IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 WP(C).No. 6106 of 2005(B) ------------------------- PETITIONER(S): --------------- THE URBAN CO-OPERATIVE BANK LTD., NO.1758, PERINTHALMANNA, MALAPPURAM DISTRICT, REP. BY ITS SECRETARY. BY ADV. SRI.U.K.RAMAKRISHNAN, SENIOR ADVOCATE SRI.P.V.LOHITHAKSHAN SMT.P.VIJAYAMMA SMT.UMA GOPINATH SRI.V.KRISHNA MENON SRI.DEVIDAS.U.K SRI.SANDEEP.B. RESPONDENT(S): --------------- 1. THE REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANIZATION, (MINISTRY OF LABOUR, GOVT.OF INDIA) SUB REGIONAL OFFICE, BHAVISHYA NIDHI BHAVAN, P.B.NO.1806, ERANJIPPALAM POST, KOZHIKODE-673 006. 2. THE ASST.PROVIDENT FUND COMMISSIONER EMPLOYEES PROVIDENT FUND ORGANIZATION (MINISTRY OF LABOUR, GOVT.OF INDIA), SUB REGIONAL OFFICE, BHAVISHYA NIDHI BHAVAN, P.B.NO.1806, ERANJIPPALAM POST, KOZHIKODE-673 006. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC, P.F. FOR R1,2 SRI.K.GOPALAKRISHNA KURUP, SC,KDB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).6106/05 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:-TRUE COPY OF DEMAND NO.KR/KK/ENF (3) 2/2005/5886 DT.9.2.05 ISSUED BY R2 RESPONDENT'S EXHIBITS:- NIL okb //True Copy// P.A. to Judge C.K.ABDUL REHIM, J. ------------------------------ W.P.(C)No.6106 OF 2005 ------------------------------ Dated this the 7th day of July, 2009 J U D G M E N T ---------------------- 1. The petitioner is a registered Co-operative Society running a Bank. The petitioner is challenging Ext.P1 notice issued by the 2nd respondent requiring to make its employees members of the scheme framed under the provisions of the Employees Provident Fund & Miscellaneous Provisions Act 1952 (hereinafter the Act for short). Petitioner also seeks to declare that the provisions of the Act and Scheme are not applicable to them. According to the petitioner, a contributory Provident Fund established by the petitioner in the year 1955 was functioning in Bank and contributions, both from employees and employer were being paid to the said scheme since 1955 onwards. The State Government has formulated the Kerala Co- operative Societies Employees Self Financing Pension Scheme, 1994, which came into force with effect from 3.6.1993, and now the petitioner had already enrolled all its employees under that scheme. It is also stated that the employer's contribution with interest available under the former scheme, as on 31.5.1995, was already remitted to the new scheme of 1994. Now the petitioner is continuing remittance to the Pension Scheme 1994, as well as W.P.(C).6106/05 2 the contributions made by the employees are being remitted to the non-contributory Provident Fund maintained by the petitioner. 2. Through Ext.P1 the determining authority under the Act has requested the petitioner Society to make its employees as members of the scheme framed under that Act, on the premise that the provisions of the Act is applicable to the petitioner from 16.8.1997 under Section I(3)(b) of the Act, as it fulfills all conditions stipulated for coverage of the Act, as on that date. The contention of the petitioner is that the petitioner was employing only less than 50 employees earlier and when the petitioner started employing 50 or more employees, as on 16.8.1997, all the employees were covered by the Pension Scheme 1994 formulated by the State Government and therefore the petitioner is not liable to be covered under the provisions of the Act. 3. Ext.P1 notice is issued by the determining authority under the Act. If the petitioner is not an establishment coverable under the provisions of the Act, it is for them to object the proposal before the determining authority and the determining authority has to take a decision based on the objections. Section 7A(1) of the Act provides such an adjudication. Further, statutory remedy against any such decision is also provided by W.P.(C).6106/05 3 way of appeal, under the Act. Therefore the challenge against Ext.P1 notice is highly premature and could not be entertained in a writ petition, even before the petitioner submitting an objection and even before the authority concerned taking any decision after adjudicating on such objection. Therefore it is necessary to relegate the petitioner to the authority provided under the Act to avail remedies under the statute. 4. Hence the petitioner is hereby given liberty to submit objections to Ext.P1 notice before the 2nd respondent. If the petitioner submits any such objections within a period of one month from today, the 2nd respondent or any other authority competent under the provisions of the Act shall adjudicate upon such objections and take a decision thereon, after affording an opportunity of personal hearing to the petitioner. Needless to say that the petitioner can avail statutory remedies available to them in case they are aggrieved by such decision. The writ petition is disposed of as above. C.K.ABDUL REHIM, JUDGE. okb