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Apple a Day Properties (P) Ltd. v. Asst.Provident Fund Commissioner

Kerala HC1 Feb 2024WP(C)/12364/2013

Case brief

AI extract

What is this about?

In a writ petition, the High Court permitted an administrator appointed by it for a company to file a review petition under Section 7B of the EPF Act, 1952, against a liability order. The court stayed further proceedings on the original order pending the outcome of the review application filed within three months.

What did the court decide?

Permission granted to the appointed administrator to file an application for review under Section 7B of the EPF Act, 1952 within three months; further proceedings on the impugned order stayed in the i

Apple a Day Properties (P) Ltd. Vs… — Pension and Retirement Benefits | 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 GOPINATH P.

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THURSDAY, THE 1ST DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945
WP(C) NO. 12364 OF 2013

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PETITIONERS:

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1 APPLE A DAY PROPERTIES (P) LTD, APPLE TOWERS, N.H.BYE PASS, PALARIVATTOM, EDAPPALLY, KOCHI-24, REPRESENTED BY SAJU KADAVILAN.

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2SAJU KADAVILAN,
MANAGING DIRECTOR, APPLE A DAY PROPERTIES (P) LTD.,
APPLE TOWERS, N.H.BYE PASS, PALARIVATTOM,
EDAPPALLY, KOCHI-24.

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BY ADV SRI.A.KUMAR

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RESPONDENTS:

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1ASST.PROVIDENT FUND COMMISSIONER,
EMPLOYEES PROVIDENT FUND ORGANISATION,
SUB REGIONAL OFFICE, 36/685A, BHAVISHYANIDHI BHAVAN,
P.B.NO.1895, KALOOR, COCHIN-682 017.
2STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
BY ADVS.
S.GOPAKUMARAN NAIR (SR.)
SRI.A.RAJASIMHAN, SC, EPF ORGANISATION

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SRI.VINOD MADHAVAN, ADMINISTRATOR
SRI. S PRASANTH (SC EPFO)
SRI.VENUGOPAL V,GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 12364 OF 2013

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JUDGMENT

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The 1^st petitioner is a Company incorporated under the

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Companies Act, 1956 and the 2^nd petitioner is its Managing Director. Owing to certain proceedings initiated against the petitioners by various persons, several records were seized from the offices of the 1^st petitioner and were produced before the Judicial First Class Magistrate Court – I, Ernakulam in C.C.No.4853/2011. In the meanwhile, certain proceedings were initiated against the 1^st petitioner Company under the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as ‘the EPF Act 1952’). According to the petitioners, they have been now been mulcted with a huge liability through Ext.P11 proceedings under Section 7A of the EPF Act 1952, principally on account of the fact that the petitioners could not produce the necessary documents before the authorities at the time of enquiry and on account of the fact that many of these documents have been seized and have been produced before the Magistrate Court in the proceedings referred to above. This Court through order dated 17.05.2013 stayed all further

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WP(C) NO. 12364 OF 2013

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proceedings pursuant to Ext.P11 order and that interim order has been extended from time to time and continues till date.

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It appears that proceedings were initiated before this Court under the provisions of the Companies Act, 1956 for winding up of the 1^st petitioner Company. The Company Court has considered certain schemes put forward for settlement of the liabilities of the 1^st respondent Company. Sri.Vinod Madhavan, Advocate of this Court has been appointed by the Company Court as the Administrator for the purposes of ensuring the implementation of the schemes for revival of the Company. Adv.Vinod Madhavan, who is present in Court today, would submit that the scheme proposed by the Company has been approved by the Company Court and the scheme is under implementation.

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The learned counsel appearing for the Provident Fund Department would submit that Ext.P11 order is an appealable order. It is submitted that the petitioners have, without resorting to the alternate remedy, rushed to this Court under Article 226 of the Constitution of India. It is submitted that the writ petition is therefore not maintainable in law. It is also submitted that there is no legal infirmity in Ext.P11

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WP(C) NO. 12364 OF 2013

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warranting the exercise of jurisdiction of this Court under Article 226 of the Constitution of India notwithstanding the availability of an alternate remedy.

