IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 WP(C).No. 24018 of 2011(B) -------------------------- PETITIONER(S): --------------- M/S.HAILEYBURIA TEA ESTATE LIMITED SEMINIVALLEY ESTATE, ELAPPARA PO,IDUKKI DISTRICT 685 501, REPRESENTED BY ITS GENERAL FINANCE AND ACCOUNTS MR.B.MOHAN PRABHU. BY ADV. SRI.V.ABRAHAM MARKOS SRI.MATHEWS K.UTHUPPACHAN SRI.BINU MATHEW SRI.TERRY V.JAMES SRI.B.J.JOHN PRAKASH SRI.TOM THOMAS (KAKKUZHIYIL) RESPONDENT(S): --------------- 1. THE REGIONAL PROVIDENT FUND COMMISSIONER EMPLOYEES PROVIDENT FUND ORGANIZATION SUB REGIONAL OFFICE, CHALAKUZHY BUILDING, CMS COLLEGE ROAD, KOTTAYAM 686 001. 2. THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, REPRSENTED BY ITS REGISTRAR MINISTRY OF LABOUR AND EMPLOYEMENT, GOVERNMENT OF INDIA, SCOPE MINAR, CORE-11 4TH FLOOR, LAXMI NAGAR DISTRICT CENTRE,LAXMI NAGAR, NEW DELHI 110N 092. BY SRI.JOY THATTIL ITOOP, SC FOR FIRST RESPONDENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.24018 of 2011 EXT.P1 TRUE COPY OF THE NOTICE OF THE LOCK OUT DT. 12.1.2003 EXT.P2 TRUE COPY OF NOTICE DATED 15.4.2004 FOR LIFTING THE LOCK OUT. EXT.P3 TRUE COPY OF THE ANNUAL REPORT OF THE PETITIONER COMPANY FOR THE YEAR 2006-07 EXT.P4 TRUE COPY OF THE CERTIFICATE ISSUED BY THE INDIAN BANK, ERNAKULAM MAIN BRANCH DATED 14.12.2006 EXT.P5 TRUE COPY OF THE LETTER ISSUED BY THE FIRST RESPONDENT VIDE NO. KR/KTM/48&49/Enf.1(3)03 6632 DATED 22.7.2003 EXT.P6 TRUE COPY OF THE GOVERNMENT ORDER DATED 2.6.2004 EXT.P7 TRUE COPY OF THE ORDER DATED 29.2.2008 UNDER SECTION 14B OF THE EPF & MP ACT, 1952 ISSUED BY THE FIRST RESPONDENT. EXT.P8 TRUE COPY OF THE ORDER DATED 29.2.2008 UNDER SECTION 7Q OF THE EPF & MP ACT, 1952 ISSUED BY THE FIRST RESPONDENT. EXT.P9 TRUE COPY OF THE LETTER DATED 19.3.2008 FROM THE PETITIONER TO THE FIRST RESPONDENT. EXT.P10 TRUE COPY OF THE APPEAL NO.ATA.364(7)/2008 DATED 20.4.2008 FILED BY THE PETITIONER BEFORE THE SECOND RESPONDENT. EXT.P11TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE FIRST RESPONDENT BEFORE THE SECOND RESPONDENT IN APPEAL NO.ATA.364(7)/2008 EXT.P12 TRUE COPY OF THE ORDER DATED 2.5.2011 PASSED BY THE SECOND RESPONDENT IN APPEAL NO. ATA.364(7)/2008 EXT.P13 TRUE COPY OF THE RESTORATION APPLICATION DATED 17.6.2011 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN APPEAL NO. ATA.364(7)/2008 EXT.P14 TRUE COPY OF THE ORDER DATED 5.7.2011 PASSED BY THE SECOND RESPONDENT IN APPEAL NO. ATA.364(7)/2008 EXT.P15 TRUE COPY OF THE ORDER DATED 18.1.2011 PASSED BY THE SECOND RESPONDENT IN APPEAL NO. ATA.216(7)/2008 EXT.P16 TRUE COPY OF THE ORDER DATED 19.1.2011 PASSED BY THE SECOND RESPONDENT IN APPEAL NO.ATA.88(7)/2008 //TRUE COPY// P.A. TO JUDGE. P.N. RAVINDRAN, J. ------------------------------- W.P(C) No.24018 of 2011 ------------------------------- Dated this the 5th day of September, 2011 J U D G M E N T Ext.P7 order passed by the first respondent under section 14B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as 'the Act' for short) levying damages, Ext.P12 order passed by the Employees' Provident Fund Appellate Tribunal dismissing the appeal filed from that order and Ext.P14 order passed by the Employees' Provident Fund Appellate Tribunal dismissing the application filed by the petitioner to restore the said appeal to file and to re-hear it, are under challenge in this writ petition. The brief facts of the case are as follows. 