IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 WP(C).No. 33232 of 2010(D) -------------------------------------- PETITIONER: ------------------- N.NANDAKUMAR, MANAGING PARTNER, SHASTHA ENTERPRISES, BEACH ROAD, KOLLAM-691 001. BY ADV. SRI.B.SURESH KUMAR. RESPONDENTS: ------------------------ 1. THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, NEW DELHI. 2. THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES' PROVIDENT FUND ORGANISATION, MANNANIYA COMPLEX, ANDAMUKKAM, KOLLAM-691 001. 3. THE ENFORCEMENT OFFICER, EMPLOYEES PROVIDENT FUND ORGANISATION MANNANIYA COMPLEX, ANDAMUKKAM, KOLLAM-691 001. R2 & R3 BY ADV. SRI.V.V.SURESH,SC,EPF.ORGANISATION. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/11/2010, ALONG WITH W.P.(C). NO. 33358 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.T.RAVIKUMAR, J. --------------------------------------- W.P(C)No.33232 & 33358 of 2010 ---------------------------------------- Dated 15th November, 2010 JUDGMENT Both these writ petitions are filed by the Managing Partner of M/s.Shastha Enterprises which is having 10 cashew factories in Kerala. In the former writ petition Ext.P1 order dated 11.5.2010 is the order passed on enquiry under Section 7A of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (for short `the EPF Act') in respect of M/s.Sastha Enterprises, Onambalam, East Kallada. In respect of the said case, outstanding dues in respect of non-enrollment of three employees for the period from May, 2008 to February, 2010, non- remittance of dues on holiday wages for the period from May, 2008 to January, 2010 and short remittance of dues for the period from May, 2008 to December, 2009 were determined on the basis of the inspection reports of the Enforcement Officer, reserving the right to assess the escaped amount, if any, as and when noticed under Section 7C of the EPF Act. An amount of Rs.10,29,377/- was assessed exclusive of the penal damages leviable under section 14B of the EPF Act and amount recoverable as interest under Section 7Q of the Act. Against the same, the petitioner has preferred Ext.P2 appeal. Ext.P3 is the order passed by the Appellate Tribunal on 17.9.2010 requiring the petitioner to deposit WP(C).Nos.33232 & 33358/2010 2 30% of the assessed amount as per the impugned order within a period of two months as a condition for consideration of the appeal and also for granting stay of the impugned order. It is the said order which is challenged in W.P.(C)No.33232 of 2010. 2. In the latter writ petition, pursuant to an enquiry under section 7A of the EPF Act in respect of M/s.Sastha Enterprises, Cheerankavu, Kollam the assessing authority directed the petitioner to remit an amount of Rs.7,68,125.35 exclusive of the penal damages leviable under section 14B of the EPF Act and the amount recoverable as interest under section 7Q of the EPF Act. The said order was taken up in appeal through Ext.P2 therein and Ext.P3 is the order passed by the Appellate Tribunal on 17.9.2010. As per Ext.P3 therein the petitioner was directed to deposit 30% of the assessed amount as per the impugned order within two months as a condition for consideration of the appeal and granting of stay of the impugned order. Ext.P3 is assailed in W.P.(C)No.33358 of 2010. It is thus obvious that in these writ petitions the orders passed by the Employees' Provident Fund Appellate Tribunal directing deposit of 30% of the assessed amount as per the respective impugned assessment orders as a pre-condition for consideration of the appeals and granting of stay of the assessment orders, are under challenge. WP(C).Nos.33232 & 33358/2010 3 3. I have heard the learned counsel appearing for the petitioner and also the learned standing counsel appearing for respondents 2 and 3. 4. A perusal of the contentions raised in the former writ petition would reveal that the petitioner has in fact, remitted the entire amount assessed based on his own assessment. In fact, Exts.P5 to P26 produced therein would reveal that the petitioner has remitted an amount of Rs.39,87,983/- as contribution based on his own assessment under section 6 of the EPF Act. True that, the assessing authority entered into the finding that the petitioner has failed to enroll three employees and there is short remittance for the period from May, 2008 to December, 2009. Considering the facts that the petitioner has already remitted an amount of Rs.39,87,983/- and that the amount now under dispute in the appeal is only an amount of Rs.10,29,377/- and also the contention that the entire records kept in the ordinary course of business of the petitioner's factory were not taken into consideration before arriving at the conclusion that three employees were not actually enrolled and there is short remittance, I am of the view that in respect of the former writ petition the condition for pre-deposit ought to have been waived. In the said circumstances, Ext.P3 order in the former writ petition viz., W.P.(C)No.33232 of 2010 WP(C).Nos.33232 & 33358/2010 4 is set aside and the first respondent is directed to consider the appeal on merits without insisting pre-deposit. In the latter writ petition, Ext.P1 is the order of assessment. As per the same an amount of Rs.7,68,125.35 was directed to be remitted. It is, in fact, in respect of another factory belonging to the petitioner. Admittedly, an amount of Rs.24,167/- alone was remitted by the petitioner as contribution payable based on his own assessment under section 6 of the EPF Act which is far less than the amount which is directed to be remitted as per Ext.P1, viz., Rs.7,68,125.35. No ground whatsoever has been made out for interfering with the order for pre-deposit in Ext.P3. I am of the view that the third respondent cannot be said to be at fault in directing the petitioner to deposit 30% of the assessed amount as a pre-deposit for consideration of the appeal and also granting of stay of the assessment order. There is no merit in this writ petition and accordingly, it is dismissed. C.T.RAVIKUMAR Judge TKS