Madras High Court
… vs M/S. Thaishola Estate on 7 March, 2025
W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058,
10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 20/02/2025 & 21/02/2025
Pronounced on : 07/03/2025
CORAM
THE HONOURABLE DR.JUSTICE A.D.MARIA CLETE
Writ Petition Nos. 10027, 10028, 10032, 10035, 10036, 10056,
10057, 10058 & 10060, 10296, 10703, 10706, 10708, 10720,
10722, 10723 of 2020
along with
W.M.P.Nos.12189, 13006, 13018 of 2020
The Regional Provident Fund Commissioner,
Employees' Provident Fund Organization
Regional Office, Bhavishyanidhi Bhavan,
Dr.Balasundaram Road,
Coimbatore – 641 018.
… Petitioner in W.P.Nos.10027,
10028, 10032, 10035,
10056, 10058, 10060,
10708, 10723 of 2020
The Assistant Provident Fund Commissioner,
Employees' Provident Fund Organization,
Regional Office, Bhavishyanidhi Bhavan,
Dr.Balasundaram Road,
Coimbatore – 641 018.
…Petitioner in W.P.Nos.10036,
10056, 10057, 10296,
10703, 10706, 10720,
10722 of 2020
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W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058,
10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020
Vs.
1. M/s. Thaishola Estate
Thaishola Post,
Kundah Bridge,
The Nilgrris 643 230. …Respondent in
W.P.No.10027 of 2020
2. M/s. Parkside Estate,
Nonsuch Post,
Coonoor,
The Nilgiris – 643 238.
… Respondent in
W.P.No.10028 of 2020
3. M/s. Glendale Estate,
Coonoor,
The Nilgris – 643 102,
Tamil Nadu. …Respondent in
W.P.No.10032 of 2020
4. M/s. R.Adithya Division,
Warwick Estate,
Kotagiri – 643 217,
The Nilgris.
…Respondent in
W.P.No.10035 of 2020
5. M/s. Mailoor Estate,
Kullakamby Post,
The Nilgris – 643 218.
…Respondent in
W.P.No.10036 of 2020
6. M/s. Lovedale Estate No.3,
Lovedale Post, Ootacamund,
The Nilgris – 643 001.
…Respondent in
W.P.No.10056 of 2020
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2 of 33
W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058,
10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020
7. M/s. Lovedale Estate No.2,
Lovedale Post, Ootacamund,
The Nilgris – 643 001.
…Respondent in
W.P.No.10057 of 2020
8. M/s. Sharath Narayan Division,
Warwick Estate,
Kothgiri – 643 217,
The Nilgris. …Respondent in
W.P.No.10058 of 2020
9. M/s. Krithya Jayaraman Division
Warwick Estate,
Kothgiri Post,
The Nilgris – 643 217. …Respondent in
W.P.No.10060 of 2020
10. M/s. Birin Spinning Mills,
No.1/110-A, SF No.538/2,
Mangalam Road, Periyakaruvampalayam,
Velayuthampalayam Po,
Avinashi – 641 654. …Respondent in
W.P.No.10296 of 2020
11. M/s. Kurinchi Pharmacies (P) Ltd.,
5/5, Gandhi Nagar,
Mettupalayam Road,
Coimbatore – 641 030.
…Respondent in
W.P.No.10703 of 2020
12. M/s. Coimbatore Capital Ltd.,
K.G.House, Government Arts College Road,
Coimabtore – 641 021.
…Respondent in
W.P.No.10706 of 2020
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W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058,
10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020
13. M/s. Sri Ambal Mills Ltd.,
No.89, Rathinasabapathy Street,
Co-Operative Colony,
Coimbatore – 641 038. …Respondent in
W.P.No.10708 of 2020
14. M/s. The Coimbatore District Central
Co-op Bank Limited,
No.80, State Bank Road,
Post Box No.3781,
Coimbatore – 641 018.
…Respondent in
W.P.No.10720 of 2020
15. M/s.Singara Estate,
P.B.No.15, Coonoor,
The Nilgiris.
…Respondent in
W.P.No.10722 of 2020
16. M/s. Palani Andavar Cotton & Synthetic Spinners Ltd.,
Rep. By its General Manager (Finance)
Mr.N.Devarajan,
231 Dhally Road, Udumalpet – 642 126,
Tiruppur District.
