IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 WP(C).No. 34379 of 2011(V) -------------------------- PETITIONER: ------------------ HOTEL VANCHINADU, CHANTHAPURA, KODUNGALLOOR P.O, PIN - 680 664 REPRESENTED BY ITS MG.PARTNER A.B.KUTTAN BY ADV. SRI.A.V.XAVIER RESPONDENT: ------------------- THE ASST.PROVIDENT FUND COMMISSIONER, EMPLOYEES' PROVIDENT FUND ORGANISATION, SUB REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, KALOOR, COCHIN - 682 017 BY SRI. A.RAJASIMHAN, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JV WPC NO: 34379/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PROCEEDINGS OF THE RESPONDENT UNDER SEC.7B OF THE EPF & MP ACT DATED 19.10.2011 P2: COPY OF THE PROCEEDINGS OF THE RESPONDENT UNDER SEC.7A OF THE EPF & MP ACT DATED 08.03.2011 P3: COPY OF THE SHOP INSPECTION REPORT DT.19.11.2010 P4: COPY OF THE MUSTER ROLL FOR JANUARY 2010 P5: COPY OF THE PENSION PAYMENT ORDER DT.15.01.04 P6: COPY OF THE PASSPORT WITH EXPIRY DATE 04.11.06 P7: COPY OF THE TRAINING CONTRACT EXECUTED ON 10.01.10 P8: COPY OF THE APPLICATION DATED 01.10.2011 P9: COPY OF THE A/D CARD WITH THE DATE 04.10.2011 P10: COPY OF THE COMMUNICATION NO: KR/27202/RECOVERY/2011/13105 DATED 28.11.2011 RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO JUDGE JV P.N.RAVINDRAN, J. ---------------------------------------------- WP (C) No. 34379 of 2011 ----------------------------------------------- Dated this the 21st day of December, 2011 JUDGMENT Ext.P2 order passed by the respondent under section 7 A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 herein after referred to as the Act for short and Ext.P1 order passed under section 7B thereof upholding Ext.P2 are under challenge in this writ petition. 2. Ext.P2 order passed on 9.2.2011 and a copy thereof has sent by post to the petitioner on 8.3.2011. The petitioner thereafter filed an application for review on 18.4.2011. The review petition was admitted and notice was issued to the petitioner. Thereafter the petitioner's counsel was also heard on 29.9.2010 and Ext.P1 order was passed upholding Ext.P2 order. 3. It is evident from a reading of Ext.P1 order that it is not an order passed rejecting the review petition but an order passed on the merits after hearing the petitioner. Therefore by virtue of subsection 5 of section 7 b of the Act, Ext.P1 has to be treated as the original order passed under section 7 A there of. If that be so an appeal would lies from Exts.P1 and P2 order to the WP(C)No. 34379 of 2011 -2- Employees Provident Fund Appellate Tribunal. 4. Ext.P1 order was passed on 29.9.2011, a copy thereof has sent by post to the petitioner on 19.10.2011. Section 7 I of the Act stipulates that an appeal to the tribunal shall be filed within such time as may be prescribed. Rule 7 of the Employees Provident Fund Appellate Tribunal 1997 prescribes period of limitation for filing an appeal. As per the said provision the period of limitation prescribed for filing appeal is 60 days from the date of receiving the order of appeal. The Tribunal is also empowered to condone the delay in filing the appeal and is also empowered to extend the time by filing appeal by further period of 60 days. Relying on the principles laid down by the Apex Court in D.Saibaba v. Bar Council of India (2003(6) SCC 186) the period of limitation prescribed for filing an appeal from Ext.P1 will begin to run only from the date of which it was communicated to the petitioner. As stated earlier it was sent by post only on 19.10.2011. The petitioner would have received it only thereafter. Therefore it cannot be said that as on today the period of limitation prescribed for filing the appeal has expired. Even if the period of 60 has days expired the petitioner can still file the appeal before the Employees Provident fund Appellate WP(C)No. 34379 of 2011 -3- Tribunal within another period of 60 days from the date of expiry of the first period of sixty days provided he show sufficient cause for not filing the appeal within the original period of 60 days. Such being the situation, I am of the opinion that the petitioner should invoke the alternate remedy available to him stated as seeking the intervention of this Court. I accordingly decline jurisdiction and dismiss the writ petition leaving open to the contention raised by the petitioner and reserving the liberty of the petitioner to challenge Exts.P1 and P2 orders in appeal. After the writ petition was dismissed the learned counsel appearing for the petitioner submitted in such time as the petitioner moves the Employees Provident Fund Appellate Tribunal in appeal for stay of operation of the impugned orders recovery pursuant to Exts.P1 and P2 orders may be kept in abeyance. Learned counsel submitted that respondent has by Ext.P10 notice dated 28.11.2011 called upon the petitioner to remit the amount assessed as per Ext. P2 and has threatened to take steps to recover the amount if it is not deposited within 15 days from the date of receipt of Ext.P1. Learned counsel submitted that the petitioner is prepared to deposit the portion of the amount demanded. In such circumstances I direct that in WP(C)No. 34379 of 2011 -4- the event of the petitioner depositing 25% of the amount assessed as per Ext.P2 order with the respondent within one week from today the respondent shall await further orders of the Employees Provident Fund Appellate Tribunal. Before proceeding to recover balance amount payable under Ext.P10 subject to the further condition an appeal is presented before the Employees Provident Fund Appellate Tribunal within the period of 120 days from the date of service of Ext.P1 order to the petitioner. Needless to say Employees Provident Fund Appellate Tribunal shall while passing orders regarding pre-deposit have due regard to the said payment if made by the petitioner. Sd/- P.N.RAVINDRAN, JUDGE. Rkc //true copy// PA to Judge.