IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 WP(C).No. 28395 of 2008(E) -------------------------- PETITIONER(S): --------------- K.BALAN, PRINCIPAL, MERCY ARTS COLLEGE, VADAKARA, KOZHIKODE DISTRICT, PIN 673 101. BY ADV. SRI.K.SRIKUMAR SRI.K.MANOJ CHANDRAN RESPONDENT(S): --------------- 1. THE ASSISTANT PROVIDENT FUND COMMISSIONER. REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, POST BOX NO.1806, KOZHIKODE. 2. THE REGIONAL PROVIDENT FUND COMMISSIONER OFFICE OF THE REGIONAL PROVIDENT FUND COMMISSIONER REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, POST BOX NO.1806, KOZHIKODE. 3. THE EMPLOYEES' PROVIDENT FUND APPELLATE TRIBUNAL, MAYUR VIHAR, NEW DELHI-1. ADV.THOMAS MATHEW NELLIMOOTTIL, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P(C).No.28395 of 2008 ================== Dated this the 24th day of September, 2008 J U D G M E N T The petitioner is the principal of a college which is sought to be covered under the Employees' Provident Funds and Miscellaneous Provisions Act. Earlier an order under Section 7A of the Act was passed holding that the petitioner's establishment is liable to be covered under the Act, against which an appeal has been filed before the Appellate Tribunal by the petitioner, which is numbered as ATA No.577[7]/2006. That appeal is pending. This Court had also directed stay of recovery of the amounts covered by the order in appeal in that case, on condition that the petitioner pays Rs.10 lakhs. 2. The petitioner's grievance now is that before the Tribunal decides on the question of liability to be covered under the Act, the 1st respondent is proceeding further to determine amounts due for further periods, which according to the petitioner, is arbitrary and unsustainable. The petitioner, therefore, seeks the following reliefs: “i] to call for the records leading to Ext.P9, verify and quash the same by issuing a writ of certiorari or any other writ, order or 2 direction. ii] to call for the records leading to Exts.P1 and P2, verify and quash the same by issuing a writ of certiorari or any other writ, order or direction. iii] to direct the 1st respondent not to proceed pursuant to Ext.P7 till Ext.P4 appeal [ATA No.577[7]/2006] is heard and decided on merits by the Appellate Tribunal. iii] [sic] to issue a writ of mandamus directing the 3rd respondent to dispose of Ext.P4 appeal on merits.” 3. The prayers of the petitioner are opposed by the learned Standing Counsel appearing for Provident Fund Organization. According to him, simply because an appeal regarding the liability to be covered is pending before the Tribunal that does not interdict respondents 1 and 2 from proceeding to assess the contributions in respect of the petitioner's establishment. 4. It is true that the fact that appeal is pending does not stand in the way of respondents 1 and 2 in taking further proceedings under Section 7A of the Act for assessing contributions due from the petitioner. But, in so far as the question of coverage is pending before the Tribunal and there is a stay on condition of payment of part of the amounts demanded, I feel that it is not fair to finally recover the contributions. 3 However, I do not think that for that purpose respondents 1 and 2 should be interdicted from passing orders under Section 7A. In the above circumstances, this writ petition is disposed of with the following directions: Respondents 1 and 2 are free to continue proceedings now initiated and pass final orders under Section 7A of the Act. However, the same shall not be enforced until the Tribunal decides the applicability of the Act to the petitioner's establishment. The petitioner shall co-operate with the proceedings initiated by the 1st respondent by producing all documents in their possession called for by the 1st respondent. The petitioner may also file an appeal against the final orders to be passed before the Tribunal, if the same is adverse to the petitioner subject to the orders in the appeal pending before the Tribunal. The 3rd respondent shall dispose of Appeal No.ATA 557 (7)/2006 as expeditiously as possible. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge 4