IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 10TH MARCH 2011 / 19TH PHALGUNA 1932 WP(C).No. 24227 of 2010(C) ---------------------------------- PETITIONER(S): ------------------- M/S.CHANDRA CASHEW FACTORY,THEVALAPURAM P.O., PUTHUR, KOLLAM DISTRICT, REPRESENTED BY ITS PROPRIETOR, R.S.DINESH CHANDRAN. BY ADVS. SRI.R.ARUN SRI.LATHEESH SEBASTIAN RESPONDENT(S): -------------------- 1. THE EMPLOYEES PROVIDENT FUNDS APPELLATE TRIBUNAL NEW DELHI. 2. THE ASSISTANT PROVIDENT FUND COMMISSIONR EMPLOYEES PROVIDENT FUND ORGANIZATION, SUB REGIONAL OFFICE, OLD MUNICIPAL OFFICE BUILDING, CHINNAKADA, KOLLAM - 691 001. 3. THE ENFORCEMENT OFFICER, EMPLOYEES PROVIDENT FUNDS ORGANISATION, MANNANIYYA COMPLEX, KOLLAM - 691 001. R2 & R3 BY ADV. SRI.V.V.SURESH, SC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 24227/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE 7A ORDER DATED 11/05/2009. P2: COPY OF THE CHALLAN DATED 01/07/2009. P3: COPY OF THE PROCEEDING OF THE 2ND RESPONDENT DATED 22/02/2010 P4: COPY OF THE OBJECTION OF THE PETITIONER DATED 10/03/2010 P5: COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 07/04/2009. P6: COPYOF THE APPEAL SUBMITTED BEFORE 1ST RESPONDENT CHALLENGING EXT.P5. P7: COPY OF THE STAY PETITION SUBMITTED BEFORE THE 1ST RESPONDENT FOR STAYING OPERATION OF EXT.P5 P8: COPY OF THE JUDGMENT OF THIS NO.14405/2010 HONOURABLE COURT DATED 06/05/2010 P9: COPY OF THE ORDER DATED 10/07/2010 IN ATA NO.271(7)2010 OF THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No.24227 of 2010 ------------------------------- Dated this the 10th day of March, 2011 J U D G M E N T The petitioner is the Proprietor of an establishment covered under the provisions of the Employees Provident Funds & Miscellaneous Provisions Act, 1952 (hereinafter referred to as 'the Act' for short). Proceedings were initiated against the petitioner under section 7A of the Act which resulted in Ext.P1 order dated 6.4.2009. By that order, the second respondent herein directed payment of the sum of Rs.5,54,400.50 as contribution for the period from April, 2004 to April, 2008. The petitioner remitted the said amount on 1.7.2009. Later, proceedings were initiated against him for belated payment of the contribution which was determined as per Ext.P1 by invoking section 14B of the Act which resulted in Ext.P5 order dated 12.3.2010, whereby, the second respondent levied the sum of Rs.3,53,412/- as damages. The petitioner was also held liable to pay interest under section 7Q of the Act. Aggrieved thereby, the petitioner filed Ext.P6 appeal before the Employees Provident Fund Appellate Tribunal. By Ext.P9 order dated 9.7.2010, the said appeal was dismissed on the short ground that when the appeal was called on for hearing, none appeared for the petitioner. Ext.P9 is under challenge in this writ W.P.(C) No.24227 of 2010 2 petition. 2. I heard Sri.R.Arun, the learned counsel appearing for the petitioner and Sri.V.V.Suresh, the learned standing counsel appearing for respondents 2 and 3. The petitioner has positively averred in paragraph 8 and in ground 4 of the writ petition that before the appeal was disposed of, he was not put on notice regarding the date of hearing. Though respondents 2 and 3 have entered appearance through counsel, till date, they have not filed a counter affidavit disputing the assertion made by the petitioner that notice of hearing of the appeal was not given to him. A reading of Ext.P6 appeal memorandum indicates that the petitioner has raised various contentions therein. The appellate authority has not considered any one of the said contentions and has dismissed the appeal on the short ground that none appeared for the petitioner when the appeal was called on for hearing on 7.7.2010. Further, the order impugned does not disclose the manner in which notice of hearing was served on the petitioner. In such circumstances, it has to be held that no notice of hearing was given to the petitioner before the appeal filed by him was disposed of by the impugned order. In the result, I allow the writ petition, quash Ext.P9 and W.P.(C) No.24227 of 2010 3 direct the first respondent to take back the appeal to file, issue notice to the petitioner and respondents 2 and 3 and pass orders on the appeal on merits. This shall be done expeditiously and in any event within six months from today. Till such time as orders are passed as directed above, recovery of the amounts demanded in Ext.P5 shall be kept in abeyance, in the event of the petitioner depositing a further sum of Rs.70,000/- in addition to the sum of Rs.75,000/- already deposited by him pursuant to the interim order passed by this Court on 13.1.2011. P.N. RAVINDRAN, JUDGE. nj.