Allowed

M/S. Super Ply Bend v. Asst.Provident Fund Commissioner

Kerala HC3 Dec 2012WP(C)/15898/2012

Case brief

AI extract

What is this about?

This writ petition sought quashing of an order dismissing an appeal for default. The High Court directed the EPFO Appellate Tribunal to restore the appeal and consider it on merits due to the prior direction of this Court, staying coercive recovery proceedings.

What did the court decide?

Writ petition disposed. Application for restoration of ATA.No.124(7) 10 allowed. Direction to 2nd respondent Tribunal to consider and pass orders on the appeal within three months. Coercive proceeding

M/S. Super Ply Bend Vs Asst.Provident Fund… — Pension and Retirement Benefits | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID

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MONDAY, THE 3RD DAY OF DECEMBER 2012/12TH AGRAHAYANA 1934

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WP(C).No. 15898 of 2012 (J)

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PETITIONER(S):

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M/S. SUPER PLY BEND, REPRESENTED BY ITS PROPRIETRIX NAJMA, CHERUVANNUR, POST FEROKE, KOZHIKODE.

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BY ADVS.SRI.R.SUDHISH

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SMT.M.MANJU SRI.K.R.RANJITH

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RESPONDENT(S):

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1. ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, SUB REGIONAL OFFICE, BAVISHYANIDHI BHAVAN, POST ERANHIPALAM, KOZHIKODE - 673 006.

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2. REGISTRAR,

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EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, SCOPE MINAR, CORE-2, 4TH FLOOR, LAKSHMI NAGAR, NEW DELHI- 110 092.

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3. RECOVERY OFFICER, EMPLOYEES PROVIDENT FUND ORGANISATION, SUB REGIONAL OFFICE, BAVISHYANIDHI BHAVAN, POST ERANHIPALAM, KOZHIKODE - 673 006.

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R1 AND 3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC, P.F.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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WPC.NO.15898/2012 J

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT P1. COPY OF THE ORDER OF THE 1ST RESPONDENT NO.KR/23260/7A ENF.1 (5)/2007/5048.

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EXT P2. COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 04.02.2009.

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EXT P3. COPY OF THE NOTICE DATED 17.03.2010 ISSUED BY THE 2ND RESPONDENT.

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EXT P4. COPY OF THE LETTER SENT BY THE COUNSEL FOR AND BEHALF OF THE PETITIONER DATED 21.04.2010.

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EXT P5. COPY OF THE ACKNOWLEDGEMENT CARD SHOWING RECEIPT OF EXHIBIT P4.

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EXT P6. COPY OF THE ORDER IN ATA NO.124 (7) 10 DATED 03.05.2010.

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EXT P7. COPY OF THE INTERIM ORDER DATED 07.06.2010 IN W.P.(C).NO.16153 OF 2010 OF THIS HONOURABLE COURT.

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EXT P8. COPY OF THE RESTORATION APPLICATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN ATA NO.124(7) 10 DATED 03.06.2010.

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EXT P9. COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P.(C). NO.16153 OF 2010 DATED 09.07.2010.

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EXT P10. COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 13.12.2011.

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EXT P11. COPY OF THE LETTER ISSUED BY THE REGISTRAR OF THE 2ND RESPONDENT TRIBUNAL.

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RESPONDENTS' EXHIBITS: N I L

/TRUE COPY/

P.A.TO JUDGE

Kss

HARUN-UL-RASHID, J.

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W.P.(C).No.15898 Of 2012 ---------------------Dated this the 3^rd day of December, 2012.

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J U D G M E N T

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The writ petition is filed seeking to quash Ext.P10 order and for other incidental reliefs.

