K.K.Mathai Vs. Employees Provident Fund Appellate - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI TUESDAY, THE25H DAY OF MARCH20144TH CHAITHRA, 1936 WP(C).No. 12789 of 2011 (W) ---------------------------- PETITIONER: -------------- K.K.MATHAI, CHAIRMAN, NATIONAL CENTRAL SCHOOL, EZHAMKULAM, PARAKKADAVU POST, PATHNAMTHITTA DISTRICT. BY ADVS.SRI.T.M.CHANDRAN SRI.S.SUJITH SRI.V.A.SASIDHARAN SRI.JOSEPH ALBIN NEDUNTHALLY RESPONDENTS: ----------------- 1. THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, NEW DELHI-110 092.

2. THE ASSISTANT PROVIDENT FUND COMMISSIONER, OFFICE OF THE ASSISTANT PROVIDENT FUND COMMISIONER, THIRUVANANTHAPURAM-695 004.

3. RECOVERY OFFICER, EMPLOYEES PROVIDENT FUND OFFICE, REGIONAL OFFICE THIRUVANANTHAPURAM-695 004. R2 & R3 BY ADV. SRI.N.N. SUGUNAPALAN, SC, P.F. R2 & R3 BY ADV. SMT.T.N.GIRIJA, SC, EPF ORGANISATION THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON2503-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12789 of 2011 (W) :

2. : APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF NOTICE DATED1309.2007 ISSUED BY THE2D RESPONDENT. EXT.P2 : TRUE COPY OF SUMMONS DATED1209.2007 ISSUED BY THE2D RESPONDENT. EXT.P3 : TRUE COPY OF WRITTEN STATEMENT DATED1710.2007 FILED BY THE PETITIONER. EXT.P4 : TRUE COPY OF SUMMONS DATED1404.2008 ISSUED BY THE2D RESPONDENT. EXT.P5 : TRUE COPY OF PROOF AFFIDAVIT DATED0206.2008 FILED BY THE PETITIONER. EXT.P6 : TRUE COPY OF PROCEEDINGS DATED1407.2008 OF THE2D RESPONDENT. EXT.P7 : TRUE COPY OF ORDER

DATED2608.2008 PASSED BY THE2D RESPONDENT. EXT.P8 : TRUE COPY OF CHALLAN DATED0310.2009 FOR RS.2,44,845/-. EXT.P9 : TRUE COPY OF ORDER

DATED2001.2011 PASSED BY THE RESPONDENT NO.1. EXT.P10 : TRUE COPY OF RECOVERY DATED1804.2011 ISSUED BY RESPONDENT NO.3. RESPONDENTS' EXHIBITS: EXT.R2(a) : TRUE COPY OF THE PROFESSIONAL TAX STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE EZHANMULAM PANCHAYATH IN RELATION TO THE ESTABLISHMENT SCHOOL. //TRUE COPY// P.A. TO JUDGE rv A.-V.-RAMAKRISHNA PILLAI, J.

- - - - - - - - - - - - - - - W.P.(C). No. 12789 of 2011 Dated-this the 25th day of March, 2014. - - - - - - - - - - - - - - - JUDGMENT

Exts.P7, P9 and P10 are under challenge.

2. The petitioner is running a school having standards I to IV with effect from 01.06.2004 after obtaining affiliation from the Central Board of Secondary Education. According to the petitioner, the employment strength of the school reached 20 only in August, 2007 for implementation of the provisions of the Employees Provident Fund and Miscellaneous Provisions Act. The grievance of the petitioner is that without issuing any notice and without affording an opportunity of being heard, the 2nd respondent as per Ext.P1 notice covered the school under the Employees Provident Fund and Miscellaneous Provisions Act with effect from 01.06.2004 by allotting Code No. KR/22566 and directed to pay arrears from June, 2004 to August, 2007 within 15 days. By Ext.P2, the petitioner was directed to appear on 25.09.2007 to face the enquiry to W.P.(C) No. 12789/2011 :

2. : determine the quantum of contribution. The petitioner alleges that the quantum was fixed without deciding the question of applicability of the Act before determining the quantum of contribution under Section 7A of the Act. His further case is that he was not given an opportunity to cross examine the Enforcement Officer and to examine his own witness. He filed an appeal against Ext.P7 which was confirmed by Ext.P9. Later, Ext.P10 recovery notice was issued. It is in this context the petitioner has come up before this Court.

3. Arguments have been heard.

4. A detailed counter affidavit has been filed by the 2nd respondent wherein all the allegations made mention of in the writ petition have been refuted. It was contended that the documents produced by the petitioner at the time of Section 7A enquiry except the audited income and expenditure statement and the Trust Deed were forged documents which did not show the actual strength of employees in the establishment. They further contended W.P.(C) No. 12789/2011 :

3. : that sufficient opportunity was given to the petitioner for putting forward his case and also for producing the documents.

5. Arguments have been heard.

6. Ext.P7 is the order passed by the Assistant Provident Fund Commissioner under Section 7A of the Act which would reveal that the enquiry was conducted on several days. However, referring to Ext.P6, the learned counsel for the petitioner submitted that the same would reveal that the petitioner could not cross examine the Enforcement Officer. The reason pointed out in Ext.P6 for denying that opportunity is that the petitioner failed to attend the enquiry without assigning any valid reason, when the Enforcement Officer was present. Therefore, it was found that a further opportunity for cross examination cannot be allowed. However, the fact remains that the Enforcement Officer was not cross examined by the petitioner. Therefore, this Court is of the definite view that it is only just and proper to afford the petitioner an W.P.(C) No. 12789/2011 :

4. : opportunity to cross examine the Enforcement Officer. Therefore, this writ petition is allowed. The impugned orders are quashed and the 2nd respondent is directed to afford the petitioner an opportunity to cross examine the Enforcement Officer after summoning him and to pass appropriate orders thereafter. It is hereby made clear that this Court has not expressed any opinion on the merits of the case and the entire matter is left open to be decided by the 2nd respondent after affording the petitioner and the respondent an opportunity of being heard. This exercise shall be completed within a period of three months. Till this exercise is completed, the existing state of affairs will continue. sd/- A. V. RAMAKRISHNA PILLAI, JUDGE. rv W.P.(C) No. 12789/2011 :

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