IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 18TH JULY 2011 / 27TH ASHADHA 1933 WP(C).No. 15960 of 2011(T) ------------------------ PETITIONER : -------------------- TRICHUR WHOLESALE CO-OPERATIVE CONSUMER STORES LIMITED NO.R.329, TRICHUR-1, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT(S): ------------------------- 1. THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANIZATION, SUB REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, KALOOR, KOCHI-17. 2. THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, SCOPE MINAR, CORE 2, LAXMI NAGAR DISTRICT CENTRE, NEW DELHI-110 092. R1 BY ADVS. DR.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE SRI.A.RAJASIMHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 15960 of 2011(T) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF ORDER DATED 1/10/2010 ISSUED BY THE 1ST RESPONDENT. EXT.P2 : COPY OF APPEAL MEMORANDUM SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P3 : COPY OF NOTICE DATED 14/2/2011 INTIMATING THE POSTING OF APPEAL. EXT.P4 : COPY OF LETTER DATED 10/3/2011 WRITTEN BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P5 : COPY OF ORDER DATED 7/3/2011 OF THE 2ND RESPONDENT. EXT.P6 : COPY OF COVER IN WHICH EXHIBIT P-3 WAS RECEIVED. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.S. TO JUDGE Mn P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.15960 of 2011 ----------------------------------------- Dated this the 18th July, 2011 JUDGMENT The petitioner is a co-operative society registered under the Kerala Co-operative Societies Act, 1969, engaged in the business of marketing and sale of consumer products. The petitioner's establishment is covered under the provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952. On 19.1.2010 the Enforcement Officer of the Employees Provident Fund Organization inspected the petitioner's establishment and submitted a report to the effect that in addition to the 15 employees engaged by the petitioner, there are 17 other temporary employees employed in the petitioner society. Thereupon an enquiry under section 7A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act for short) was held and Ext.P1 order was passed directing the petitioner to pay the sum of Rs.69,237/- by way of arrears of contribution for the period from April 2008 to December 2009. W.P(C).No.15960 of 2011 -:2:- 2. Aggrieved by Ext.P1 order, the petitioner filed Ext.P2 appeal before the Employees Provident Fund Appellate Tribunal, New Delhi. The said appeal was entertained. The Appellate Tribunal thereafter issued Ext.P3 notice dated 14.2.2011 informing the petitioner that the appeal will be heard on 7.3.2011 at New Delhi. It is stated that the notice of hearing was received by the petitioner only on 9.3.2011 and therefore, the petitioner could not appear for the hearing. For that reason the Appellate Tribunal dismissed the appeal for default by Ext.P5 order passed on 7.3.2011. Hence this writ petition challenging Ext.P5 and seeking a direction to the Employees Provident Fund Appellate Tribunal, New Delhi to take back the appeal to file and dispose it of afresh after affording the petitioner an opportunity of being heard. The petitioner has, along with I.A.No.11596 of 2011 produced the cover in which Ext.P3 hearing notice was received. Relying on the endorsements on the cover, it is contended that though Ext.P3 letter is dated 14.2.2011, the postal article was despatched from New Delhi only 3.3.2011 and was received by the petitioner only on 9.3.2011 and therefore, the Appellate Tribunal erred in dismissing the appeal for default without W.P(C).No.15960 of 2011 -:3:- ascertaining whether the notice of hearing had in fact been served on the petitioner, prior to the date fixed for hearing. 3. The first respondent has been served. Though notice has been sent to the Employees Provident Fund Appellate Tribunal, New Delhi, it has not so far been returned after service. The learned counsel appearing for the petitioner, besides producing a copy of the cover as Ext.P6, also made available to me the original thereof. The original of Ext.P6 discloses that the postal article was despatched from New Delhi only on 3.3.2011. The cover contains an endorsement that it relates to 68(7)/2011. It evidently relates to the appeal that was dismissed for default by Ext.P5 order. The postal cover also contains a seal to the effect that it had reached Trichur on 9.3.2011. It can therefore, be safely assumed that Ext.P3 notice of hearing was not served on the petitioner before 7.3.2011. Even if the petitioner had been served on 7.3.2011 the petitioner would not have been in a position to attend the hearing at New Delhi on the same day. I am therefore, satisfied that the dismissal of the appeal for default cannot be sustained. I accordingly allow the writ petition, set aside Ext.P5 and W.P(C).No.15960 of 2011 -:4:- direct the Employees Provident Fund Appellate Tribunal, New Delhi to take back the appeal to file, issue notice to the parties, giving them atleast two weeks notice of the date fixed for hearing and pass appropriate orders thereon expeditiously. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.15960 of 2011 ---------------------------- JUDGMENT 18th July, 2011