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The petitioner is the proprietrix of M/s. Super Ply Bend. The 1^st respondent passed Ext.P1 order dated 8.10.2007 under Section 7A of the Employees Provident Funds and Miscellaneous Provisions Act against the petitioner. The petitioner filed a review under Section 7B of the Act. The review petition was dismissed. Ext.P2 is the order dated 4.2.2009 determining the dues payable by the petitioner under Section 7A of the Act for the period from 11/2006 to 06/2007. By Ext.P2, the 1^st respondent dismissed the application for review filed under Section 7B of the Act. The petitioner preferred appeal as ATA.No.124(7) 10 before the 2^nd respondent Tribunal. On the

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date fixed for appearance of the parties, the appellant was not represented either by an advocate or by an authorised person. Therefore, the Tribunal passed Ext.P6 order on 3.5.2010 dismissing the appeal for default. The petitioner submitted

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W.P.(C).No.15898 Of 2012

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Ext.P8 application for restoration. The petitioner challenged Ext.P6 order before this Court in W.P.(C).No.16153/2010. This Court by judgment dated 9.7.2010 in the said writ petition directed the Tribunal to consider and pass appropriate orders on the application for restoration preferred by the petitioner in accordance with law and further directed to pass final orders, within a period of two months from the date of receipt of a copy of the judgment. Pursuant to the direction issued by this Court, the matter was taken up for consideration by the Appellate Tribunal and the Tribunal passed Ext.P10 order dated 13.12.2011. The Tribunal dismissed the application finding that there is no infirmity in the order dated 3.5.2010 passed by the Tribunal and therefore, present application for restoration of appeal stands dismissed.

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Ext.P8 is the copy of the application submitted to restore ATA.No.124(7) 10 to the file of the Tribunal. In the application it is stated that the Tribunal directed the petitioner to appear on 3.5.2010, that the proprietrix of the petitioner was sick and she was not in a position to travel up to Delhi for conducting

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the case during that period, that the financial condition of the

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W.P.(C).No.15898 Of 2012

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proprietrix was very bad and that she is not in a position to send a lawyer to Delhi for conducting the case. It is further stated that therefore, the appellant engaged a lawyer at Kozhikode and the lawyer sent a letter to the Tribunal for adjourning the case and to transfer the case to the camp sitting at Cochin. The appellant also produced along with the application for restoration the copy of the notice and copy of the letter sent by the counsel for the petitioner as annexures A & B. It is also stated that the petitioner was not able to appear before the Tribunal due to the reasons stated in annexure B letter and there is no willful disobedience on the part of the petitioner in not appearing before the Tribunal.

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The Tribunal did not consider any of the reasons stated in the application submitted for restoration of the appeal. This Court specifically directed the Tribunal in Ext.P9 judgment to consider and pass appropriate orders on Ext.P8 application for restoration. In spite of the fact that such a direction was issued by this Court, the Tribunal dismissed the application for restoration without considering the application on merits. The fact remains is that the appeal at no point of time has been

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W.P.(C).No.15898 Of 2012

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considered on merits. The petitioner did not get a proper opportunity to substantiate his case on merits. In the facts and circumstances of the case, this Court is of the view that an opportunity shall be given to the petitioner to contest the case on merits. It is true that neither the appellant nor any authorised representative or any lawyer was present on the date fixed for hearing. In the interest of justice, this Court is of the view that the petitioner shall be given an opportunity to appear and contest the case on merits.

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In the said facts and circumstances, the writ petition is disposed of. Ext,P8 application filed for restoration of ATA.No.124(7) 10 before the Employees Provident Fund Appellate Tribunal is allowed. There will be a direction to the 2^nd respondent Tribunal to consider and pass appropriate orders on ATA.No.124(7) 10, within a period of three months from the date of receipt of a copy of this judgment. All coercive proceedings initiated for recovery of the amount due as per Exts.P1 & P2 shall be kept in abeyance till the disposal of ATA.No.124(7) 10.

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HARUN-UL-RASHID, Judge.

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bkn/-

M/S. Super Ply Bend v. Asst.Provident Fund Commissioner

Case brief

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M/S. Super Ply Bend v. Asst.Provident Fund Commissioner

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