Kerala High Court
P.Hamsa vs Asst.Provident Fund Commissioner on 28 July, 2010
Author: K.Surendra Mohan
Bench: K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23362 of 2010(U)
1. P.HAMSA, AGED 46, S/O.ABOOBACKER,
... Petitioner
Vs
1. ASST.PROVIDENT FUND COMMISSIONER,
... Respondent
2. MOHAMMED YOUNAS SALIM,
For Petitioner :SRI.S.SACHITHANANDA PAI
For Respondent :SRI.JOY THATTIL ITOOP, SC, EPF ORGANISA
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :28/07/2010
O R D E R
K.SURENDRA MOHAN, J
...........................................
WP(C).NO.23362 OF 2010
............................................
DATED THIS THE 28TH DAY OF JULY, 2010
JUDGMENT
The petitioner is the owner of a building bearing Door No.11/1162 of Kumily Panchayat where a Lodge and Restaurant are being conducted. According to the petitioner, though the Lodge is conducted by him, the Restaurant is leased out to the second respondent, as per Ext.P1 Lease Agreement. Both the establishments are distinct and separate entities. However, clubbing both the establishments together, the first respondent passed a determination order under Section 7A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (`the Act' for short) demanding an amount of Rs.1,69,996/- as contribution. Thereafter, as per Ext.P3, an amount of Rs.27,696/- has been attached. Ext.P3 also threatens initiation of prosecution proceedings against the petitioner. Therefore, the petitioner has filed this writ petition seeking appropriate reliefs.
2. Adv.Joy Thattil Itoop who appears for the first respondent submits that Ext.P2 was passed after hearing the petitioner and that Wpc 23362/2010 2 Ext.P3 was issued for the reason that the petitioner did not comply with the order passed against him by making payment of the amounts determined therein. It is pointed out that Ext.P2 is an appealable order under Section 7 I of the Act and therefore this writ petition is not maintainable.
3. The counsel for the petitioner points out that Ext.P3 has been issued even before the expiry of the statutory period prescribed for filing an appeal. Therefore, the petitioner was constrained to approach this court by filing this writ petition.
4. It is no doubt true that Ext.P2 is an appealable order. Though the petitioner contends that no notice was issued to the second respondent who is the person liable to pay contributions that are demanded, I do not propose to consider the legality of the contentions advanced, in view of the fact that the remedy of the petitioner for challenging Ext.P2 is by way of statutory appeal under Section 7 I of the Act. It is open to the petitioner to raise all his contentions before the Tribunal in the appeal to be filed by him. However, I notice that Ext.P3 has been issued even before the expiry of the statutory period of Wpc 23362/2010 3 limitation prescribed by Section 7 I for filing an appeal challenging an order under Section 7 A. Ext.P2 determination order is dated 25.2.2010 while Ext.P3 is dated 16.7.2010, issued even before the expiry of 30 days; the same is absolutely without any justification. A statutory authority like the first respondent should have waited for the statutory period for filing an appeal to expire before initiating coercive proceedings like Ext.P2.
5. In the above circumstances, this writ petition is disposed of directing the petitioner to challenge Ext.P2 by availing the statutory remedies that are prescribed by the Act. Further proceedings based on or pursuant to Exts.P3 and P5 shall be kept in abeyance for a period of two months.
K.SURENDRA MOHAN, JUDGE lgk