IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY FRIDAY, THE 26TH NOVEMBER 2010 / 5TH AGRAHAYANA 1932 WA.No. 703 of 2010() -------------------- AGAINST THE JUDGEMENT/ IN WPC.1004/2010 Dated 25/01/2010 .................... APPELLANT/IST RESPONDENT ---------------------------- THE REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, SUB REGIONAL OFFICE, MANNANNIA COMPLEX, CHINNAKKADA, KOLLAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENTS/PETITIONER & 2ND RESPONDENT ------------------------------------------ 1. THE KERALA STATE CASHEW DEVELOPMENT CORPORATION LTD., CASHEW HOUSE, P.B.NO.13, KOLLAM. 2. THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, NEW DELHI. ADV. SRI.C.UNNIKRISHNAN, SC, FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26/11/2010, ALONG WITH WPC NO. 16538 OF 2010, WPC NO.9818 OF 2010, WPC NO. 18204 OF 2010 & WPC NO. 21614 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ. .................................................................... Writ Appeal No.703 of 2010 & W.P.(C) Nos.9818, 16538, 18204 & 21614 of 2010 .................................................................... Dated this the 26th day of November, 2010. JUDGMENT Ramachandran Nair, J. The dispute between the parties pertains to the demand of Provident Fund contribution by the Regional Provident Fund Commissioner from the Kerala State Cashew Development Corporation which is a Government undertaking. There is dispute as to whether the employees in respect of whom demand is made are regular employees or trainees. This is a factual position which the Tribunal is free to go into and decide in the appeals filed by the Corporation. In between the Corporation approached this court challenging the orders of the Tribunal directing payment of 40% as a condition for maintainability of appeal as provided under proviso to Section 7(O) of the Employees Provident Funds and Miscellaneous Provisions Act. The learned Single Judge vacated the order of the Tribunal holding that Tribunal is bound to give reasons in support of order issued under proviso to W.A. 703/10 & conn. 2 Section 7(O). The judgment of the learned Single Judge remanding the matter back to the Tribunal is under challenge in the Writ Appeal filed by the Regional Provident Fund Commissioner. We do not find any merit in the Writ Appeal because admittedly the order issued by the Tribunal directing payment of 40% is not supported by any reasons. In fact, proviso makes it very clear that an order dispensing with payment in part or full should be passed only based on reasons. An order issued by the Tribunal could be challenged by both parties for the reason that it is not supported by any reasons. Senior counsel appearing for the Corporation today produced before us order dated 23.6.2010 passed by the Tribunal dispensing with full payment which means that appeal is maintainable without pre-deposit of the amount demanded. It is seen from the Tribunal's order that Tribunal has followed the judgment of the Supreme Court and has also considered the financial position of the Corporation which is not even able to clear the gratuity liability due to retired employees. If the statement of the Tribunal with regard to the financial position of the Corporation is correct, then the order of the Tribunal issued pursuant to judgment of this court on 23.6.2010 is perfectly tenable. We, therefore, find no merit in the Writ Appeal and the same is dismissed. W.A. 703/10 & conn. 3 2. So far as the W.P.(C)s are concerned, the reasons stated by the Tribunal in their order dated 23.6.2010 are sufficient to entitle the Corporation to get full waiver of payment of Provident Fund arrears demanded which is under contest in appeals pending before the Tribunal. We, therefore, dispose of the writ petitions by waiving the condition for deposit of the Provident Fund arrears demanded for maintainability of appeals with direction to the Tribunal to dispose of all the appeals after hearing both sides and after perusing records and if necessary, after taking evidence at the earliest and in any case within a period of four months from today. The Corporation's claim for refund also cannot be granted because of the huge demand outstanding against it. Therefore, the claim for refund by the Corporation will be considered after Tribunal passes final orders in the matter. C.N.RAMACHANDRAN NAIR Judge BHABANI PRASAD RAY Judge pms