whether QETCOS has paid or any amount has been recovered from QETCOS towards the W.P.(C) Nos.19429 & 28804/2010 6 provident fund dues. Accordingly, the learned counsel for the first respondent, on instructions, submitted that already an amount of Rs.6,77,332/- has been recovered towards the Employees' Provident Fund dues in respect of the employees of QETCOS from 2002. The said amount is credited to the members' account and consequently, payment in respect of the retired employees of QETCOS would be made shortly, strictly in terms of Ext.P3 judgment referred above. It is further submitted that the retired employees were granted pension despite the fact that the establishment has not deposited the Pension Fund Contribution. In view of the above facts and submissions and also the understanding arrived at between the parties, I am inclined to dispose of this writ petitions as hereunder: QETCOS shall pay Rs.4,00,000/- per month on or before 10th day of every month commencing from the month of December, 2010 to the first respondent. It is made clear that in the case of failure on the part of QETCOS to effect payment as directed above, it will be open to the first respondent in W.P.(C).No.19429/2010 to initiate coercive steps for the realisation of the dues in accordance with law. Since the second W.P.(C) Nos.19429 & 28804/2010 7 respondent therein has issued prohibitory order dated 9.6.2010 to the third respondent interdicting the third respondent viz., the Kollam District Co- operative Bank Ltd., from releasing funds to the QETCOS from the cash credit facility sanctioned as per Ext.P4, there will be a further direction to the first and second respondents to issue appropriate orders lifting the prohibitory order dated 9.6.2010 and this shall be done within a period of one week from the date of receipt of a copy of the judgment. In view of the mutual consent recorded earlier, the parties to Ext.P2 bank guarantee shall see that its period is extended till the entire dues are cleared. Needless to say that in view of the above directions, respondents 1 and 2 in W.P.(C).NO.19429/2010 shall keep all coercive steps initiated against QETCOS in abeyance and they shall proceed against QETCOS only in case of failure to effect payment as mentioned above. Admittedly, the first respondent in W.P.(C).NO.19429/2010 has recovered an amount of 6,77,632/- towards the EPF dues in respect of the employees of QETCOS. The first respondent shall disburse the amount expeditiously at any rate, within a period of one month from the date of receipt of a copy of the judgment, in accordance with the directions in Ext.P3 judgment. Needless W.P.(C) Nos.19429 & 28804/2010 8 to say that in terms of the directions issued in W.P.(C).NO.19429/2010, as and when the petitioner effects payment, the same shall also be disbursed to the retired employees in terms of Ext.P3 judgment within one month from the date of remittance of the amount, in accordance with the provisions. Subject to the above observations, these writ petitions are disposed of. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) Nos.19429 & 28804/2010 9 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) Nos.19429 & 28804/2010 10