Dismissed

Kerala Automobiles Ltd., v. the Asst.Provident Fund Commissioner

Kerala HC3 Feb 2020WP(C)/320/2019

Case brief

AI extract

What is this about?

The Kerala High Court dismissed writ petitions filed by Kerala Automobiles Ltd. challenging orders under the EPF Act. The court held that the petitioner, having failed to comply with previous orders to clear dues, is not entitled to discretionary relief under Article 226 and that challenging a show cause notice is not maintainable.

What did the court decide?

The writ petitions stand dismissed. No reconsideration of the order dismissing W.P.(C) No. 12847/2019 against the show cause notice.

Kerala Automobiles Ltd., Vs the… — Pension and Retirement Benefits | Kerala HC (2020)

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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 RAJA VIJAYARAGHAVAN V

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MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941

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WP(C).No.320 OF 2019(L)

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PETITIONER:

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KERALA AUTOMOBILES LTD., ARALUMOODU.P.O., NEYYATTINKARA, THIRUVANANTHAPURAM - 695 123, REPRESENTED BY THE MANAGING DIRECTOR, ER.A. SHAJAHAN

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BY ADV. SMT.K.K.RAZIA

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RESPONDENTS:

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1 THE ASST.PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM 695 004

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2 THE MANAGER, CANARA BANK, SASTHAMANGALAM THIRUVANANTHAPURAM 695 010

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3 MANAGER , HDFC BANK, NEYYATTINKARA, THIRUVANANTHAPURAM 695 121

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4 THE MANAGER, CANARA BANK, BALARAMAPURAM, THIRUVANANTHAPURAM 695 501

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ADDL.R5 KAL RETIRED EMPLOYEES ASSOCIATION, REPRSENTED BY ITS GENERAL SECRETARY, G.SURESHKUMAR, S/O GOPALAKRISHNA PILLAI, AGED 59, RSIDING AT KUTTIYIL SAGARA, ALUMMOODU P.O., MAMPUZHA, KOLLAM – 691 577 IMPLEADED VIDE ORDER DATED 03.02.2020 IN I.A.NO.2 OF 2019 R1 BY ADV. SRI.N.N.SUGUNAPALAN (SR.) R1 BY SRI.S.SUJIN, SC, EPFO R5 BY ADV. R.T.PRADEEP R5 BY ADV. SMT.M.BINDUDAS R5 BY ADV. SRI.K.C.HARISH

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.02.2020, ALONG WITH WP(C).12847/2019(E), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.320 OF 2019 2

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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 RAJA VIJAYARAGHAVAN V MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941

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WP(C).No.12847 OF 2019(E)

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PETITIONER:

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KERALA AUTOMBILES LTD. ARALUMOODU.P.O., NEYYATTINKARA, THIRUVANANTHAPURAM REPRESENTED BY THE MANAGING DIRECTOR, A.SHAJAHAN.

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BY ADV. SMT.K.K.RAZIA

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RESPONDENTS:

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1 THE ASST.PROVIDENT FUND COMMISSIONER EMPLOYEES' PROVIDENT FUND ORGANISATION, REGIONAL OFFICE, BHAVISHYANIDHIBHAVAN, PATTOM, THIRUVANANTHAPURAM.

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2 ADDL.R2. KAL RETIRED EMPLOYEES ASSOCIATION REPRESENTED BY ITS GENERAL SECRETARY, G.SURESH KUMAR, S/O.GOPALAKRISHNA PILLAI, AGED 59, RESIDING AT KUTTIYIL SAGARA, ALUMMOODU P.O, MAMPUZHA, KOLLAM - 691 577.

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ADDL.R2 IS IMPLEADED AS PER ORDER DATED 11/10/2019 IN I.A.NO.1/2019 IN WPC 12847/2019.

