Institute of Human Resources Development (IHRD) V. The Assistant Provident Fund Commissioner, Employees' Provident Fund Organization and The Employees Provident Fund Appellate Tribunal, New Delhi

WP(C)/8298/2011

AI Insights

The case involves the Institute of Human Resources Development (IHRD), an autonomous body under the Government of Kerala, which contested the applicability of the Employees Provident Funds and Miscellaneous Provisions Act, 1952, to its Contributory Provident Fund Scheme. The Assistant Provident Fund Commissioner had ordered the enforcement of the Act, leading to a significant financial demand from IHRD. The petitioner challenged this order and sought interim relief, which was initially granted by the High Court. However, the enforcement of the order was contested due to procedural delays and the impact of a fire at the Tribunal's office in New Delhi, which affected the filing and processing of the appeal. The High Court's decision emphasized the need for a swift resolution by the Appellate Tribunal and temporarily halted any recovery actions based on the disputed order.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 808666 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 06-03-2012
• Assessment Year: misc
• Other Referred Cases: WP(C) No.27520 of 2007
• Laws Referred To: Employees Provident Funds and Miscellaneous Provisions Act, 1952, Income Tax Act, 1961, Travancore-Cochin Literary, Scientific and Charitable Societies Act, 1955
• Result in Favour of: Applicant
• Court: HIGH COURT
• Department Lawyers: S GOPAKUMARAN NAIR; M CHANDRA BOSE
• Assessee Lawyers: N RAGHURAJ
• Keywords: Appeal; Employees Provident Fund; Enforcement; Interim relief; Contributory Provident Fund Scheme
• Section: 7A; 7B; 16(1)(b); 7I

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN TUESDAY, THE 6TH DAY OF MARCH 2012/16TH PHALGUNA 1933 WP(C).No. 8298 of 2011 (J) -------------------------- PETITIONER(S): ------------- INSTITUTE OF HUMAN RESOURCES DEVELOPMENT (IHRD), PRAJOE'S TOWERS, VAZHUTHACAUD THIRUVANANTHAPURAM, REPRESENTED BY THE PRINCIPAL MODEL ENGINEERING COLLEGE, THRIKKAKARA, ERNAKULAM. BY ADV. SRI.N.RAGHURAJ RESPONDENT(S): -------------- 1. THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES' PROVIDENT FUND ORGANIZATION, BHAVISHYANIDHI BHAVAN, PATTOM THIRUVANANTHAPURAM-695 004. 2. THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, NEW DELHI, REPRESENTED BY ITS REGISTRAR, PIN-110 001. BY DR.S.GOPAKUMARAN NAIR (SR.) BY SRI.M.CHANDRA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RK WP(C).No. 8298 of 2011 (J) -------------------------- APPENDIX PETITIONERS EXHIBITS: EXT.P1: COPY OF GO(RT)NO.998/1996/HIGHER EDUCATION DATED 19.08.1996 EXT.P2: COPY OF THE PROCEEDINGS BEARING C NO.305/1/1996-97 DATED 03.02.1997 EXT.P3: COPY OF THE COMMUNICATION REPLY BEARING NO.B2/73505/HRD DATED 07.11.2005 EXT.P4: COPY OF THE BEARING NO.FIN.B2/7352005/HRD DATED 21.11.2006 EXT.P5: COPY OF THE COVERING LETTER DATED 06.02.2007 EXT.P6: COPY OF THE PROCEEDINGS BEARING NO.KR/12387/NF.I(II)2007 DATED 07.08.2007 EXT.P7: COPY OF THE STATUTORY APPEAL UNDER SECTION 7(1) OF EPF AND MP ACT EXT.P8: COPY OF JUDGMENT DATED 16.01.2008 IN W.P.(C)NO27529/2007 EXT.P9: COPY OF THE DEMAND DRAFT DATED 28.01.2008 EXT.P10: COPY OF THE POSTAL RECEIPT DATED 29.01.2008 EXT.P11: COPY OF THE A/D CARD EXT.P12: COPY OF THE POSTAL RECEIPT DATED 11.02.2008 EXT.P13: COPY OF THE A/D CARD EXT.P14: COPY OF THE LETTER DATED 22.12.2010 EXT.P15: COPY OF THE COVERING LETTER DATED 11.01.2011 EXT.P16: COPY OF REPORT COMMUNICATION DATED 03.03.2011 RESPONDENTS EXHIBITS: NIL /TRUE COPY/ PA TO JUDGE RK P.N.RAVINDRAN, J. -------------------------------------- WP(C)No.8298 of 2011 --------------------------------------- Dated this the 6th day of March, 2012 J U D G M E N T The petitioner is an autonomous body wholly owned and controlled by the Government of Kerala and a society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Act, 1955. The petitioner introduced a Contributory Provident Fund Scheme for its employees with effect from 1.3.1990. The terms thereof were modified by the Government and the Scheme approved with effect from 1.3.1990 as per Ext.P1 Government order dated 19.8.1996. The Contributory Provident Fund Scheme was also recognised by the Commissioner of Income Tax, Trivandrum under rule 3(1) of Part A of the Schedule to the Income Tax Act, 1961, as can be seen from Ext.P2 proceedings dated 3.2.1997. 2. While matters stood thus, the Assistant Provident Fund Commissioner took steps to cover the petitioner institution under the provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952, herein after referred to as WP(C)No.8298 of 2011 -2- “the Act” for short. The petitioner objected to such coverage on the ground that it is excluded under section 16 (1) (b) of the Act. Overruling the said contention the first respondent issued Ext.P6 order dated 30.4.2007 under section 7 A of the Act. It was held that by virtue of the notification dated 19.2.1982 published in the Gazette of India dated 6.3.1982, the provisions of the Act are applicable to the petitioner with effect from 31.1.1990. The first respondent also directed the petitioner to remit the sum of Rs.1,04,00,103.60 by way of contribution for the period from January 1990 to March 2007. A copy of Ext.P6 was despatched to the petitioner by registered post on 7.8.2007. Aggrieved by Ext.P6 order the petitioner filed an application under section 7 B of the Act seeking a review thereof. While the review petition was pending, the first respondent took steps to enforce Ext.P6. The petitioner thereupon filed WP(C) No.27520 of 2007 in this Court wherein an interim order was passed staying further proceedings pursuant to Ext.P6 order. 