Dismissed

Employees Provident Fund Organistation v. Kerala Co-Operative Milk Marketing Federation Ltd. (Milma)

Kerala HC11 Jun 2024WA/78/2018

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed this writ appeal filed by the EPF Organization. The Court held that the establishment was never confronted with the Enforcement Officer's report regarding the number of employees as required under Section 7A of the EPF Act. Consequently, the lower court's quashing order was maintained.

What did the court decide?

The Writ Appeal was dismissed as it had no merit.

Employees Provident Fund Organistation Vs Kerala Co-Operative Milk… — Insurance | Kerala HC (2024)

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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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THE HONOURABLE MR. JUSTICE EASWARAN S.

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TUESDAY, THE 11TH DAY OF JUNE 2024 / 21ST JYAISHTA, 1946

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WA NO. 78 OF 2018

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AGAINST THE JUDGMENT DATED 01.08.2017 IN WPC NO.10837 OF 2011
OF HIGH COURT OF KERALA

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APPELLANT/1ST RESPONDENT :

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EMPLOYEES PROVIDENT FUND ORGANIZATION
REPRESENTED BY ASSISTANT PROVIDENT FUND COMMISSIONER,
(LEGAL) SUB REGIONAL OFFICE, 36/685A,'BHAVISHYA NIDHI
BHAVAN, P.B.NO.1895, KALOOR, KOCHI.17

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RESPONDENT(S)/PETITIONER(S) AND RESPONDENTS 2 TO 9 :

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1 KERALA CO-OPERATIVE MILK MARKETING FEDERATION LTD. (MILMA) MILMA BHAVAN, PATTOM PALACE PO, THIRUVANANTHAPURAM.695004,REPRESENTED BY ITS SENIOR MANAGER, CATTLE FEED PLANT, PATTANAKKAD, ALAPPUZHA.688531

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2 THE CONVENOR CHERTHALA TALUK LOADING & CONSTRUCTION WORKERS UNION (CITU), CHERTHALA, ALAPPUZHA, KERALA-688524

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3 THE CONVENOR CHERTHALA TALUK & CONSTRUCTION WORKERS UNION (AITUC), CHERTHALA, ALAPPUZHA KERALA, PIN.688524

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4 THE CONVENOR ALAPPUZHA DISTRICT HEAD LOAD & GENERAL WORKERS UNION(INTUC), THURAVOOR, ALAPPUZHA, KERALA, PIN.683586

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W.A. No.78 of 2024

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5 THE CONVENOR KERALA CONSTRUCTION LABOUR UNION (UTUC)ALAPPUZHA, KERALA, PIN.688001

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6 THE CONVENOR CHERTHALA TALUK HEAD LOAD & GENERAL MAZDOOR SANGH,(BMS), CHERTHALA, ALAPPUZHA, KERALA.688524

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7 THE CONVENOR ALAPPUZHA JILLA SOCIALIST MILMA WORKERS UNION,(SRTUC)PATTANAKKAD, ALAPPUZHA, KERALA.688531.

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** 8 ** DELETED

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EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL
CORE 2,4TH FLOOR, SCOPE MINAR, LAXMI NAGAR DISTRICT
CENTRE DELHI, REP. BY ITS REGISTRAR. PIN.110092.

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[R8 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED
15/03/2018 IN IA.358/2018 IN WA.78/2018].

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BY ADVS. SRI.E.K.MADHAVAN
SMT.P.VIJAYAMMA

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11.06.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. No.78 of 2024

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AMIT RAWAL & EASWARAN S. , JJ.

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W.A. No.78 of 2024

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Dated this the 11^th day of June 2024

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JUDGMENT

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AMIT RAWAL, J.

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The short question involved in the present Writ Appeal is whether the Employees Provident Fund Organization can raise a demand without confronting the establishment with the report of the Enforcement Officer which is a pre-requisite as per the provisions of the Employees Provident Fund Act (‘EPF Act’, for short). For resolving the dispute, realising that the establishment had not been contributing Provident Fund in respect of the exact number of employees, as the Act applies in case the establishment has more than twenty employees, the proceedings are initiated under Section 7A on the basis of the report of the Enforcement Officer who is duty bound to visit the establishment to verify the number of employees by looking at the register maintained by the establishment. The procedure under Section 7A is self-contained and provides an opportunity to be given to the establishment for attendance of the witnesses, documents and other records. This

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Court had already in one of the judgments commented upon the working of the organization in not confronting with the report of the Enforcement Officer to the establishment.

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In the present case, this is the 2^nd round of litigation whereas, in the first round of litigation, competent authority under Section 7A did not afford the opportunity of hearing to the establishment. The matter was remitted by the Tribunal. Opportunity of hearing was given and it was disclosed that the number of employees were 114 in view of the settlement between the head load workers as the details were given mentioning the exact number of employees. The order of the Commissioner also do not reflect any determination on the report of the enforcement officer vis a vis the register of the employees, maintained by the establishment, much less confronted to the representative of the management/ establishment and decision is taken totally on a different tangent. Instead of determining the quantum, the assessment authority, relegated the matter to the competent authority for determining the liability as per the exact number of employees working in the establishment.