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R1 BY ADV. SMT.NITA.N.S, SC R2 BY ADV. R.T.PRADEEP R2 BY ADV. SMT.M.BINDUDAS R2 BY ADV. SRI.K.C.HARISH

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.02.2020, ALONG WITH WP(C).320/2019(L), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.320 OF 2019 3

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JUDGMENT

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These petitions have been filed by the Kerala Automobiles Limited, (‘KAL’ for short), an undertaking of the Government of Kerala which is engaged in the manufacture of three wheelers. The petitioner is indubitably an establishment covered by the Employees Provident Fund and Miscellaneous Provisions Act, 1952 ('EPF Act' for short). Since the establishment failed in remitting the contributions and accumulations payable under the EPF Act and the sundry schemes formulated under that statute, proceedings were initiated by the 1^st respondent for realising the arrears, damages as well as interest, which is said to be due from the year 2000. The total amount due as on date comes to Rs.4,96,09,474/- (Rupees Four Crores Ninety Six Lakhs nine thousand four hundred and seventy four only).

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W.P.(C) No.320 of 2019 is filed challenging Ext.P1 show cause notice by which a sum of Rs.3,97,75,712/- was ordered to be paid for the accumulated arrears and the consequent order passed under Section 8F of the EPF Act by which the Managers of the HDFC Bank, Neyyattinkara Branch, the Canara Bank, Balaramapuram and

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WP(C).No.320 OF 2019 4

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Sasthamangalam Branches were ordered to put on hold the accounts maintained by the petitioner with those banks with a further direction to them to transfer the amounts to the EPF.

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W.P.(C) No.12847 of 2019 has been preferred by the petitioner challenging Ext.P1 order passed under Section 7A of the EPF Act as per which the petitioner herein has been called upon to appear before the 1^st respondent for an enquiry to determine the amount payable for the period from 9/2017 to 1/2019.

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Smt. K.K.Raziya, the learned counsel appearing for the petitioner, submitted that the petitioner is a Government Company which is facing stiff competition from other manufactures and its financial condition is very grim. The company was once referred to the BIFR and it is with the assistance of the Government that they are moving forward. The net loss is in excess of Rs.6.44 Crores and the accumulated loss is 71.40 Crores. According to the learned counsel, if Exts.P8 to P12 orders passed in W.P.(C) No.320 of 2019 is allowed to stand, the petitioner will not be able to carry out financial transactions and the company is likely to go bust. Insofar as W.P.(C) No.12847 of 2019 is concerned, it is submitted that though Ext.P1 is only a show cause notice, the petitioner being in financial doldrums, will not be in a position to pay the amounts.

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WP(C).No.320 OF 2019 5

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Smt. Nita.N.S., the learned standing counsel appearing for the EPF organisation, has vehemently opposed the prayer. The learned counsel would point out that the petitioner had earlier approached this Court by filing Writ Petitions and this Court had granted indulgence and had permitted the petitioner to clear off the dues in installments. However, the directions of this Court have not been complied with. In the counter affidavit filed on 23.10.2019 in W.P.(C) No.12847 of 2019, the 1^st respondent has provided the details of cases filed by the petitioner. It is contended that the petitioner having failed to comply with the earlier directions is not entitled to any discretionary relief. Insofar as W.P.(C) No.12847 of 2019 is concerned, the learned counsel submits that the petitioner has challenged the show cause notice under Section 7A of the EPF Act. A final order will be passed under Section 7A and if the petitioner is aggrieved, they can very well challenge the order under Section 7I of the EPF Act. Hence no interference is warranted, is the submission.

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The Retired Employees Association of the petitioner has filed an application seeking impleadment which was allowed. Sri. R.T. Pradeep, the learned counsel appearing for the Retired Employees Association, submitted that the petitioner had been remitting pension contribution till the year 2018 but thereafter, the same was stopped.

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WP(C).No.320 OF 2019 6

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According to the learned counsel, the petitioner had received financial assistance of about 28 Crores from the State to pay salary and retirement benefits to the employees and also to develop and manufacture electronic autorickshaws. According to the learned counsel, the petitioner is struggling due to financial mismanagement and if necessary directions are not issued, the present and retired employees will have to bear the brunt and live without pension and other benefits.

