Dismissed

The Cochin Malabar Estates & Industries v. the Asst.Provident Fund Commissioner

Kerala HC16 Jan 2012WP(C)/1883/2006

Case brief

AI extract

What is this about?

A single-judge bench dismissed a writ petition challenging damages under Section 14B and an interest recovery order of the EPF Act. The court held that entertaining the petition after the statutory appeal period expired would amount to a fraud on the statute, relying on a prior Division Bench decision.

What did the court decide?

Writ petition dismissed without entertaining the challenge to the EPF orders due to expiry of limitation period.

The Cochin Malabar Estates & Industries Vs… — Pension and Retirement Benefits | Kerala HC (2012)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE S.SIRI JAGAN

¶4

MONDAY, THE 16TH DAY OF JANUARY 2012/26TH POUSHA 1933

¶5

WPC.No. 1883 of 2006 (Y)

¶6

PETITIONER(S):

¶7

THE COCHIN MALABAR ESTATES & INDUSTRIES LTD., MALABAR HOUSE 56, BRISTOW ROAD WILLINGON ISLAND, KOCHI 3, REPRESENTED BY ITS GENERAL MANAGER, MR.S.D.BHATTER.

¶8

BY ADVS.SRI.E.K.NANDAKUMAR

¶9

SRI.A.K.JAYASANKAR NAMBIAR

¶10

RESPONDENT(S):

¶11

1. THE ASST.PROVIDENT FUND COMMISSIONER COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION SUB REGIONAL OFFICE, P.B.NO.1806, ERANHIAPALAM KOZHIKODE 673 006.

¶12

2. THE RECOVERY OFFICER, O/o THE RECOVERY OFFICER, EMPLOYEES PROVIDENT FUND ORGANISATION SUB REGIONAL OFFICE, P.B.NO.1806, ERANHIPALAM KOZHIKODE 673 006.

¶13

R1 AND R2 BY SRI.THOMAS MATHEW NELLIMOOTTIL,SC, P.F.

¶14

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶15

¶16

WPC NO. 1883/2006

¶17

APPENDIX

¶18

PETITIONER'S EXHIBITS

¶19

P1 COPY OF THE SHOW CAUSE NOTICE DATED 18.11.2005

¶20

P2 COPY OF THE MEMORANDUM DATED 24.12.2005

¶21

P3 COPY OF THE PROCEEDINGS KR/KK/340/SRO/PD/2004/Enf 1(1) DATED 28.10.2004

¶22

P4 COPY OF THE JUDGMENT IN O.P. NO. 31691/2000-W DATED 10.11.2000

¶23

P5 COPY OF THE CIRCULAR NO. P.G.CELL/3(3)86/DAM DATED 29.05.1990

¶24

P6 COPY OF THE TELEGRAM SENT BY THE 2ND RESPONDENT

¶25

RESPONDENTS' EXHIBITS

NIL

// TRUE COPY //

P.A. TO JUDGE

S. SIRI JAGAN, J.

¶31

- - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.1883 of 2006

¶32

- - - - - - - - - - - - - - - - - - - - - - - Dated this the 16^th day of January, 2012

¶33

J U D G M E N T

¶34

The petitioner is an establishment covered under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. On account of severe financial crisis faced by the plantation industry as a whole in India, particularly in Kerala, which affected the petitioner also severely, the petitioner was not able to pay wages to its employees in one of its estates namely Kinalur Estate and consequently there was delay in remitting contributions under the Act. Subsequently the petitioner paid off the entire dues. By Ext.P3, an amount of Rs.46,68,414/- has been imposed on

¶35

the petitioner as damages under Section 14B of the Act. Ext.P1 order has also been issued, demanding interest under Section 7Q of the Act. The petitioner has obtained facility to pay off the interest under Section 7Q in installments. The petitioner is now aggrieved by the demand for damages under Section 14B. The petitioner

¶36

W.P.(C)No.1883 of 2006

¶37

-2-

¶38

seeks the following reliefs:

¶39

“a) Issue a writ of certiorari or other appropriate Writ direction or order and to quash Ext.P1 order of the 2^nd respondent.

¶40

b) issue a writ of mandamus or other appropriate writ, direction or order and to consider Ext.P2 representation of petitioner and to permit the petitioner to pay of the amounts of interests in instalments.

¶41

c) issue a writ of certiorari or other appropriate Writ direction or order and call for the records leading to Ext. P3 order and quash the same.

¶42

d) In the alternative to prayer C above, to permit the petitioner to prefer statutory appeal against Exhibit P3 by condoning of delay and to direct that the appeal be considered by the Appellate Authority on merits.

¶43

Ext.P3 order is dated 28.10.2004. The petitioner is challenging the same by this writ petition filed on 19.01.2006. The Act itself provides for an appeal against Ext.P3 order. But the same should have been filed within the period prescribed in that Act. Although there is a provision for condonation of delay, the Tribunal can exercise the powers to condone delay only to a specified period. Going by the same, the appeal should have been filed at least within 120 days of receipt of Ext.P3, even with a petition to condone delay. Admittedly this writ petition

¶44

W.P.(C)No.1883 of 2006

¶45

-3-

¶46

itself has been filed long after that period was over. Perhaps had the petitioner filed this writ petition itself within the said period of 120 days, this Court could have exercised the discretionary jurisdiction under Article 226, overlooking the fact that an alternate remedy by way of appeal was available. This Court has, in Assistant Commissioner of Central Excise v. Krishna Poduval [2005 (4) KLT 947 ], held that proceedings under Article 226 cannot be invoked to resurrect a time barred claim in respect of a tax levy. I am of opinion that if I entertain this writ petition notwithstanding the limitation prescribed in the Act, that would be a fraud on the statute since the Parliament imposed that restriction to see that there is finality to proceedings under the Act. Further if such writ petitions are entertained the period of limitation prescribed under that statute becomes meaningless because even after the period of limitation is over persons who did not avail of the appellate remedy within the limitation period would have to be permitted to challenge such orders under Article

¶47

W.P.(C)No.1883 of 2006

¶48

-4-

¶49

226 of the Constitution of India, which according to me is against the objects of the statute. Therefore, I do not think that this Court is justified in interfering with Ext.P3 order which has been filed more than one year after passing of Ext.P3 order, particularly in view of the above said decision of a Division Bench of this Court. In the above circumstances, this writ petition is dismissed.

¶50

Sd/-

¶51

S. SIRI JAGAN JUDGE //True copy//

¶52

P.A. TO JUDGE

¶53

shg/

The Cochin Malabar Estates & Industries v. the Asst.Provident Fund Commissioner

Case brief

What is this about?

What did the court decide?

The Cochin Malabar Estates & Industries v. the Asst.Provident Fund Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

P.R.Aswani Raj Vs Amith Mallick

Dennison Vs Babu, Branch Manager, Canara Bank

Sebastian Joseph Vs Mohan.P.K

Ajith Kumar D Vs State of Kerala

C.S.Sujathakumari Vs the Authorised Officer,Thiruvananthapuram

B.Jayaprakasan Vs Kerala State Electricity Board