Disposed

Twenty Four Assures Services Pvt. Ltd. v. Regional Provident Fund Commissioner

Kerala HC15 Feb 2024WP(C)/17647/2020

Case brief

AI extract

What is this about?

Employer challenged an EPF recovery demand for allegedly uncovered trainees, claiming it never received the Section 7A determination order. The High Court accepted the non-service contention, permitted the petitioner to seek review under Section 7B, and quashed the ongoing recovery proceedings pending that review.

What did the court decide?

Permission to file a Section 7B review application within one month; recovery proceedings quashed pending its outcome.

Twenty Four Assures Services Pvt. 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 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
WP(C) NO. 17647 OF 2020

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PETITIONER:

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TWENTY FOUR ASSURES SERVICES PVT. LTD.,
132, GIRINAGAR CANAL ROAD, KOCHI, PIN-682 020, REP. BY
ITS MANAGING DIRECTOR VINOO KURIAN DEVASSIA, AGED 47
YEARS, S/O.P.K.DEVASSIA, RESIDING AT FLAT NO.16E,
CASTLE TOWER, TRINITY APARTMENT, EDAPPALLY, PIN-682
024.
BY ADVS.
PEEYUS A.KOTTAM
HRITHWIK D. NAMBOOTHIRI
ARJUN S BENEDICT

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RESPONDENT:

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REGIONAL PROVIDENT FUND COMMISSIONER,
EMPLOYEES PROVIDENT FUND ORGANISATION,
REGIONAL OFFICE, KALOOR, KOCHI-682 017.

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BY ADV S.PRASANTH, SC, EPFO

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 17647 OF 2020

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JUDGMENT

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The petitioner has approached this Court challenging Ext.P4 demand notice calling upon the petitioner to remit a sum of Rs.7,35,642/-, which is stated to be the Provident Fund dues on account of non enrollment of certain employees in the Provident Fund Scheme.

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The learned counsel appearing for the petitioner would submit that the demand in Ext.P4 is not sustainable in law. It is submitted that all the employees of the petitioner were duly covered under the Employees' Provident Funds Scheme and contributions in that regard were also paid by the petitioner. It is submitted that the demand now raised is on the basis that certain trainees, who had been provided training for specified periods as a part of their studies, should also have been covered under the EPF Scheme. It is submitted that this issue is covered in favour of the petitioner by the judgment of the Supreme Court in Regional Provident Fund Commissioner, Mangalore v. Central Arecanut and Cocoa Marketing and processing Co-Operative Limited, Mangalore [2006 KHC 104], where it was held that apprentices are excluded from the definition of ‘employee’ for the purposes of the EPF Act. It is submitted that the same issue was considered by this Court in Sivagiri Sree

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WP(C) NO. 17647 OF 2020

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Narayana Medical Mission Hospital v. Regional Provident Fund

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Commissioner and Another [2018 KHC 542].

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The learned Standing Counsel appearing for the Provident Fund Organization would vehemently oppose the grant of any relief to the petitioner. It is submitted that the petitioner has no cause of action to approach this Court by filing a writ petition under Article 226 of the Constitution of India. It is submitted that if the petitioner is in any manner aggrieved by the determination of the authorities under Section 7A of the EPF Act, it is for the petitioner to approach statutory tribunal by filing an appeal. It is submitted that the petitioner has not even challenged the order under Section 7A of the EPF Act and therefore, the petitioner cannot be granted any relief in this writ petition. It is also submitted that the contention taken that the demands were raised in violation of principles of natural justice cannot be accepted as the petitioner was admittedly heard before the proceedings under Section 7A of the EPF Act were finalized.

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The learned counsel appearing for the petitioner, in reply, would submit that even the order under Section 7A of the EPF Act has not been served on the petitioner. It is submitted that the office of the petitioner was locked and was not functioning for

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WP(C) NO. 17647 OF 2020

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several months during the Covid -19 pandemic and apart from the demand notice (Ext.P4), which itself was issued on 25.06.2020 and in the middle of the Covid – 19 pandemic, no other proceeding was served or has been received by the petitioner.

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The learned counsel appearing for the Provident Fund Department would submit that the contention now taken in Court that the copy of the proceedings under Section 7A of the EPF Act was not served on the petitioner is not bona fide as no such contention has been taken in the writ petition.