…Respondent in
W.P.No.10723 of 2020
Relief claimed in all W.Ps
To call for the records of the proceedings of the Employees
Provident Fund Tribunal Delhi dated 18.09.2014 in
ATA.No.270(13)2011 (W.P.No.10027 of 2020), order dated
18.09.2014 in ATA No.312(13)2011 (W.P.No.10028 of 2020),
order dated 18.09.2014 in ATA No.457(13)2011 (W.P.No.10032
of 2020), order dated 18.09.2014 in ATA No.471(13)2011
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W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058,
10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020
(W.P.No.10035 of 2020), order dated 18.09.2014 in ATA
No.484(13)2011 (W.P.No.10036 of 2020), order dated 18.09.2014
in ATA No.503(13)2011 (W.P.No.10056 of 2020), order dated
18.09.2014 in ATA No.504(13)2011 (W.P.No.10057 of 2020),
order dated 18.09.2014 in ATA No.518 (13)2011 (W.P.No.10058
of 2020), order dated 18.09.2014 in ATA No.519(13)2011
(W.P.No.10060 of 2020), order dated 24.11.2014 in ATA
No.819(13)2014 (W.P.No.10296 of 2020), order dated 17.06.2014
in ATA No.131(13)2014 (W.P.No.10703 of 2020), order dated
19.08.2014 in ATA No.203(13)2014 (W.P.No.10706 of 2020),
order dated 09.04.2012 in ATA No.96(13)2012 (W.P.No.10708 of
2020), order dated 17.06.2014 in ATA No.880(13)2013
(W.P.No.10720 of 2020), order dated 21.07.2009 in ATA No.23
(13)2005 (W.P.No.10722 of 2020), order dated 03.11.2014 in
ATA No.485(13)2010 (W.P.No.10723 of 2020) and to quash the
order passed by the issue of writ of certiorari and pass such further
orders as this Hon'ble Court may deem fit.
Relief claimed in W.M.Ps.
To dispense with the production of the original impugned order
dated 18.09.2014 in ATA No.457(13)2011 (WMP.No.12189 of
2020), order dated 09.04.2012 in ATA No.96(13)2012
(WMP.No.13006 of 2020), order dated 31.11.2014 in ATA
No.485(13)2010 (WMP.No.13018 of 2020) pending disposal of
the writ petition.
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W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058,
10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020
Appearance of Parties:
For Petitioners in all WPs : M/s.R.Meenakshi, V.Mohanapriya,
M.Suganya and A.Nambirajan,
Advocates
For Respondent : Mr.P.Thangaraj, R.Monoharan,
Advocates
in W.P.Nos.10027, 10028, 10032,
10036, 10056, 10057, 10703,
10706, 10720, 10722 &
10723 of 2020
For Respondent in
W.P.No.10296 of 2020 : M/s.G.Poonambalathiyagarajan,
S.Senthil Kumar,
M.Vijayaraghavan, Advocates
For Respondent
in W.P.No.10708 of 2020 : M/s. Karthikeyani, U.Manohar
Advocates
For Respondents
in W.P.Nos.10035, 10058
& 10060 of 2020 : No appearance
JUDGMENT
Heard.
2. In all these writ petitions, the Petitioners are the Regional Provident Fund Commissioner, Coimbatore, and the Assistant Provident Fund Commissioner, Coimbatore.
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3. In majority of the cases, the Respondents are tea estates located in the Nilgiris District. Upon receiving notices under Section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the "EPF Act") from the Petitioners, the Respondents challenged the demand for including the terrain allowance within the definition of "basic wage" under Section 2(b) of the EPF Act. Contending that such inclusion would impact their subscription obligations, they approached the Employees' Provident Fund Tribunal, Delhi, under Section 7-I of the EPF Act. The EPF Tribunal, after issuing notice to the Petitioner Authorities, allowed the appeals through various orders. In the appeals involving the tea estates, most of the Tribunal's orders were dated 18.09.2014, except for W.P. No. 10296 of 2020, which was dated 24.11.2014. The primary issue raised in these cases was whether the "terrain allowance" fell within the definition of "basic wage."
4. In another set of cases, involving textile mills, a cooperative bank, and a pharmaceutical company, the appeals challenged orders passed by the Petitioner Authorities under Section 14-B of the EPF Act. The EPF Tribunal, upon hearing these appeals, either interfered with the imposition of damages or reduced the rate of interest. However, different parties were granted different forms of relief, and the orders were issued on various dates.
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5. It is necessary to refer the appeals in which the issue under Section 14-B was raised, along with the reliefs granted by the Tribunal, the date of the Tribunal's order, and the year in which the Petitioner Department filed the writ petition.
Date of Delay in filing
Sl.No. Writ Petition No.
