IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 WP(C).No. 27040 of 2010(D) --------------------------------------- PETITIONER: ------------------- MANGALAM PUBLICATIONS (INDIA) PVT.LTD., MANGALAM COMPLEX, P.B.NO-3,S.H.MOUNT P.O., KOTTAYAM - 6,REP.BY ITS DIRECTOR. BY ADVS. SRI.E.K.MADHAVAN, SMT.P.VIJAYAMMA, SRI.V.KRISHNA MENON, SRI.U.K.DEVIDAS. RESPONDENTS: ------------------------ 1. THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, SCOPE MINAR, CORE-II, 4TH FLOOR, LAXMI NAGAR DISTRICT CENTRE, NEW DELHI-110 092, 2. THE REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANIZATION, SUB REGIONAL OFFICE,KOTTAYAM-1 3. THE ASSISTANT PROVIDENT FUND COMMISSIONER,EMPLOYEES PROVIDENT FUND ORGANIZATION, SUB REGIONAL OFFICE, KOTTAYAM-1. 4. SUNNY THOMAS, KARUVAKUNNEL HOUSE, AMALAGIRI,P.O.KOTTAYAM-36. 5. K.M.BABU, KAYATHIL PARAMBIL KUMARANALLOOR P.O.,KOTTAYAM -4. R2 & R3 BY ADV. SRI.JOY THATTIL ITOOP, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.27040 OF 2010 -------------------------------------------- Dated this the 3rd day of September, 2010 JUDGMENT The petitioner's establishment is covered under the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (for short 'the P.F Act' only). Based on the notification issued by the Central Government, interim relief was paid, at the rate of 20% of the basic wages along with an additional amount of Rs.100/- per month, to the working journalists and non-journalists under the petitioner's establishment. It was paid with effect from 20.4.1995. Later, a notice under Section 7 A of the P.F Act was issued to the petitioner by the third respondent holding that the establishment was liable to pay provident fund contribution on the aforesaid interim reliefs and steps were taken to determine the amount on that count. As per Ext.P1, the amount was determined. The said proceedings and the consequential challenge against such proceedings were subject matters of litigation before this Court. In view of the order I propose to pass in this Writ Petition I do not think it necessary to make a probe into those matters. The present grievance of the petitioner is with W.P.(C) NO.27040/2010 2 respect to Exts.P1 and P2 orders passed by the third respondent and Exts.P7 and P9 orders of the first respondent as also the coercive action proposed to be taken by the second respondent as per Ext.P10. Ext.P7 is the order passed by the Employees Appellate Tribunal on the appeal preferred by the petitioner before the Tribunal. Contending that the issue involved in the matter was not actually considered by the Tribunal and raising such other contentions, Ext.P8 review petition under Section 7L(2) of the P.F.Act was preferred by the petitioner before the Tribunal. That was dismissed by the Tribunal as per Ext.P9 order and subsequently, Ext.P10 notice was issued to the Managing Director of the establishment to show cause why he should not be arrested and committed to Civil Prison in execution of Certificate No.KR/KTM/5975/Enfl(1)/02 dated 5.4.02 forwarded by the Authorised Officer under Section 8(c)(1) of the P.F Act. 2. In the context of the challenge against Ext.P7, it is relevant to look into Ext.P6 judgment of this Court. A bare perusal of Ext.P6 judgment would reveal that in the light of the same, the first respondent should have considered the appeal on merits and in fact, should have considered the real issue involved in this matter. A scanning of Ext.P7 order would reveal that the said issue ie., whether the petitioner's W.P.(C) NO.27040/2010 3 establishment was liable to pay provident fund contribution on the aforesaid interim reliefs paid to working journalists and non-journalists based on notifications of the Central Government was not actually considered and decided after adverting to the rival contentions on the issue. A liability can be fastened on the petitioner only after such proper adjudication of the said issue especially in the light of Ext.P6 judgment. In the light of Ext.P6 judgment and in view of the fact that the said issue was not considered as per Ext.P7, I am of the view that Ext.P7 is liable to be set aside for the purpose of enabling the Appellate Tribunal to consider the appeal on merits. Accordingly, Exts.P7, P9 and consequential order of the second respondent proposing further action for failure to make payment of arrears specified in the certificate dated 5.4.02 made as per Ext.P10, are set aside. The first respondent is directed to consider Ext.P3 appeal preferred by the petitioner against Exts.P1 and P2 orders on merits and in accordance with law, with notice to the parties, and till such time, no coercive steps pursuant to Exts.P1 and P2 shall be taken. 3. The next question to be considered is whether the petitioner should be compelled to make pre-deposit of 75% of the amount covered as per Ext.P1. In that context, Ext.P6 judgment assumes relevance. While disposing of W.P.(C).No.26157/2005, this Court issued a direction as W.P.(C) NO.27040/2010 4 hereunder: “The third respondent is directed to retain the amount if any already recovered as mentioned in 3rd para in the Writ Petition, and the same shall be adjusted on the basis of the final outcome of the appeal”. It is not in dispute that based on a direction of the third respondent, the UTI Bank Ltd., Kottayam has paid an amount of Rs.1,33,063.87/- from the Current Account of the petitioner to the third respondent against the provident fund contribution. In view of Ext.P6 judgment, the third respondent is entitled to retain the said amount and the same could be adjusted based on the final outcome of the appeal. When that be the position, I do not think it necessary to direct the petitioner to deposit any further amount towards the amount covered as per Ext.P1 at this stage. The petitioner shall produce a copy of this judgment before the first respondent to enable the first respondent to take up Ext.P3 appeal and consider it on merits in terms of the directions. The Writ Petition is accordingly disposed of. (C.T. RAVIKUMAR, JUDGE) spc //true copy// P.A. to Judge. W.P.(C) NO.27040/2010 5 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.27040/2010 6