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Having heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the Provident Fund Department, I am of the view that in the facts and circumstances of the case, an opportunity can be given to the petitioner to file an application for review of any order issued against the petitioner under Section 7A of the EPF Act, on the basis of which Ext.P4 demand has been issued to the petitioner. I am inclined to accept the contention of the petitioner that no order under Section 7A of the EPF Act has been received by him taking note of the fact that immediately after receipt of Ex.P4 demand notice, the petitioner had submitted a reply, which was duly acknowledged by the Provident Fund Office, stating that the office of the petitioner had remain

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WP(C) NO. 17647 OF 2020

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closed for several months owing to the Covid – 19 pandemic. This, in my opinion, lends credence to the contention of the learned counsel for the petitioner that the petitioner has not been served with a copy of the proceedings under Section 7A of the EPF Act. Since the order under Section 7A of the EPF Act has now been produced along with the statement filed by the Standing Counsel for the respondent, the petitioner will be permitted to file an application under Section 7B of the EPF Act, within a period of one month from the date of receipt of a certified copy of this judgment. If such application is filed by the petitioner, the application under Section 7B of the EPF Act shall be decided by the competent authority, after affording an opportunity of hearing to the petitioner. Since the petitioner is being given an opportunity to file an application for review under Section 7B of the EPF Act, the recovery proceedings initiated against the petitioner will stand quashed, making it clear that further proceedings for recovery can be initiated based on the orders to be passed on the application for review to be filed by the petitioner under Section 7B of the EPF Act. I make it clear that I have not expressed any opinion on the merits of the matter.

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Sd/GOPINATH P. JUDGE

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WP(C) NO. 17647 OF 2020

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APPENDIX OF WP(C) 17647/2020

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`PETITIONER EXHI`	`BITS`
`EXHIBIT P1`	`TRUE COPY OF` `RETURN (ECR)` `2012 AND RETU`	`THE` `FOR` `RN M`	`ELECTRONIC CHALLAN CUM` `THE WAGE MONTH OF APRIL` `ONTH OF 5/2012.`
`EXHIBIT P2`	`TRUE COPY OF` `RETURN (ECR)` `7/2012 AND RE` `8/2012 DATED`	`THE` `FOR` `TURN` `16.0`	`ELECTRONIC CHALLAN CUM` `THE WAGE MONTH OF` `FOR THE MONTH OF` `4.2013.`
`EXHIBIT P3`	`TRUE COPY OF` `PAYMENT OF PR` `OF JULY, 2014`	`THE` `OVID` `.`	`CHALLAN SHOWING SHOWING` `ENT FUND FOR THE MONTH`
`EXHIBIT P4`	`THE TRUE COPY` `25.06.2020 IS` `REGIONAL PROV` `RECOVERY OFFI`	`OF` `SUED` `IDEN` `CER`	`THE DEMAND NOTICE DATED` `BY THE RESPONDENT` `T FUND COMMISSIONER AND` `TO THE PETITIONER.`
`EXHIBIT P5`	`TRUE COPY OF` `2006 KHC 104` `COMMISSIONER,` `ARECANUT AND` `PROCESSING CO` `MANGALORE).`	`THE` `(REG` `MAN` `COCO` `-OPE`	`JUDGMENT REPORTED IN` `IONAL PROVIDENT FUND` `GALORE V.CENTRAL` `A MARKETING AND` `RATIVE LTD.,`
`EXHIBIT P6`	`TRUE COPY OF` `2018 KHC 542` `MEDICAL MISSI` `PROVIDENT FUN`	`THE` `(SIV` `ON H` `D CO`	`JUDGMENT REPORTED IN` `AGIRI SREE NARAYANA` `OSPITAL V.REGIONAL` `MMISSIONER AND ANR.)`
`RESPONDENT EXHI`	`BITS`
`ANNEXURE – 1`	`TRUE COPY OF` `PASSED UNDER`	`THE` `SECT`	`ORDER DATED 05.09.2019` `ION 7A.`
`ANNEXURE - 2`	`TRUE COPY OF` `HEARING HELD`	`THE` `ON 2`	`PROCEEDINGS OF THE` `5.07.2019.`

Twenty Four Assures Services Pvt. Ltd. v. Regional Provident Fund Commissioner

Case brief

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Twenty Four Assures Services Pvt. Ltd. v. Regional Provident Fund Commissioner

Case brief

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