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The matter was taken before the Tribunal. Before the Tribunal, there was a settlement between the Headload Workers and the establishment and the number of employees alleged to be on the rolls were reduced to 114 from 162. The Tribunal did not accept the same and upheld the order of the competent authority. Establishment approached this Court before the Single Bench and the learned Single Bench accepted the settlement and allowed the writ petition. It is in that background that the present Writ Appeal has come up before us on the premise that the settlement arrived at with the Headload workers under the provisions of Section 18 of the Industrial Disputes Act would not rescue the establishment for nonpayment of the contribution of the exact number of employees.

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Sri. S.Prasanth, the learned counsel appearing on behalf of the appellant submitted that the settlement is purely between the establishment and the employees. The role of the Employees Provident Fund Organization is to apply this Act strictly as per the definition of 'Contribution' defined under Section 2(c) of the EPF Act.

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On the other hand, Sri. Krishna Menon, the learned counsel appearing on behalf of the respondents submitted that the learned Single Bench has already relegated the matter to the

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authorities to quantify the liability with respect to the employees referred to in the settlement. Therefore the order was innocuous and would not be considered as arbitrary for indulgence or involves any question of law for warranting any interference in an intra court proceedings.

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We have heard the learned counsel for the parties and perused the records.

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Section 7A of the EPF Act reads as under.

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7A. Determination of moneys due from employers.—

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(1) The Central Provident Fund Commissioner, any Additional Central Provident Fund Commissioner, any Deputy Provident Fund Commissioner, any Regional Provident Fund Commissioner, or any Assistant Provident Fund Commissioner may, by order,—

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(a) in a case where a dispute arises regarding the applicability of this Act to an establishment, decide such dispute; and

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(b) determine the amount due from any employer under any provision of this Act, the Scheme or the Pension Scheme or the Insurance Scheme, as the case may be,

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and for any of the aforesaid purposes may conduct such inquiry as he may deem necessary.

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(2) The officer conducting the inquiry under sub-section (1) shall, for the purposes of such inquiry, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 for trying a suit in respect of the following matters, namely:—

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(a) enforcing the attendance of any person or examining him on oath;

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(b) requiring the discovery and production of documents;

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(d) issuing commissions for the examination of witnesses,

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and any such inquiry shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code (45 of 1860).

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(3) No order shall be made under sub-section (1), unless the employer concerned is given a reasonable opportunity of representing his case.

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(3A) Where the employer, employee or any other person required to attend the inquiry under sub-section (1) fails to attend such inquiry without assigning any valid reason or fails to produce any document or to file any report or return when called upon to do so, the officer conducting the inquiry may decide the applicability of the Act or determine the amount due from any employer, as the case may be, on the basis of the evidence adduced during such inquiry and other documents available on record.

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(4) Where an order under sub-section (1) is passed against an employer ex parte, he may, within three months from the date of communication of such order, apply to the officer for setting aside such order and if he satisfies the officer that the show-cause notice was not duly served or that he was prevented by any sufficient cause from appearing when the inquiry was held, the officer shall make an order setting aside his earlier order and shall appoint a date for proceeding with the inquiry:

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Provided that no such order shall be set aside merely on the ground that there has been an irregularity in the service of the show-cause notice if the officer is satisfied that the employer had notice of the date of hearing and had sufficient time to appear before the officer.

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Explanation.— Where an appeal has been preferred under this Act against an order passed ex parte and such appeal has been disposed of otherwise than on the ground that the appellant has withdrawn the appeal, no application shall lie under this sub-section for setting aside the ex parte order.

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(5) No order passed under this section shall be set aside on any application under sub-section (4) unless notice thereof has been served on the opposite party.

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On analysis of the judgment of the Single Bench and as

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well as the order of the learned Tribunal and assessing authority, we

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find that the establishment has never been confronted with the

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report of the Enforcement officer, which is a basic document to form

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an opinion for the purpose of quantification in respect of the number of employees working in the establishment. There had been a spate of litigation with many establishments . None of the authorities have dealt with the question with regard to the number of employees whether 162 or 114 but have only laid focus on the settlement. Even the quantification in respect of the specific period is also conspicuously wanting. We are of the view that the appellant had summoned the establishment on a total figment of imagination much less surmises and conjectures. No harm and prejudice would have been caused to reassess in view of the judgment of the learned Single Bench. We do not thus agree with the contentions raised by the learned counsel for the appellant/petitioner and find no merit in the appeal.

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Appeal is accordingly dismissed.

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Sd/-

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AMIT RAWAL, JUDGE

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Sd/-

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EASWARAN S., JUDGE

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