Dismissed

The Central Board of Trustees v. M/S.K R Gouri Amma College of Engineering for Women

Kerala HC8 Dec 2022WP(C)/8602/2016

Case brief

AI extract

What is this about?

The High Court upheld an order of the Assistant Provident Fund Commissioner imposing a penalty of Rs. 7,51,882/ on a college for defaulting in PF contributions, dismissing a writ petition that challenged the Appellate Tribunal's earlier remand of the matter for lack of opportunity to the employer.

What did the court decide?

Writ petition dismissed and the order of the assessing authority upheld.

The Central Board of Trustees Vs M/S.K R… — Pension and Retirement Benefits | Kerala HC (2022)

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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 AMIT RAWAL

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THURSDAY, THE 8^TH DAY OF DECEMBER 2022 / 17TH AGRAHAYANA, 1944

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WP(C) NO. 8602 OF 2016

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PETITIONER:

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THE CENTRAL BOARD OF TRUSTEES EMPLOYEES' PROVIDENT FUND ORGANIZATION, REPRESENTED BY THE ASSISTANT PROVIDENT FUND COMMISSIONER (LEGAL), EMPLOYEES' PROVIDENT FUND ORGANIZATION SUB REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, KALOOR, KOCHI-682017.

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BY ADVS. DR.S.GOPAKUMARAN NAIR (SR.) S.PRASANTH

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RESPONDENT:

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M/S.K R GOURI AMMA COLLEGE OF ENGINEERING FOR WOMEN VALAMANGALAM SOUTH P.O., ALAPPUZHA-688532, KERALA STATE REPRESENTED BY ITS PRESIDENT.

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BY ADVS. SRI.K.ANAND (SR.) SRI.JOSEPH SEBASTIAN PARACKAL SMT.LATHA ANAND SRI.M.N.RADHAKRISHNA MENON

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) No.8602/2016

JUDGMENT

Ext.P5 order dated 8.03.2014 of the Appellate Tribunal remanding the matter back to the assessing officer is under challenge on behalf of the Assistant Provident Fund Commissioner.

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The respondent college was allotted code number, being covered under the provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (Hereinafter referred to as 'the Act'. The proceedings under Section 7A of the Act was initiated on the allegation of default of payment of various dues under the Act and the scheme. The enforcement officer visited the office and found that there was default in respect of the contribution for the period August 2009 to June 2012. Notice was issued by the petitioner organisation on 04.09.2012 fixing the enquiry on 19.09.2012. The employer is stated to have appeared on 19.09.2012 with the authorisation and requested for adjournment which was considered and the matter was adjourned to 8.10.2012 and again adjourned to 05.11.2012. On that day nobody appeared and one administrator thereafter appeared on 21.11.2012. The assessing officer while noticing that the management did not place on record any material, assessed the

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WP(C) No.8602/2016

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arrears to the tune of Rs.7,51,882/-. The aforementioned order was assailed before the Appellate Tribunal and finding that the respondent was not given effective opportunity, the matter was remanded back.

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Learned counsel for the petitioner Provident Fund Commissioner submitted that the order of the assessing authority reveals that ample opportunity was availed, but establishment failed to place on record and therefore, there was no occasion for the appellate authority to remand the matter.

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On the other hand, learned counsel for the respondent supports the impugned order and submits that even the report of the Provident Fund Commissioner was not supplied and therefore, no opportunity was given to counter or belie suc h report and urged this Court for dismissal of the Writ Petition.

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I have heard the counsel for the parties and appraised the paper book.

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The impugned order Ext.P5 dated 08.03.2014 reads as

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under :

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“The present appeal is filed to challenge the order dated 14.12.2012 passed by the APFC, Kochi under Section 7A of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 respectively determining the PF dues on the basis of the dues reported by the Enforcement Officer.

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2. In this case the Assistant Provident Fund Commissioner, Kochi (hereinafter to be referred to as the Commissioner) issued a notice to the appellant as to the

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WP(C) No.8602/2016

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initiation of enquiry under Section 7A of the Act on determination of PF dues in respect of temporary workers. The appellant was also requested for production of documents before him so that he would determine the PF dues in respect of all the eligible employees under the Act.

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3. The appellant did not produce all documents before the Commissioner. The Commissioner ultimately called for a report from the Provident Fund Inspector. The Inspector visited the appellant establishment looked into some registers and submitted a report that the appellant's establishment had defaulted in remitting the PF dues in respect of temporary employees. On the basis of this report, the Commissioner determined the amount due from the appellant employer. The respondent authority has, however, blindly accepted the report submitted by the Enforcement Officer without any examination.

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4. Section 7A of the Act enjoins that it is the Commissioner who would have to make the enquiry. The determination of outstanding PF dues is to be made by him and not by the Inspector. Therefore, the impugned order is not sustainable on this ground. The impugned order is accordingly set aside. The appeal is allowed. Copy of the order be sent to both the parties. File be consigned to the record.”

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6. The tenor and mode of the order extracted above

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reveals that the order is perfectly legal and justified and do not call for interference. Effective opportunities were given and despite that, no concrete material was placed to counter the allegations. For the reasons aforementioned, I do not find any arbitrariness or unjusticiability in the impugned order. The impugned order is upheld.

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Writ Petition is accordingly dismissed.

Sd/-

AMIT RAWAL JUDGE

csl

WP(C) No.8602/2016

APPENDIX OF WP(C) 8602/2016

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PETITIONER'S EXHIBITS

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EXHIBIT P1 TRUE COPY OF PROFORMA 'A' STATEMENT. EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS OF ENQUIRY DATED 21.11.12. EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS DATED 14.12.12 OF THE ASST. PROVIDENT FUND COMMISSIONER. EXHIBIT P4 TRUE COPY OF TH EJUDGMENT BY THE HON'BLE HIGH COURT OF KERALA DATED 2.4.2013. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 8.3.2014 IN ATA 168(7)2013 EPF TRIBUNAL.

The Central Board of Trustees v. M/S.K R Gouri Amma College of Engineering for Women

Case brief

What is this about?

What did the court decide?

The Central Board of Trustees v. M/S.K R Gouri Amma College of Engineering for Women

Case brief

What is this about?

What did the court decide?

What the court decided

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