IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 WP(C).No. 18601 of 2011(A) -------------------------------------- PETITIONER: ------------------- KRISHNAN NAIR AND SONS JEWELLERS, PADMAVILASOM ROAD, EAST FORT, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING PARTNER SURESH K.BABU. BY ADV. SRI.P.RAMAKRISHNAN. RESPONDENTS: ------------------------ 1. THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, BHAVISHYANIDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL,SCOPE MINAR, CORE 2,LAXMI NAGAR DISTRICT CENTRE, NEW DELHI- 110 092. R1 BY SRI. T.N. GIRIJA, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.18601/2011: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DTD. 09/04/07 ISSUED BY THE R.1. EXT.P.2: COPY OF THE APPEAL MEMORANDUM DATED 09/06/2007 SUBMITTED BY THE PETITIONER BEFORE THE R.2. EXT.P.3: COPY OF THE ORDER DATED 24/03/2011 OF THE R.2. IN ATA .NO.603 (7)/2007. EXT.P.4: COPY OF THE APPLICATION SUBMITTED BY THE PETITONER ON 31/05/2011. EXT.P.5: COPY OF THE ORDER DATED 06/06/2011 OF THE R.2. IN ATA.NO.603(7)/2007. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.18601 of 2011 ----------------------------------------- Dated this the 12th July, 2011 JUDGMENT The petitioner, a partnership firm represented by its Managing Partner, has filed this writ petition challenging Ext.P3 order passed by the Employees Provident Fund Appellate Tribunal on 24.3.2011 directing the appellant to deposit 40% of the amount assessed as per Ext.P1 assessment order by way of pre- deposit and Ext.P5 order dismissing the appeal for failure of the petitioner to deposit 40% of the amount assessed within the stipulated time. The brief facts of the case are as follows. 2. By Ext.P1 order passed on 19.1.2007 the first respondent directed the petitioner to pay the sum of Rs.7,50,658.65 by way of contribution to the Employees Provident Fund for the period from February 1991 to December 2006. Aggrieved thereby the petitioner filed Ext.P2 appeal before the Employees Provident Fund Appellate Tribunal, New Delhi. Along with that appeal the petitioner filed an application for waiver of the pre-deposit. By Ext.P3 order passed on 24.3.2011 the W.P(C).No.18601 of 2011 -:2:- Appellate Tribunal waived deposit of 60% of the amount assessed as per Ext.P1 and directed the petitioner to deposit 40% of the amount assessed within two months. The petitioner did not deposit the said amount within the stipulated time. Instead, pointing out financial constraints, the petitioner filed Ext.P4 application dated 31.5.2010 before the Appellate Tribunal praying for enlargement of the time fixed in Ext.P3 order by a further period of one month. The said request was not granted and by Ext.P5 order the Appellate Tribunal dismissed the appeal as not maintainable. Hence this writ petition challenging Exts.P3 and P5 orders wherein the petitioner also prays for an order directing the Employees Provident Fund Appellate Tribunal to take up Ext.P2 appeal and dispose it of on the merits. 3. When the writ petition came up for admission hearing today, learned counsel appearing for the petitioner submitted that the petitioner is giving up the challenge to Ext.P3 to the extent it directs payment of 40% of the amount assessed and the petitioner is only praying for a reasonable time to comply with Ext.P3. The learned standing counsel appearing for the Employees Provident Fund Organization did not oppose the said request. In such circumstances having regard to the fact that the W.P(C).No.18601 of 2011 -:3:- Employees Provident Funds and Miscellaneous Provisions Act confers on the petitioner the right to file an appeal from Ext.P1, I am of the opinion that the Employees Provident Fund Appellate Tribunal ought to have granted the request made by the petitioner in Ext.P4. By Ext.P5 the Appellate Tribunal rejected the request for extension of the time on the ground that extensions have already been granted. It was by Ext.P3 order dated 24.3.2011 that the Tribunal directed deposit of 40% of the amount assessed by way of pre deposit. The period of two months fixed for depositing the said amount expired only on 24.5.2011. The only application filed by the petitioner seeking enlargement of time is dated 31.5.2011. No other application was filed or disposed of by the Tribunal as stated in Ext.P5. Therefore, for that reason also, I am of the opinion that Ext.P5 cannot be sustained. I accordingly allow the writ petition, quash Ext.P5 and direct that in the event of the petitioner depositing 40% of the amount assessed as per Ext.P1 order on or before 31.8.2011 before the first respondent and producing proof of such remittance before the Employees Provident Fund Appellate Tribunal, New Delhi, the Appellate Tribunal shall take back the application, A.T.A.No.603 (7)/2007 to file, issue notice to the respondents therein and hear W.P(C).No.18601 of 2011 -:4:- and dispose of the appeal on the merits. If the petitioner fails to comply with the direction to deposit the amount within the stipulated time, this order will stand automatically recalled. In the event of the petitioner complying with the aforesaid direction, there will be a stay of recovery of the amount assessed as per Ext.P1 order till the Appellate Tribunal disposes of the appeal. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.18601 of 2011 ---------------------------- JUDGMENT 12th July, 2011