IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 WP(C).No. 20657 of 2011(F) ------------------------------------- PETITIONER(S): ----------------------- HOTEL SOUTH PARK, THE KERALA HOTELS PVT.LTD, M.G.ROAD, THIRUVANANTHAPURAM REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV. SRI.D.S.SREEKUMARAN SMT.T.S.MAYA (THIYADIL) RESPONDENT(S): ----------------------------- 1. THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANIZATION, REGIONAL OFFICE, KERALA, BHAVISHYANIDI BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004. 2. THE REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANIZATION, REGIONAL OFFICE, KERALA, BHAVISHYANIDI BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004. BY ADV. SRI.T.N.GIRIJA, SC EPF THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.20657/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE AFFIDAVIT PRODUCED BEFORE THE IST RESPONDENT DTD. 24.5.2011 ALONG WITH THE RELEVANT COPY OF THE STATUTE AND THE DECISION OF THE APEX COURT. P2:- COPY OF THE PROCEEDINGS DTD. 24.5.2011 BY THE IST RESPONDENT ALONG WITH COPY OF THE ENFORCEMENT OFFICER'S REPORT AND PART II INSPECTION REPORT. P3:- COPY OF THE SUBMISSION DTD. 16.6.2011 SUBMITTED BEFORE THE RESPONDENTS 1 AND 2. P4:- COPY OF THE PROCEEDINGS DTD. 16.6.2011 BY THE IST RESPONDENT RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 20657 OF 2011 -------------------------- Dated this the 28th day of July, 2011 J U D G M E N T Ext.P4 order passed by the first respondent under section 7A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as 'the Act' for short) is under challenge in this writ petition. Though a large number of contentions are raised, I am of the opinion that the petitioner should invoke the alternate remedy available to it under section 7 I of the Act. Ext.P4 order was passed on 16.6.2011. It was singed by the first respondent for communication on 8.7.2011 and the petitioner received it on 13.7.2011. By that order, after holding the petitioner liable to pay the sum of Rs.7,24,683/- towards contribution payable in respect of non enrolled employees and difference in the contribution payable in respect of another set of employees, the first respondent also directed the petitioner to pay the amount assessed within 15 days of receipt of the order, failing which it is stated that recovery steps in the manner prescribed in section 8B to 8G of the Act will be effected. Under rule 7 of the Employees Provident Fund Appellate Tribunal (Procedure) Rules, 1997 the period of limitation prescribed for filing an appeal under section 7-I of the Act is 60 days from the date of the order appealed against. A Division Bench of this Court has in Varghese v. R.T.O (1984 KLT 1082) interpreting the provisions contained in section WPC No.20657/2011 2 64A of the Motor Vehicles Act which stipulated that a revision petition in terms thereof shall be filed within 30 days from the date of the order, held that the words “the date of the order” must be understood as 30 days from the date of receipt of the order or actual or constructive knowledge of the impugned order. 2. In the instant case, though Ext.P4 order is dated 16.6.2011, it was singed by the first respondent for communication only on 8.7.2011, as can be seen from Ext.P4 itself and the petitioner received it on 13.7.2011. Therefore the period of limitation can run only from the date on which it was communicated to the petitioner. The said period, as per the averments in the writ petition, has not expired. That apart, though section 7-O of the Act stipulates that no appeal by the employer shall be entertained by the Tribunal unless the employer has deposited with it 75% of the amount due as determined by the officer referred to in section 7A , the proviso to section 7-O stipulates that the Tribunal may for reasons to be recorded in writing waive or reduce the amount to be deposited under section 7-O of the Act. The petitioner thus has a meaningful and alternate remedy by way of appeal wherein it can put forward all the contentions now raised in the writ petition. Such being the situation, I am of the opinion that the petitioner should invoke the alternate remedy available to it. I accordingly decline jurisdiction and dismiss the writ petition WPC No.20657/2011 3 reserving liberty with the petitioner to challenge Ext.P4 order in appeal before the Employees Provident Fund Appellate Tribunal. However, in order to enable the petitioner to invoke the jurisdiction of the Appellate Tribunal and move the Tribunal for waiver of pre-deposit or other appropriate interim orders, I am of the opinion that adequate safeguards should be made. I accordingly direct that in the event of the petitioner filing an appeal within the period of limitation prescribed for the purpose, the recovery pursuant to Ext.P4 shall be kept in abeyance for a period of two weeks from the date on which the appeal is filed so as to enable the petitioner to move the Employees Provident Fund Appellate Tribunal and seek appropriate orders. P.N.RAVINDRAN, (JUDGE) vps