IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 2ND MARCH 2009 / 11TH PHALGUNA 1930 WP(C).No. 12019 of 2008(E) ---------------------------------- PETITIONER: -------------------- THAPOVAN HERITAGE HOME(P)LTD, NELLIKUNNU, MULLOOR PO, VIZHINJAM, TRIVANDRUM DT. ,REPRESENTED BY ITS MANAGING DIRECTOR MR.SUNIL.P.JAMES BY ADV. SMT.K.LATHA RESPONDENT: ---------------------- THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES' PROVIDENT FUND ORGANISATION, (MINISTRY OF LABOUR GOVERNMENT OF INDIA), REGIONAL OFFICE KERALA,"BAHVISH YANIDHI BHAVAN". PATTOM, TRIVANDRUM. ADV. SRI.N.N. SUGUNAPALAN, SC, P.F. FOR R7 SMT.T.N.GIRIJA, SC,EPF ORGANISATION FOR R7 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. --------------------------- W.P.(C) No. 12019 of 2008 ------------------------------------ Dated this the 2nd day of March, 2009 JUDGMENT The Petitioner is an establishment to which Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 is applicable. Exhibit P2 is the order passed by the first respondent, exercising his powers under Section 7A of the Act, holding that the petitioner is liable to remit an amount of Rs.18,64,821.65/-. It would appear that on receipt of this order petitioner filed Exhibit P3, application under section 7B of the Act. That application was rejected by Exhibit P4 order dated 21/02/2008. It is challenging this proceedings, this writ petition has been filed on 7/04/2008. 2. During the pendency of this writ petition, the petitioner filed Exhibit P6 appeal, Exhibit P6A application for waiver of pre-deposit, Exhibit P6B for stay and Exhibit P6C for condoning delay in filing the appeal. It is seen from Exhibit P7, that the appeal and other applications have been delivered at the office of the second respondent. At this stage, counsel for the petitioner confines his prayer for a direction to the additional W.P.(C) No. 12019/2008 2 second respondent to consider and pass orders on Exhibit P6A application for waiver, Exhibit P6B for stay and P6C for condonation of delay in filing the appeal. 3. Standing counsel appearing for the respondents objected to entertaining the appeal and stay petition contending that the appeal is highly belated. He points out that in terms of Section 7(I) of the Act, the appeal is to be filed within 60 days of the order and maximum period up to which the Tribunal can condone the delay is further 60 days. It is stated that even if said period is counted from the date of Exhibit P4, rejecting the application filed by the petitioner under Section 7B, still the appeal is hopelessly time barred. 4. Although, the contention raised by counsel for the petitioner is factually correct, still the fact remains that on receipt of Exhibit P4 order referred to above, immediately thereafter the petitioner had approached this Court and this writ petition was filed. It is during the pendency of this writ petition, realizing that the appropriate remedy is to approach Tribunal, petitioner has filed Exhibit P6 appeal along with the applications stated above. W.P.(C) No. 12019/2008 3 At this stage, it can therefore be taken as a case where the petitioner was bonafidely prosecuting his remedy before a wrong forum. If that be so, ends of justice require that appeal should be treated within time, on that basis the appeal and other applications should be considered by the additional second respondent. In view of this I dispose of this writ petition with the following directions; That subject to the petitioner remitting 50% of amount due under Exhibit P2 within four weeks from today, and on production of proof before the additional second respondent, I direct that the additional second respondent shall consider Exhibit P6 appeal with notice to petitioner and pass orders thereon. Petitioner shall produce a copy of this judgment before additional respondents 1 and 2 for compliance. ANTONY DOMINIC, JUDGE scm