Tribunal's order Writ Petition
1. W.P.No. 10296/2020 24.11.2014 6 years
2. W.P.No. 10703/2020 17.06.2014 6 years
3. W.P.No. 10706/2020 19.08.2014 6 years
4. W.P.No. 10708/2020 09.04.2012 8 years
5. W.P.No. 10720/2020 17.6.2014 6 years
6. W.P.No.10722/2020 21.7.2009 11 years
7. W.P.No. 10723/2020 03.11.2014 6 years
6. It is alarming that the Petitioner EPF Department has approached this Court with an inordinate delay ranging from 6 to 11 years. The Regional Provident Fund Commissioner, Coimbatore, who is the Petitioner in most of these writ petitions, has provided a generic and repetitive explanation for the delay in paragraph 14 of the affidavit, which reads as follows:
“It is submitted that the documents were handed over to the earlier panel counsel for the petitioner. Due to ill health, he did not file the writ petition challenging the order of tribunal in time. The same was come to know recently, immediately. The petitioner received the back bundle and entrusted the case to the present counsel. The delay in filing the writ petition is neither wilful nor wanton. The delay is not condoned the poor employees will be put irreparable loss and hardship.” https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm ) 8 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020
7. In Writ Petition No. 10036 of 2020, where the writ petition was filed in the name of the Assistant Provident Fund Commissioner, the affidavit was sworn by A. Ravikumar, son of A. Jagannathan, who claimed to be the Regional Provident Fund Commissioner-II, Coimbatore. However, in the very next paragraph, the following averment appears:
“I am the Assistant Provident Fund Commissioner – II in the petitioner and as such I am well acquainted with the facts of the case”
8. The conduct of the Regional Provident Fund Commissioner in treating court procedures with such disregard and making statements contrary to the record is condemnable. At the relevant time, the Assistant Provident Fund Commissioner in Coimbatore was R. Anandan, S/o. N. Rajagopalan, as per the descriptions made in other writ petitions filed by the EPF Department. in W.P. No. 1242 of 2020, which was filed by the Assistant Provident Fund Commissioner and the affidavit was sworn by R. Anandan in his capacity as Assistant Provident Fund Commissioner.
9. If the officer treats this Court with such disregard, the credibility of his averments becomes highly questionable. The veracity of his claims is equally doubtful. It is implausible that the https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm ) 9 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 Regional Provident Fund Commissioner, Coimbatore, seeks to challenge Tribunal orders from 2014 but approaches this Court after an extraordinary delay of 6 to 11 years, casually attributing the delay to an unnamed panel lawyer’s ill health. It is inconceivable that a department vested with extensive statutory powers including investigation, issuing summons, attachment, arrest, and execution of its own orders through the sale of property could allow such a prolonged delay for 6 to 11 years solely due to the alleged illness of its counsel. The affidavit conspicuously fails to disclose the name of the counsel or specify the period of illness.
It is certainly beyond belief that an unexplained illness could persist for 6 to 11 years, only for the department to suddenly recover the case files and file all the writ petitions in 2020 as a batch. The extent to which this delay warrants the dismissal of the writ petitions will be examined at a later stage.
10. Before addressing the issue of delay, it is necessary to consider the maintainability of the writ petitions filed by the EPF Department against the Tribunal's orders, as there appears to be significant confusion and inconsistencies in judicial decisions. Initially, a learned Judge of this Court questioned the maintainability of such writ petitions filed by EPF officers in Regional Provident Fund Commissioner, Tirunelveli v. Prabha Beverages Private Ltd., reported in 2009 (3) LLJ 208, and held in para 6 to 8 as follows:
“6. As to the right of the Provident Fund Commissioner in filing the writ petition and https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm ) 10 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 challenging the order of the Tribunal in the light of Section 7L(4) of EPF Act, Mr.Vibhishanan, learned counsel for the petitioner submitted that the bar under Section 7L(4) of the EPF Act may not apply to the writ proceedings. The Provident Fund Commissioner having passed an order under Section 7A can be an aggrieved party and challenged its reversal by the Tribunal before this Court.
7. In more or less similar circumstances, under the Cinematograph Act, the Supreme Court vide its decision in Union of India -vs- K.M.Sankarappa reported in (2001) 1 SCC 582 held in para 7, which is as follows:-
''7. ........... The executive cannot sit in an appeal or review or revise a judicial order. The Appellate Tribunal consisting of experts decides matters quasi-judicially. A Secretary and/or Minister cannot sit in appeal or revision over those decisions. At the highest, the Government may apply to the Tribunal itself for a review, if circumstances so warrant. But the Government would be bound by the ultimate decision of the Tribunal". (Emphasis added)
8. When the Central Board of Film Certification came up before this Court challenging the order of the Tribunal, a Division Bench of this Court, to which I am (K.Chandru, J.) a party, had an occasion to consider the locus standi of the Central Board of Film Certification in Central Board of Film Certification -vs-
Yadavalaya Films ((2007) 2 MLJ 604). In para 22, it was observed as follows:-
''22. In our opinion, it is doubtful whether these appeals are maintainable, in view of the decision of the Supreme Court in Union of India -vs- K.M.Shankarappa, AIR 2000 SC 3678: (2001) 1 SCC 582: (2001) 1 MLJ 146 (SC)."
