IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 WP(C).No. 27784 of 2009(P) -------------------------- PETITIONER: --------------- A.K.SREEKUMAR, PROPRIETOR, M/S. JAYASREE CASHEW COMPANY, DECENT JUNCTION, MUKATHALA, KOLLAM. BY ADV. SRI.ANIL NARAYANAN SMT.A.K.PREETHA RESPONDENT: --------------- 1. THE EMPLOYEES PROVIDENT FUND ORGANISATION, SUB REGIONAL OFFICE, OLD MUNICIPAL OFFICE BUILDING, KOLLAM, REP.BY THE REGIONAL PROVIDENT FUND COMMISSIONER. 2. REGIONAL PROVIDENT FUND COMMISSIONER-II, THE EMPLOYEES PROVIDENT FUND ORGANIZATION, SUB REGIONAL OFFICE, OLD MUNICIPAL OFFICE BUILDING, KOLLAM. 3. RECOVERY OFFICER, THE EMPLOYEES PROVIDENT FUND ORGANIZATION, SUB REGIONAL OFFICE, OLD MUNICIPAL OFFICE BUILDING, KOLLAM. BY SC EPF SRI. V.V SURESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27784 of 2009 -2- APPENDIX EXT.P1: TRUE COPY OF THE ORDER NO.KR/KLM/1211/Enf.I (2)/2009 DATED 06.04.2009 ISSUED BY THE 2ND RESPONDENT EXT.P2: TRUE COPY OF APPLICATION FOR REVIEW FILED BY THE PETITIONER BEFORE THE RESPONDENT DATED 24.4.2009 EXT.P3: TRUE COPY OF THE ORDER PASSED BY THE SECOND RESPONDENT DATED 20.8.2009 EXT.P4: TRUE COPY OF THE RECOVERY NOTICE ISSUED BY THE 3RD RESPONDENT DATED 3.8.2009 EXT.P5 TRUE COPIES OF THE CHALLANS EVIDENCING PAYMENTS EXT.P6 TRUE COPY OF THE WARRANT OF ATTACHMENT OF MOVABLE PROPERTY DATED 8.10.2009 EXT.P7: TRUE COPY OF THE MAHAZZAR PREPARED ON ATTACHMENT OF THE MOVABLES DATED 21.10.2009 /TRUE COPY/ P.A TO JUDGE S.SIRI JAGAN,J. ------------------------- W.P ( C) No.27784 of 2009 -------------------------- Dated this the 3rd November,2009 J U D G M E N T Against the petitioner's establishment, the 2nd respondent has passed an order under Section 7A of the Employees Provident Fund and Miscellaneous Provisions Act, whereby, the petitioner is required to pay an amount of Rs.35,02,047/-. Before the petitioner could file an appeal within the time prescribed, respondents 2 and 3 initiated coercive recovery proceedings for recovery of the same and attached the factory of the petitioner and raw cashew nuts stored in the factory. It is under the above circumstances, the petitioner has approached this Court seeking the following reliefs: "a) a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside Exhibits P1, P3 and P4; b) a writ of mandamus or any other appropriate writ, order or direction directing the 2nd respondent to reconsider the matter afresh after affording an opportunity of personal hearing to the petitioner; c) declare that Exhibits P1 and P3 are arbitrary, illegal and is vitiated by procedural irregularities; W.P ( C) No.27784 of 2009 2 d) declare that the initiation of recovery proceedings vide Exhibit.P4 prior to the expiry of appeal period is arbitrary and illegal; and e) be further pleased to issue such other interim orders as are warranted on the facts and circumstances of the case." 2. Heard learned standing counsel for respondents also. 3. Learned counsel for the petitioner submits that subsequent to the filing of the writ petition the petitioner has filed an appeal before the 1st respondent against the order under Section 7A of the Employees Provident Fund and Miscellaneous Provisions Act. He further submits that during the pendency of the writ petition, the petitioner has already paid Rs.7,31,556/-. Petitioner seeks a stay of further coercive recovery proceedings pending disposal of the appeal. On 23.10.2009, I had passed an interim order directing lifting of the attachment of the property. Now it is submitted that attachment has been lifted. 4. I am of opinion that the action of the respondents in taking such drastic steps for coercive recovery of the disputed amounts even before the period W.P ( C) No.27784 of 2009 3 prescribed for filing appeal was over is not proper. 5. Now that the petitioner has already filed an appeal and moved for interim orders in the appeal, I feel that it would not be proper for the respondents to enforce the order impugned in the appeal during the pendency of the appeal. However, that cannot be without any conditions. He has to pay part of the amount demanded. Accordingly, the writ petition is disposed of with the following directions. i) The Tribunal shall dispose of the appeal, as expeditiously as possible. Till the disposal of the appeal, coercive recovery proceedings for recovery of the amount disputed in the appeal shall be kept in abeyance on condition that the petitioner pays a further amount of Rs.7 lakhs within one month from today. Such payment would also operate as dispensation with requirement of pre- deposit and the Tribunal shall consider the appeal as if the requirement of pre-deposit has been dispensed with. (S.SIRI JAGAN,JUDGE) ma W.P ( C) No.27784 of 2009 4 W.P ( C) No.27784 of 2009 5