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It is seen from the record of this case that on 20.06.2013, this Court passed the following order on I.A.No.8195 of 2013:-

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“The above application is filed for a direction to the Judicial First Class Magistrate Court-I, Ernakulam to make available the hard disk and laptop seized from the premises of the petitioner to enable him to derive certain data from the same, which according to him, is relevant for a proper adjudication of the provident fund issues which had resulted in an assessment order under Section 7A of the Employees Provident Fund Miscellaneous Provisions Act.

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The documents now sought for by the petitioner are the cash book, ledger, salary/wage register and final accounts for the periods 20092010, 2010-2011, 2011-2012, 2012-2013. In fact, a request was made by the petitioner on an earlier occasion and the Magistrate had passed Ext.P7 order dated 17/12/2011 stating that the hard disk had been

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WP(C) NO. 12364 OF 2013

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sent to the expert for decoding the contents of the hard disk and therefore handing over the records and hard disk will be detrimental to the investigation of the case. It is further found that the petitioners could take copy of the data in the hard disk with permission of court even without running the software installed in the hard disk.

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According to the petitioner, in the absence of any such records, the petitioner will not be in a position to file an appeal before the appellate authority and the very reason for passing an order under Section 7A of the EPF Act is on account of failure to produce the records.

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Having regard to the aforesaid factual situation, the following order is passed.

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i)The petitioner shall approach the JFMC-I, Ernakulam in C.C.No.4583/2011 to enable the petitioner to take print outs/copies of the document aforesaid in the presence of an Advocate Commissioner, a police officer not below the rank of a Sub Inspector of Police and a representative of the Provident Fund department.

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ii) On receipt of such an application, the learned Magistrate shall take into consideration such requirement and direct print outs to be taken in the

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WP(C) NO. 12364 OF 2013

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presence of such persons on terms and conditions as

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may be fixed, by the learned Magistrate.

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Post the writ petition after one month.”

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Though the petitioners filed necessary application as directed by this Court in C.C.No.4853/2011, the petitioners have not been able to obtain any records from the Magistrate Court.

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Taking into consideration of the above, this

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Court called for a report from the Judicial First Class Magistrate Court – I, Ernakulam. The Judicial First Class Magistrate Court – I, Ernakulam has filed a report stating that C.C.No.4853/2011, which was originally on the file of the Judicial First Class Magistrate Court – I, Ernakulam was transferred to the Judicial First Class Magistrate Court – IX, Ernakulam, on the orders of the Chief Judicial Magistrate, where it has been re-filed as C.C.No.194/2022. It is seen from the report of the Judicial First Class Magistrate Court – I, Ernakulam that no application for documents is seen filed in C.C.No.194/2022 on the file of the Judicial First Class Magistrate Court – IX, Ernakulam.

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Ext.P11 is an order under Section 7A of the EPF

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WP(C) NO. 12364 OF 2013

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Act 1952. Section 7B of the EPF Act 1952, reads as follows:-

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“7B. Review of orders passed under section 7A.— (1) Any person aggrieved by an order made under sub-section (1) of section 7-A, but from which no appeal has been preferred under this Act, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the order was made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of such order may apply for a review of that order to the officer who passed the order:

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Provided that such officer may also on his own motion review his order if he is satisfied that it is necessary so to do on any such ground.

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(2) Every application for review under sub-section (1) shall be filed in such form and manner and within such time as may be specified in the Scheme.

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(3) Where it appears to the officer receiving an application for review that there is no sufficient ground for a review, he shall reject the application.

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(4) Where the officer is of opinion that the application for review should be granted, he shall grant the same: Provided that,—

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(a) no such application shall be granted without previous notice to all the parties before him to enable them to appear and be heard in support of the order in respect of which a review is applied for, and

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WP(C) NO. 12364 OF 2013

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(b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge or could not be produced by him when the order was made, without proof of such allegation.

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(5) No appeal shall lie against the order of the officer rejecting an application for review, but an appeal under this Act shall lie against an order passed under review as if the order passed under review were the original order passed by him under section 7A.”