2. By Ext.P7 order dated 29.2.2008 passed under section 14B of the Act, the first respondent levied the sum of Rs.1,74,648/- as damages for the period from 3/2006 to 2/2007. By Ext.P8 order passed on 29.2.2008, the first respondent also directed payment of the sum of Rs.69,399/- as interest under section 7Q of the Act. Aggrieved by Ext.P7 order, the petitioner filed Ext.P10 appeal before the Employees' Provident Fund Appellate Tribunal. In that appeal, the Employees Provident Fund organisation filed Ext.P11 statement. Thereafter, the case stood posted, according to the petitioner, on W.P.(C) No.24018/2011 2 13.12.2010. The petitioner states that, on that day, the Tribunal directed that the appeal be posted for hearing on 20.1.2011, that thereafter the case was adjourned to 8.4.2011 and on 8.4.2011, since the appellant did not appear for want of notice of hearing, the respondent in the appeal was heard, orders reserved and thereafter Ext.P12 order was passed on 2.5.2011 dismissing the appeal. Though the petitioner filed Ext.P13 application to restore the appeal to file, the said application was dismissed by Ext.P14 order passed on 5.7.2011. Exts.P12 and P14 orders are under challenge in this writ petition. 3. The main contention raised by the petitioner is that the petitioner-appellant was not given notice of the hearing on 8.4.2011, that similar cases wherein the same issue had been raised were allowed by the Employees' Provident Fund Appellate Tribunal, that Ext.P12 itself discloses that the appellant was not heard before the order was passed and in such circumstances, the Tribunal ought to have treated the application for restoration as an application for review, allowed the application, heard the appellant and thereafter passed revised orders on the appeal. 4. I heard Sri.Terry.V.James, learned counsel appearing W.P.(C) No.24018/2011 3 for the petitioner and Sri.Joy Thattil Itoop, learned standing counsel appearing for the Employees' Provident Fund Organisation. It is evident from Ext.P12 order passed on 2.5.2011 that the appellant was not heard on 8.4.2011, the date fixed for hearing. Though the petitioner applied for restoration of the appeal after setting aside the order passed on 2.5.2011, which the petitioner understood an order dismissing the appeal for default, the Appellate Tribunal took the view that the respondent was heard and a decision was taken on merits and the appeal was not dismissed for default. In my opinion, as the order dismissing the appeal was passed without hearing the petitioner, the Appellate Tribunal ought to have treated Ext.P13 application as one for review of Ext.P12 order, allowed the application, heard the appellant and pass fresh orders on the appeal, and therefore the impugned orders, Exts.P12 and P14 cannot be sustained. I accordingly allow the writ petition, set aside Exts.P12 and P14 orders, restore ATA.No.364(7)/2008 to file and direct the Employees' Provident Fund Appellate Tribunal to pass fresh orders on the appeal, after affording the appellant and the respondent in the W.P.(C) No.24018/2011 4 appeal an opportunity of being heard, expeditiously and in any event within three months from the date of receipt of a copy of this judgment. Until then, the status quo as on today shall be maintained. Needless to say, the Appellate Tribunal shall give at least two weeks prior notice of hearing to the appellant and the respondent. P.N. RAVINDRAN, JUDGE. nj. P.N.RAVINDRAN, J. -------------------------------------- W.P.(C) No.24018 of 2011 JUDGMENT Dated:- 5th September, 2011 --------------------------------------