IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 WP(C).No. 30260 of 2011(F) --------------------------------------- PETITIONER(S): -------------------------- MOHAMMED BASHEER, PROPRIETOR, M/S. ALUVILA CASHEW COMPANY, PEROOR, THAHAMUKKU, KOLLAM. BY ADV. SRI.T.M.CHANDRAN SRI.S.SUJITH SRI.V.A.SASIDHARAN SRI.JOSEPH ALBIN NEDUMTHALLY RESPONDENT(S): --------------------------- 1. THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, NEW DELHI. 2. THE ASSISTANT PROVIDENT FUND COMMISSIONER, KOLLAM - 691 001. 3. THE RECOVERY OFFICER, OFFICE OF THE ASSISTANT PROVIDENT FUND COMMISSIONER, KOLLAM - 691 001. R1 & R2 BY ADV. SRI.V.V.SURESH,SC,EPF.ORGANISATION THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/12/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.30260/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORDER DATED 6/8/2008 PASSED BY 2ND RESPONDENT. P2 COPY OF THE MEMORANDUM OF APPEAL DATED 16/3/2009. P3 COPY OF THE ORDER DATED 9/3/2010. P4 COPY OF THE ORDER DATED 7/5/2010. P5 COPY OF THE ORDER DATED 18/1/2011. P6 COPY OF THE MAHAZAR DATED 16/10/2009. P7 COPY OF THE CHALLAN DATED 12/11/2009. P8 COPY OF THE NOTICE DATED 24/6/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 30260 OF 2011 -------------------------- Dated this the 12th day of December, 2011 J U D G M E N T The petitioner, who is the proprietor of a cashew factory has filed this writ petition challenging Ext.P5 order passed by the Employees Provident Fund Appellate Tribunal, New Delhi rejecting the appeal filed by him from Ext.P1 order on the ground that he did not comply with Ext.P3 order directing deposit of 30% of the amount assessed as per Ext.P1 by way of pre-deposit. 2. By Ext.P1 order passed on 6.8.2008 under section 7A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 ((hereinafter referred to as 'the Act' for short) the second respondent assessed the petitioner to pay the sum of Rs.21,58,025/- by way of contribution to the Employees Provident Fund. Aggrieved thereby, the petitioner filed Ext.P2 appeal (ATA No.189(7) of 2009) before the Employees Provident Fund Appellate Tribunal, New Delhi. On that appeal, the Employees Provident Fund Appellate Tribunal passed Ext.P3 order waiving the deposit of 70% of the amount assessed and directing the petitioner to deposit 30% of the amount assessed as per Ext.P1. He was also granted two months' time to deposit 30% of the amount assessed. Ext.P3 order was passed on 9.3.2010. The period WPC No.30260/2011 2 of two months stipulated therein expired on 8.5.2010. Shortly before the said period expired, the petitioner moved for enlargement of time for payment and also to further reduce the amount to be deposited by way of pre-deposit. The request to reduce the amount to be deposited by way of pre-deposit was rejected. However by Ext.P4 order dated 7.5.2010 the petitioner was granted one month's further time to deposit 30% of the amount assessed. The petitioner did not even thereafter deposit 30% of the amount assessed as per Ext.P1. When the appeal came up for hearing on 18.1.2011 it was dismissed as not maintainable by Ext.P5 order dated 18.1.2011. Thereupon Ext.P8 demand notice dated 27.6.2011 was issued demanding payment of the amount assessed as per Ext.P1. This writ petition was thereafter filed on 14.11.2011 challenging Ext.P5 order and Ext.P8 notice and seeking a direction to the first respondent to restore Ext.P2 appeal to file and to hear and dispose of the same on the merits after waiving pre- deposit of the amount assessed. 3. I heard Sri.T.M.Chandran, learned counsel appearing for the petitioner and Sri.V.V.Suresh, learned standing counsel appearing for respondents 2 and 3. The learned counsel appearing for the petitioner contended that the direction in Ext.P5 to deposit 40% of the amount assessed is factually incorrect, that Ext.P5 and Ext.P3 orders are mutually contradictory and therefore the order rejecting the appeal WPC No.30260/2011 3 is liable to be set aside. It is also contended that the direction issued in Ext.P3 order to deposit 30% of the amount assessed is only a condition for stay of operation of the impugned order and therefore it should be deemed that pre-deposit was waived by the first respondent Tribunal. It is also contended that 100 bags of cashew nuts worth Rs.6,00,000/- have already been attached and therefore the petitioner is liable to pay only the sum of Rs.47,407.50. 4. Per contra, Sri.V.V.Suresh, learned standing counsel for the Employees Provident Fund Organisation contended that the petitioner had not asked for waiver of pre-deposit but asked for stay of the impugned order and therefore the petitioner was liable to pay 75% of the amount assessed as per Ext.P1 having regard to the provisions contained in section 7-O of the Act. The learned counsel contended that stay can be treated as an order waiving deposit of 70% of the amount assessed as per Ext.P1, the petitioner who did not deposit 30% of the amount assessed as per Ext.P1 within the time stipulated by the Tribunal cannot be heard to contend that the order rejecting the appeal for failure to comply with Ext.P3 is bad in law. 5. I have considered the submissions made at the Bar by the learned counsel on either side. It is evident from Ext.P3 order that the petitioner was called upon to deposit 30% of the amount assessed as per Ext.P1 by way of pre-deposit. The Tribunal also directed that upon WPC No.30260/2011 4 such deposit being made, the operation of the impugned order will stand stayed. The petitioner did not deposit 30% of the amount assessed within time. He thereafter moved for enlargement of the time to make the deposit. He also sought reduction of the amount to be deposited. The request to reduce the amount to be deposited by way of pre-deposit was rejected. However by Ext.P4 order dated 7.5.2010 the petitioner was given further time to deposit 30% of the amount assessed by way of pre-deposit. Even thereafter the petitioner did not deposit the said amount. The Appellate Tribunal was therefore right in rejecting the appeal. Though the learned counsel appearing for the petitioner contended with reference to Ext.P6 mahazar that 100 bags of cashew nuts worth Rs.6,00,000/-were attached and therefore the petitioner need not deposit the said amount and need only pay the balance amount of 30% of the amount assessed, I find no merit in the said contention. The petitioner could have complied with Ext.P3 order, deposited 30% of the amount assessed and asked for release of the attached cashew nuts. He could have thereafter either sold it and realised its value or processed it in his cashew factory. I am therefore not satisfied that the attachment of 100 bags of cashew nuts will relieve the petitioner of the obligation to deposit 30% of the amount assessed by way of pre-deposit. I accordingly hold that there is no merit in the challenge to WPC No.30260/2011 5 Ext.P5. However, having regard to the request made by the petitioner for time to deposit 30% of the amount assessed and the fact that the learned counsel appearing for the Employees Provident Fund Organisation did not oppose the said request, I direct that in the event of the petitioner depositing 30% of the amount assessed as per Ext.P1 order within one month from today, Ext.P5 order dismissing Ext.P2 appeal shall stand set aside and the appeal shall stand restored to file. The Appellate Tribunal shall in that event issue notice to the petitioner and respondents 2 and 3, hear them and pass appropriate orders on the appeal within a period of three months from the date on which the second respondent produces proof of such payment before the Tribunal. In the event of the petitioner failing to deposit 30% of the amount assessed as per Ext.P1 within the time limit stipulated above this writ petition shall stand dismissed. The writ petition is disposed of as above. P.N.RAVINDRAN, (JUDGE) vps WPC No.30260/2011 6