Kerala High Court
Express Publications (Madurai) ... vs The Employees Provident Fund ... on 11 August, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
MONDAY, THE 21ST DAY OF JANUARY 2013/1ST MAGHA 1934
WP(C).No. 17343 of 2012 (P)
----------------------------------------
PETITIONER:
-------------------
EXPRESS PUBLICATIONS (MADURAI) LIMITED,
EXPRESS HOUSE,KALOOR KOCHI-17,
REPRESENTED BY ITS ASSISTANT GENERAL MANAGER-
KERALA MR.P.SURESHKUMAR.
BY SRI.E.K.NANDAKUMAR, SENIOR ADVOCATE,
ADVS. SRI.M.GOPIKRISHNAN NAMBIAR,
SRI.P.GOPINATH,
SRI.P.BENNY THOMAS,
SRI.K.JOHN MATHAI.
RESPONDENTS:
-----------------------
1. THE EMPLOYEES PROVIDENT FUND ORGANISATION,
SUB REGIONAL OFFICE,BHAVISHYANIDHI BHAWAN,KALOOR,
KOCHI-682 017.
2. KERALA UNION OF WORKING JOURNALISTS,
KESARI BUILDINGS,PULIMOODU,THIRUVANANTHAPURAM-695 001,
REPRESENTED BY ITS GENERAL SECRETARY.
*ADDL. R.3. IMPLEADED:
3. THE NEW INDIAN EXPRESS EMPLOYEES ASSOCIATION (KERALA),
REGD. NO.07/06-2009, EXPRESS HOUSE,
KALOOR, KOCHI - 682 017,
REPRESENTED BY ITS GENERAL SECRETARY.
*IMPLEADED AS PER ORDER DT. 16/08/12 I N I.A. NO.10991/12.
R1 BY DR.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE,
ADVS.SRI.A.RAJASIMHAN,S,C,
R2 & ADDL. R3. BY ADVS. SRI.THAMPAN THOMAS,
SRI.B.V.JOY SANKER,
SRI.SHAFFIE THOMAS,
SRI.SANEESH KUNJUKUNJU.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 21-01-2013, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Prv.
W.P.(C). NO.17343/2012-P:
APPENDIX
PETITIONER'S EXHIBITS:
EXT-P1: TRUE COPY OF THE NOTICE DATED 11.8.2011 ISSUED UNDER
PARAGRAPH 26B OF THE SCHEME.
EXT-P2: TRUE COPY OF THE CONTRACT ENTERED INTO BY THE PETITIONER
WITH ONE OF THE JOURNALIST DATED 2.6.2012.
EXT-P3: TRUE COPY OF THE WRITTEN SUBMISSION DATED 16.3.2012 FILED BY
THE PETITIONER BEFORE THE FIRST RESPONDENT.
EXT-P4: TRUE COPY OF THE ORDER OF THE FIRST RESPONDENT
DATED 18.5.2012.
RESPONDENTS' EXHIBITS: NIL.
//TRUE COPY//
P.A. TO JUDGE
Prv.
V.CHITAMBARESH,J.
= = = = = = = = = = =
W.P.(C) No.17343 of 2012
= = = = = = = = = = = == = = = =
Dated this the 21st day of January, 2013
J U D G M E N T
Ext.P4 proceedings issued in terms of paragraph 26B of the Employees Provident Fund Scheme,1952 is under challenge in this writ petition. Para 26B is as follows.
" 26B. Resolution of doubts - If any question arises whether an employee is entitled or required to become or continue as a member, or as regards the date from which he is so entitled or required to become a member, the decision, thereon of the Regional Commissioner shall be final . Provided that no decision shall be given unless both the employer and the employee have been heard"
2. The petitioner management contends that the enquiry slated on 19-1-2011 was adjourned to 28-2-2011 due to administrative reasons as is discernible from Ext.P4 proceedings itself. Nevertheless the witness statement filed on behalf of the third respondent Union is seen relied on 19-1-2011 without giving an opportunity to the petitioner to controvert the same. The petitioner also contends that many of the documents relied on by the third respondent Union (detailed in Ground C of the writ petition) have not been perused or a copy served on it in the enquiry by the first respondent.
W.P.(C) No.17343 of 2012 2
3. The third respondent Union contends that the hearing was conducted on as many as eight days and that sufficient and more opportunity was granted to the petitioner to adduce evidence. It is also asserted that the finding of the first respondent that 'casual' or 'contract basis' employees of the petitioner are liable to be covered under the Employees Provident Funds and Miscellaneous Provisions Act, 1952 calls for no interference. It is submitted that the finding of the second respondent in Ext.P4 proceedings is in tune with the decision of the Supreme Court in Bhilwara Dugdh Utpadak Sahakari Ltd. vs. Vinod Kumar Sharma (AIR 2011 Supreme Court 3546).
4. The first respondent on the other hand contends that the proceeding in terms of paragraph 26B of the Employees Provident Fund Scheme, 1952 is only a prelude to an order passed after enquiry under Section 7A of the Employees Provident Funds and Miscellaneous Provisions Act. It is stated that the petitioner can adduce evidence in the enquiry under Section 7A of the Act and rake up the issue in an appeal to the Tribunal under Section 7 I of the Act. The first respondent points out that the petitioner is attempting to drag on the proceedings W.P.(C) No.17343 of 2012 3 despite opportunity granted as revealed from eight posting dates in the enquiry.
5. It is not clear from Ext.P4 proceedings as to whether the witness statement on behalf of the third respondent Union was relied on after adjourning the enquiry to 28-2-2011 on 19-1-2011 due to administrative reasons. The petitioner has also a contention that no opportunity was afforded to examine a few of the employees on its side in the enquiry conducted in terms of paragraph 26B. It is also not discernible from Ext.P4 proceedings as to whether the documents (detailed in Ground C of the writ petition) relied on by the third respondent have been made available to the petitioner in the enquiry conducted.
6. I therefore set aside Ext.P4 proceedings and remit the matter to the first respondent for the limited purpose of enabling the petitioner to examine three of the alleged employees as desired by them and also to get or peruse the copy of the documents detailed in paragraph C of the writ petition. The evidence already on record can be relied on in addition to evidence, if any, to be adduced by the parties in the enquiry to be continued. Needless to say that the petitioner is free to cross- examine the representative of the third respondent Union W.P.(C) No.17343 of 2012 4 if an application is filed for the purpose. The entire proceedings after remand shall be taken to a logical end by the first respondent within a period of two months from the date of receipt of a copy of this judgment.
7. The petitioner assures before me that no further adjournment will be sought before the first respondent in the enquiry in terms of paragraph 26B. The first respondent shall complete the enquiry expeditiously after affording an opportunity to the parties to examine their witnesses and peruse the documents.
The Writ Petition (Civi) is disposed of.
V.CHITAMBARESH.
JUDGE smm W.P.(C) No.17343 of 2012 5