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I have considered the submissions advanced. I find that a series of writ petitions were filed earlier by the petitioner and considering the grave financial situation, this Court had granted sufficient indulgence to the petitioners on earlier occasions. While disposing W.P.(C) No.34697 of 2016, this Court had directed the petitioner to clear off the arrears amounting to about One Crore in 24 installments. However, only 11 installments were paid and that too, a sum of just Rs.82,791/-. Later, W.P.(C) No.12852 of 2017 was preferred and this Court had permitted the petitioner to remit the arrears in 30 installments. The said order was not complied with. Later, W.P.(C) No.36090 of 2017 was filed and this Court had permitted the petitioner to clear off the dues of about 1.26 Crores in 15 installments. The petitioner did not carry out payment of even one

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WP(C).No.320 OF 2019 7

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installment. It is thereafter that these writ petitions are filed. The petitioner having failed to comply with the earlier orders is not entitled to any discretionary relief in exercise of powers under Article 226 of the Constitution of India. Insofar as W.P.(C) No.12847 is concerned, the writ petition is preferred against a show cause notice. I am of the view that the same is not maintainable. At any rate, I am not inclined to grant any of the reliefs sought for in these petitions.

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These writ petitions will stand dismissed.

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Sd/-

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RAJA VIJAYARAGHAVAN V

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JUDGE

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sru

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WP(C).No.320 OF 2019 8

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APPENDIX OF WP(C) 320/2019

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	A COPY OF THE NOTICE DATED 1.8.18
EXHIBIT P2	A TRUE COPY OF THE PROCEEDINGS DATED 14.9.2017
EXHIBIT P3	A COPY OF THE REPRESENTATION DATED 15.10.2018 SUBMITTED BEFORE THE 1ST RESPONDENT
EXHIBIT P4	A COPY OF THE DAILY PROCEEDINGS NO. KR/TVM/10813/RECOVERY/2018 DATED 22.10.2018
EXHIBIT P5	A COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1STRESPONDENT DATED 29.10.2018
EXHIBIT P6	A COPY OF THE DAILY PROCEEDINGS NO. KR/TVM/10813/RECOVERY/2018 DATED 2.11.2018
EXHIBIT P7	A COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT TO THE VILLAGE OFFICER NO. KR/TVM/10813/RECOVERY /2018 DATED 5.11.2018
EXHIBIT P8	A COPY OF THE ORDER ISSUED BY THE FIRST RESPONDENT TO THE 2ND RESPONDENT DATED 19.12.18
EXHIBIT P9	A COPY OF THE ORDER ISSUED BY THE FIRST RESPONDENT TO THE 3RD RESPONDENT DATED 21.12.2018
EXHIBIT P10	A COPY OF THE ORDER ISSUED BY THE FIRST RESPONDENT TOT EH 4TH RESPONDENT DATED 21.11.17
EXHIBIT P11	A COPY OF THE ORDER ISSUED BY THE FIRST RESPONDENT TO THE 4TH RESPONDENT DATED 27.7.18
EXHIBIT P12	A COPY OF THE ORDER ISSUED BY THE FIRST RESPONDENT TO THE 4TH RESPONDENT DATED 1.11.18.

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WP(C).No.320 OF 2019 9

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APPENDIX OF WP(C) NO.12847/2019

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE NOTICE DATED 02.04.2019 RESPONDENTS EXHIBITS: EXHIBIT R1 (a) TRUE COPY OF THE ORDER DATED 03.05.2019 ISSUED UNDER SECTION 7A OF THE ACT

Kerala Automobiles Ltd., v. the Asst.Provident Fund Commissioner

Case brief

What is this about?

What did the court decide?

Kerala Automobiles Ltd., v. the Asst.Provident Fund Commissioner

Case brief

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