3. While WP(C) No.27520 of 2007 was pending, the application filed by the petitioner under section 7 B of the Act was dismissed by order passed on 4.10.2007. Thereupon the WP(C)No.8298 of 2011 -3- petitioner filed Ext.P7 appeal under section 7 I of the Act before the Employees Provident Fund Appellate Tribunal, New Delhi. The memorandum of appeal, which bears the date 9.1.2008 was sent by speed post to the Registrar, Employees Provident Fund Appellate Tribunal, New Delhi from the High Court Post Office on 29.1.2008 as can be seen from Ext.P10. It is stated that the said postal article was returned with the endorsement that on account of a fire accident in the office of the Tribunal at New Delhi, the office is not functioning. It is stated that the petitioner thereafter forwarded the appeal memorandum on 11.2.2008 by speed post from High Court Post Office and that it was delivered in the office of the Tribunal on 18.2.2008. WP(C) No.27520 of 2007 thereafter came up for consideration before this Court on 16.1.2008. Taking note of the fact that the petitioner had by then filed an appeal before the Employees Provident Fund Appellate Tribunal, a copy of which was produced as Ext.P10 in that case, a learned single Judge of this Court disposed of the said writ petition with a direction to the Employees Provident Fund Appellate Tribunal, New Delhi to pass appropriate orders on the interim relief sought by the petitioner in the appeal. This WP(C)No.8298 of 2011 -4- Court also directed that till orders are passed by the Employees Provident Fund Appellate Tribunal, New Delhi on the interim relief sought by the petitioner, the interim order passed by this Court in the writ petition shall continue to operate. This Court also directed that the period during which the petitioner was prosecuting the application under section 7B before the first respondent and WP(C) No.27520 of 2007 in this Court, shall be excluded while computing the period of limitation prescribed for filing an appeal. 4. The first respondent thereafter issued Ext.P14 letter dated 22.12.2010 stating that the petitioner has not so far produced any evidence regarding the filing of the appeal or furnished the number of the appeal. By that letter, the petitioner was called upon to forward a copy of the appeal memorandum filed by it before the Employees Provident Fund Appellate Tribunal, New Delhi and the number of the appeal, failing which the petitioner was cautioned that steps will be taken to enforce Ext.P6 order. The Director of the petitioner thereupon sent Ext.P15 letter dated 11.1.2011 wherein it was stated as follows: “We are in receipt of the notice dated 22.12.2010 and noticed the requirements mentioned in the above said notice. It WP(C)No.8298 of 2011 -5- is stated that the appeal was preferred by this organisation before the Appellate Tribunal for provident Fund, at Delhi. A copy of the said appeal is enclosed. This was sent previously, but the same was returned on account of the fact that the office of the Appellate Tribunal was not working due to the fire incident. Later, when it was returned, it was sent back by registered post. A copy of the registered receipt is also enclosed. Thereafter no steps were taken by the Appellate Authority to hear the appeal. Any way we are taking steps to expedite the appeal and will see that the appeal is disposed of at the earliest. 5. The first respondent in turn sent Ext.P16 letter dated 28.2.2011, stating that as the petitioner has not produced any evidence to show that an appeal has been filed challenging Ext.P6 order before the Employees Provident Fund Appellate Tribunal, he has no option but to proceed to enforce Ext.P6. The first respondent accordingly directed the petitioner to comply with Ext.P6 order and to remit the amount assessed as per that order within one week, failing which the petitioner was threatened with legal action including attachment of bank accounts and other recovery steps. The instant writ petition was thereupon filed challenging Ext.P16 and seeking the following reliefs: (i) to issue a writ of certiorari such other writ direction or order leading to Ext.P16 letter and to quash the same. (ii) to issue a writ of Mandamus or such other writ, iection or WP(C)No.8298 of 2011 -6- order commanding the 1st respondent and the officers under him to refrain from taking any recovery steps to realize the amount determined as per Ext.P6 order before the consideration and disposal of Ext.P7 appeal on merit. (iii) to issue a writ of Mandamus or such other writ, direction or order commanding the 2nd respondent to take up Ext.P7 appeal and dispose of the same on merit with notice to the petitioner. 