Allowed

Muvattupuzha Rubber Marketing v. Employees Provident Fund

Kerala HC13 Dec 2021WP(C)/24247/2011

Case brief

AI extract

What is this about?

The High Court quashed an order of the EPF Appellate Tribunal which dismissed an appeal alleging absence, despite the appellant's counsel being present and argued the matter before the Tribunal. The writ petition, challenging penalty recovery, was disposed of with a direction for fresh hearing.

What did the court decide?

Appellate Tribunal order (Ext.P7) set aside; 1st respondent directed to hear Ext.P3 appeal afresh within three months; interim order continues.

Muvattupuzha Rubber Marketing Vs Employees Provident… — Service and Employment | Kerala HC (2021)

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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 MURALI PURUSHOTHAMAN

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MONDAY, THE 13^TH DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943 WP(C) NO. 24247 OF 2011

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PETITIONER:

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MUVATTUPUZHA TALUK RUBBER MARKETING COOPERATIVE SOCIETY LTD.NO.3094, MUVATTUPUZHA, ERNAKULAM DISTRICT, KERALA, REPRESENTED BY ITS MANAGING DIRECTOR JAMES JOSSON.

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BY ADV SRI.JOSE J.MATHEIKAL

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RESPONDENTS:

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1 EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, SCOPE MINIAR, CORE-II, 4TH FLOOR, LAKSHMI NAGAR, NEW DELHI-110092, REPRESENTED BY ITS REGISTRAR.

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2 ASSISTANT PROVIDENT FUND COMMISSIONER EMPLOYEES PROVIDENT FUND ORGANIZATION, SUB REGIONAL OFFICE, 36/685, BHAVISHYANIDHI BHAVAN, KALOOR, KOCHI682017.

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SRI.S.PRASANTH, SC, EMPLOYEES PROVIDENT FUND ORGANISATION

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SRI.S.GOPAKUMARAN NAIR (SR.) SRI.A.RAJASIMHAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

The petitioner is a Co-operative Society registered under the provisions of the Kerala Co-operative Societies Act and Rules. The society is running a factory by name 'MRM Crumb Rubber Factory' in Muvattupuzha. According to the petitioner, the factory comes under the provisions of the Employees' Provident Fund and Miscellaneous Provisions Act (for short, 'the EPF and MP Act') and it was remitting contributions towards Employees Provident Fund. However, the factory was closed on account of labour strike from 2001 onwards and it was re-opened only in the year 2005.

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According to the petitioner, since the factory was closed down and was facing financial difficulties, they could not remit the contributions to the Employees Provident Fund for the period from May, 2005 to December, 2009. While so, the petitioner was issued with Ext.P1 notice by the second respondent demanding damages under section 14B and interest under section 7Q, of the EPF and MP Act. The petitioner appeared before the second respondent and submitted objections orally. However, the second respondent

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issued Ext.P2 order for recovery of damages under section 14B and imposing interest under section 7Q of the EPF and MP Act.

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Against Ext. P2, the petitioner preferred Ext. P3 statutory appeal before the first respondent. According to the petitioner, the appeal was posted at the Camp sitting of the Appellate Tribunal at Visakhapattanam on 21-06-2011 and the counsel for the petitioner/appellant was heard and orders were reserved. The counsel for the appellant submitted Ext.P6 argument note also. However, the Appellate Tribunal dismissed Ext.P3 appeal by Ext.P7 order dated 12.07.2011. In Ext.P7 order, it is stated: “No argument was advised [sic] by the appellant and the appeal is reserved for order after hearing the respondent as per rule 15”.

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Rule 15(1) of the Employees' Provident Fund Appellate Tribunal (Procedure) Rules, 1997 provides that, where on the date fixed for hearing of the appeal or on any other date to which such hearing may be adjourned, the appellant does not appear when the appeal is called for hearing, the Tribunal may, in its discretion either dismiss the appeal for default or hear and decide it on

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merit.

In the cause title of Ext.P7 order, though by mistake, in the place to set out the name of the presiding officer, the name of Sri. Jose J Matheikal, the counsel for the appellant is shown. From Ext.P7, it is obvious that the appellant was represented by counsel at the time of hearing on 21.06.2011. Ext.P7 also does not refer to Ext.P6 argument note of the appellant.

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A Statement has been filed on behalf of the 2^nd respondent, wherein, it is stated that the matter was heard on 21.06.2011 by the 1^st respondent and orders were reserved and the presiding officer may have put the date as 12.07.2011, the date on which the order was pronounced. However, there is no explanation as to passing an order under Rule 15(1) of the Tribunal (Procedure) Rules, 1997 when the counsel for the appellant was present when the appeal was called for hearing.

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Heard Sri. Jose J Matheikal, the counsel for the petitioner and Sri. S. Prasanth, the standing counsel for the respondents.

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Sri. Jose J Matheikal invited my attention to Ext. P7 order

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and Ext. P6 argument note and submits that the appeal was argued before the Tribunal on 21.06.2011 and orders were reserved and the order passed invoking Rule 15(1) of the Tribunal (Procedure) Rules, 1997 is absolutely illegal and without application of mind.

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From a reading of Ext.P7, I find that it is a cryptic order passed without application of mind. Though the counsel for the appellant was present and argued the appeal when the appeal was called for hearing on 21.06.2011, Ext.P7 was passed invoking Rule 15(1) of the Tribunal (Procedure) Rules, 1997 as if the appellant was absent. There is also no reference to Ext.P6 argument note submitted at the time of hearing. Ext.P7 order is vitiated by nonapplication of mind. Accordingly, Ext.P7 order is set aside. The 1^st respondent shall hear Ext.P3 appeal afresh after notice to the petitioner. Fresh orders as above shall be passed within a period of three months from the date of receipt of a certified copy of the judgment. Till such time, the interim order dated 06.09.2011 passed in this writ petition will continue.

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The writ petition is disposed of. There will be no order as to

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costs.

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Sd/-

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MURALI PURUSHOTHAMAN JUDGE

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