IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933 WP(C).No. 12964 of 2011(U) -------------------------- PETITIONER: ----------------- THE MAUNATHUL ISLAM ASSOCIATION, PONNANI, REP. BY SECRETARY, MALAPPURAM DISTRICT, P.O. PONNANI, PIN - 679 583, A COMPANY REGISTERED UNDER THE INDIAN COMPANIES ACT BY ADVS. SRI.R.SUDHISH SRI.P.P.BALAN SMT.M.MANJU SRI.K.R.RANJITH RESPONDENT(S): ------------------------- 1. REGIONAL PRVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, BHAVISHANIDHI, P.B. NO.1806 ERANHIPALAM.P.O, KOZHIKODE - 673 006. 2. EMPLOYEES' PROVIDENT FUND APPELLATE TRIBUNAL, REP. BY REGISTRAR, SCOPE MINIAR, 4TH FLOOR, CORE-II, LAKSHMI NAGAR, NEW DELHI, PIN - 110 092. 3. A. ABDUL LATHEEF, C/O.DR.K. AYISHA LATHEEF, KOTTAKKAL NURSING HOME, P.O. KOTTAKKAL, MALAPPURAM DISTRICT, PIN - 676 503. R1 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC, P.F. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12964 of 2011(U) ------------------------------------- APPENDIX -------------- PETITIONER'S EXHIBITS ------------------------------------ EXT.P1. COPY OF THE ORDER OF THE ASSISTANT PROVIDENT FUND COMMISSIONER, CALICUT DATED 6.6.2008. EXT.P2. COPY OF THE APPEAL MEMORANDUM DATED 1.8.2008 SUBMITTED BY THE PETITIONER. EXT.P3. COPY OF THE ORDER OF THE 2ND RESPONDENT DTED 3.2.2011 RESPONDENT'S EXHIBITS -------------------------------------- EXT.R1(A). COPY OF COMPLAINT LODGED BY THE 3RD RESPONDENT ABOUT HIS EMPLOYMENT AND NON ENROLLMENT UNDER THE ACT. EXT.R1(B). COPY OF THE APPOINTMENT ORDER DATD 4.2.2001 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT. EXT.R1(C). COPY OF TERMINATION ORDER DATED 9.11.2006 ISSUED BY THE PETITIONER ESTABLISHMENT TERMINATING THE SERVICES OF THE 3RD RESPONDENT FROM 1.12.2006. EXT.R1(D). COPY of the STATEMENT DATED 12.12.2007 SUBMITTED BY THE PETITIONER DURING THE 7-A ENQUIRY. EXT.R1(E). COPY OF CERTIFICATE DATED 26.2.2003 ISSUED BY THE PETITIONER ESTABLISHMENT. / TRUE COPY / P.A. TO JUDGE VK P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No.12964 of 2011 ------------------------------- Dated this the 16th day of August, 2011 J U D G M E N T Ext.P1 order passed by the Assistant Provident Fund Commissioner, Calicut under section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as 'the Act' for short) and Ext.P3 order passed by the Employees' Provident Fund Appellate Tribunal upholding Ext.P1 are under challenge in this writ petition. The brief facts of the case are as follows:- 2. The petitioner is a company incorporated under the Companies Act, 1956. It is running an educational institution. The third respondent herein was employed as a Supervisor in the office of the petitioner during the period from 15.1.2001 to 29.11.2006. After his service was terminated, the third respondent filed a complaint before the Regional Provident Fund Commissioner to the effect that though the management had deducted the employee's share of contribution from his salary and obtained his signature in the prescribed form for coverage under the Employees' Provident Fund Scheme, he was not given the Provident Fund Account number or the yearly statement of accounts. He requested the Regional Provident W.P.(C) No.12964 of 2011 2 Fund Commissioner to conduct an enquiry into the matter. On receipt of the complaint, the Assistant Provident Fund Commissioner conducted an enquiry under section 7A of the Act . The employer did not deny the fact that the employee had worked during the period from 15.1.2001 to 29.11.2006. The employer did not also deny the statement of the employee that the provident fund contribution had been deducted from his salary. By Ext.P1 order passed on 10.6.2008, the Assistant Provident Fund Commissioner held that the petitioner is liable to pay the sum of Rs.81,923/- towards the contribution and other charges. Aggrieved thereby, the petitioner filed Ext.P2 appeal before the Employees Provident Fund Appellate Tribunal, New Delhi. By Ext.P3 order passed on 3.2.2011, the Appellate Tribunal dismissed the appeal. Hence this writ petition. 3. The main ground raised in the instant writ petition and in Ext.P2 appeal before the Employees Provident Fund Appellate Tribunal is that the Assistant Provident Fund Commissioner erred in holding that the appellant had deducted the employee's share of contribution from the salary of the third respondent. Today, during the course of arguments, learned counsel for the petitioner reiterated the W.P.(C) No.12964 of 2011 3 said submission. However, the fact remains that as noticed by the Assistant Provident Fund Commissiioner in Ext.P1, notwithstanding the repeated adjournments granted, the petitioner did not produce the books of accounts and other related documents in respect of the employees. In short, the petitioner did not produce any document to show that third respondent was paid the entire salary without deducting any amount towards the provident fund. Even in the instant writ petition also, no such document is produced though a contention is raised that the employee's share of contribution was not deducted. That apart, under paragraph 30 of the Employee's Provident Fund Scheme, 1952, at the first instance, it is for the employer to pay the employee's share of contribution also and to recover it from the wages payable to the employee. The petitioner has no case that after the third respondent was employed, it had taken steps to enroll him in the provident fund by remitting in advance the share of contribution payable by both the employer and the employee. In short, there is no material on record to prove the assertion made by the employer that the employee's share of contribution was not deducted. W.P.(C) No.12964 of 2011 4 In such circumstances, I am of the opinion that no interference is called for with the impugned orders. The writ petition fails and is accordingly dismissed. P.N. RAVINDRAN, JUDGE. nj. P.N.RAVINDRAN, J. -------------------------------------- W.P.(C) No. JUDGMENT Dated:- August, 2011 --------------------------------------