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In the facts and circumstances noticed above, I am of

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the view that this is a case where the Administrator appointed

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by this Court can be permitted to make an application for review of Ext.P11 order under Section 7B of the EPF Act, 1952 as it is a case of the petitioners that they were unable to produce the necessary records before the EPF authorities only on account of the fact that they were seized and were not in the custody of the petitioners. While the question as to whether any records that may be produced by the petitioners / Administrator constitutes the grounds for review of Ext.P11 order is a matter to be decided by the EPF authorities, I deem it appropriate to permit the Administrator appointed by this Court as above to make an application under Section 7B of the EPF Act 1952 before the Authority which issued Ext.P11

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WP(C) NO. 12364 OF 2013

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proceedings, within a period of three months from the date of receipt of a certified copy of this judgment. I am inclined to give three months time to the Administrator to make an application under Section 7B of the EPF Act, 1952 as it may be necessary for the Administrator to collect records from the Magistrate Court, if such records are available and have been produced before the Magistrate Court. There will be a further direction to the Judicial First Class Magistrate Court – IX, Ernakulam to consider any application that may be filed by the Administrator in terms of the directions issued in I.A.No.8195 of 2013 in the above writ petition, without undue delay and at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. On receipt of such documents and if the same are relevant and constitute a ground for review under Section 7B of the EPF Act 1952, the Administrator may file such application within the time specified above. It is open to the Administrator to seek the assistance of the petitioners or any officer of the 1^st petitioner Company for the purposes of preparing and filing the necessary application. On receipt of an application under Section 7B of the EPF Act, 1952 as above, the 1^st respondent

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shall consider such application in accordance with the law, after affording an opportunity of hearing to the Administrator or a person to be authorized by the Administrator. Till such time as orders are passed on the application to be filed as directed above, further proceedings on Ext.P11 shall remain stayed. If no application is filed as directed above, within a period of three months, it will be open to the 1^st respondent to enforce Ext.P11 order, in accordance with the law.

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Sd/GOPINATH P. JUDGE

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WP(C) NO. 12364 OF 2013

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APPENDIX OF WP(C) 12364/2013

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PETITIONER EXHIBITS
EXHIBIT P1: COPY OF THE ORDER IN CP NO.16/2011
AND CONNECTED CASES, DATED
15.11.2011.
EXHIBIT P2: COPY OF THE ORDER IN CP NO.16/2011
AND CONNECTED CASES DATED 2.1.2012
EXHIBIT P3: COPY OF THE ORDER IN CP NO.16/2011
AND CONNECTED CASES, DATED
30.3.2012.
EXHIBIT P4: COPY OF THE ORDER IN Co. APPEAL
NO.8/2012 IN CP/22/11, DATED
5.6.2012.
EXHIBIT P5: COPY OF THE ORDER IN
CO.APPL.NO.362/2012 IN CP
NO.22/2011, DATED 17.8.2012.
EXHIBIT P6: COPY OF THE ORDER IN
CO.APPL.NO.818/2012 IN CP
NO.22/2011, DATED 4.12.2012.
EXHIBIT P7: COPY OF THE ORDER OF THE JUDICIAL
FIRST CLASS MAGISTRATE COURT,
ERNAKULAM, IN CMP NO.2848/2011 IN
C.C.NO.4853/2011 DATED 17.12.2011.
EXHIBIT P8: COPY OF THE NOTICE ISSUED BY THE 1ST
RESPONDENT, DATED 31.5.2012.
EXHIBIT P9: COPY OF THE REPLY GIVEN BY THE
PETITIONER, DATED 9.7.2012.
EXHIBIT P10: COPY OF THE STATEMENT PRODUCED BY
THE PETITIONER DATED NIL.
EXHIBIT P11: COPY OF THE ORDER PASSED BY THE 1ST
RESPONDENT, DATED 9.4.2013.
EXHIBIT P12: COPY OF THE PETITION FOR SANCTION OF
ARRANGEMENT/COMPROMISE DATED
15.02.2013

Apple a Day Properties (P) Ltd. v. Asst.Provident Fund Commissioner

Case brief

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Apple a Day Properties (P) Ltd. v. Asst.Provident Fund Commissioner

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