6. It is contended that when the memorandum of appeal was sent by registered post in the first instance it was returned on the ground that the office of the Tribunal is not functioning after a fire accident and that thereafter, the appeal memorandum was again sent by post and it was delivered in the office of the Tribunal on 18.2.2008 and therefore, the petitioner cannot be proceeded against for enforcement of Ext.P6 order so long as the appeal filed from that order is pending before the Employees Provident Fund Appellate Tribunal and has not been disposed of. 7. The learned standing counsel appearing for the first respondent has filed a statement dated 10.8.2011 raising various contentions. However, the case set out by the petitioner that the memorandum of appeal was sent initially by registered post on 29.1.2008 and thereafter on 11.2.2008 is not disputed. Though initially notice of this writ petition was sent to the Employees Provident WP(C)No.8298 of 2011 -7- Fund Appellate Tribunal on 28.3.2011 with hearing date fixed as 7.4.2011, the notice was not returned after service. The petitioner was therefore directed to take fresh steps to serve notice on the Employees Provident Fund Appellate Tribunal, by order passed on 14.10.2011. The petitioner accordingly took fresh steps and thereupon notice was again issued to the Employees Provident Fund Appellate Tribunal on 4.1.2012 with hearing date fixed as 25.1.2012. That notice was also not returned after service. Thereupon, on application filed by the petitioner as I.A.No.2601 of 2012 under sub rule (2) of rule 51 of the Kerala High Court Rules, this Court declared that the second respondent has been duly served. 8. I heard Sri.N.Raghuraj, learned counsel appearing for the petitioner and Sri.A Rajasimhan, learned standing counsel appearing for the first respondent. I have also gone through the pleadings and the materials on record. The documents produced by the petitioner especially Ext.P9 draft, Exts.P10 and P12 postal receipts and Ext.P13 acknowledgment card prima facie show that the petitioner had sent a postal article weighing approximately 1185 grams to the Registrar, Employees Provident Fund Appellate Tribunal, New Delhi. The petitioner had also paid a postal charge of Rs.320/-. Ext.P13 postal acknowledgement card which was received back by the petitioner discloses that the postal article had reached New Delhi on 18.2.2008. WP(C)No.8298 of 2011 -8- The petitioner has thus prima facie shown that it had filed an appeal challenging Ext.P6 order before the Employees Provident Fund Appellate Tribunal. This Court had by Ext.P8 judgment directed the Employees Provident Fund Appellate Tribunal to consider the interim relief sought by the petitioner in that appeal and to pass orders on the interim relief sought by the petitioner expeditiously and had also observed the period during which the petitioner was prosecuting the application under section 7B of the Act and WP(C) No.27520 of 2007 in this Court, shall be excluded while computing the period of limitation prescribed for filing the appeal from Ext.P6. Though more than four years have passed after Ext.P8 judgment was delivered and nearly 4 years have passed after the petitioner sent the appeal memorandum challenging Ext.P6 order to the Employees Provident Fund Appellate Tribunal, New Delhi, the Appellate Tribunal has not yet passed orders on the interim relief sought by the petitioner or disposed of the appeal itself. In such circumstances, I am of the opinion that the first respondent should await the outcome of the appeal before proceeding to enforce of Ext.P6. I accordingly dispose of the writ petition with the following directions: The Employees Provident Fund Appellate Tribunal, New Delhi shall dispose of Ext.P7 appeal filed by the petitioner form Ext.P6 order passed by the first respondent expeditiously and in any event within WP(C)No.8298 of 2011 -9- three months from the date on which either the petitioner or the first respondent produces a certified copy of this judgment before the Registrar, Employees Provident Fund Appellate Tribunal, New Delhi. The Employees Provident Fund Appellate Tribunal shall before passing orders on Ext.P7 appeal issue notice to the petitioner as well as the first respondent giving them at least two weeks notice of the date fixed for hearing and afford both the parties an opportunity of being heard. Until such time as orders are passed on Ext.P7 appeal, recovery pursuant to Ext.P6 order shall be kept in abeyance. Having regard to the fact that the appeal has been pending for the past more than 4 years and the fact that the petitioner is an autonomous body wholly owned by the Government of Kerala, I deem it fit and proper to direct that the stipulation regarding pre-deposit of 75% of the amount assessed shall stand waived. Sd/- P.N.RAVINDRAN, rkc JUDGE. // true copy// PA to Judge "