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11. Although this order was passed in 2008, the EPF Department filed a writ appeal only in 2010, numbered as W.A. No. 715 of 2010. A Division Bench of this Court, presided over by Justice D. Murugesan (as he then was), reversed the earlier decision in Regional Provident Fund Commissioner v. M/s. Prabha Beverages Private Ltd. & Anr., dated 12.07.2011, reported in 2011 (3) ULJ 188 (HC). In that judgment, in para 8, the Division Bench made the following observations:
“8. As far as the first contention is concerned, the learned Judge has observed that the appellant is not entitled to file a writ petition questioning the order of the Appellate Tribunal. In our opinion, the said finding of the learned Judge cannot be accepted. Though the appellant has passed the order on an enquiry under Section 7-A directing the first respondent-company to pay the contribution, it cannot be said that in the event the said order is reversed by the Appellate Tribunal, no further challenge could be made before the Court. If that argument is accepted, in all cases in the event the order of the original authority is reversed on appeal, the same would necessarily become final without any further challenge before any other forum or before this Court. To this extent, we are not inclined to accept the said finding of the learned single Judge.” However, the Division Bench upheld the Single Judge's order concerning the findings on the other issue addressed under Section 2A of the EPF Act.
12. Even before the Division Bench ruled on the issue, the learned Single Judge (Justice K. Chandru) addressed the matter in https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm ) 12 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 a batch of writ petitions in Assistant Provident Fund Commissioner, Employees Provident Fund Organisation & Ors. v. Employees Provident Fund Appellate Tribunal & Ors. (W.P. No. 20938 of 2004 and batch cases, dated 21.06.2011), reported in MANU/TN/2251/2011. These petitions, filed by officers of the EPF Department, were decided on their merits. However, on the question of maintainability—where the learned Judge had previously expressed doubt—he reiterated his concerns and also disagreed with a similar view taken by the Bombay High Court, holding as follows:
“20. Therefore, this Court is unable to agree with the reasoning of by the Bombay High Court in Nirmitee Holidays's case (cited supra). The unreported judgment of this Court in Prabha Beverages's case (cited supra) cannot be said to have decided the issue finally. Further, in that case, this Court went into the merits of the matter and only passed a passing reference. Hence, the objections stands overruled. At the same time, it must be cautioned that the PF authorities should not come on appeal without a strong legal case and for the mere sake of filing writ petitions. This word of caution is only rendered so that this Court is not clogged with unnecessary writ petitions thereby, leading to docket explosions. Hence the objection raised in this regard is overruled.”
13. However, despite the orders of both the Division Bench and the Single Bench, when another batch of writ petitions was filed by the EPF authorities, Justice Dhandapani dismissed those petitions on the ground of maintainability. He also disagreed https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm ) 13 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 with the earlier order dated 21.06.2011, referred to above, in his decision in The Assistant Provident Fund Commissioner v. The Presiding Officer, Employees Provident Fund Appellate Tribunal, Scope Minar Core-II & Ors., reported in MANU/TN/7375/2023, wherein he held in para 27, 30,31 and 32 as follows:
“ 27. ….....The order could be challenged by the authority by way of a writ petition only when the authority is clothed with authorisation by the Central Government or Board of Trustee to prefer appeal against the order passed by the appellate authority. In the absence of any power granted by the Central Government or Board of Trustee to the authority to file appeal assailing the order passed by the appellate authority, not only the original authority is barred from filing a writ petition, but any writ petition, if entertained would be against the statute, which is not the intent of the law makers. Further, it is to be pointed out that the only situation in which the original authority could put in issue an order in appeal is when the authority who had passed the order is not vested with jurisdiction. In all other scenarios, the original order merges with the appellate order and the appellate order becomes final and the original authority is bound by the order of the appellate authority.
....
30. The decision of the Apex Court in Mohtesham Mohd. Ismali case (supra) clearly sets at naught the order passed by the learned single Judge in W.P. Nos.17518/2010, etc. Batch, dated 21.06.2011, which has been referred to by the petitioner and also adverted to by this Court in the earlier portion of this order. In the absence of any explicit authorisation granted to the petitioner by the Central Government to file appeal/writ petition https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm )
14 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 against the order passed by the appellate authority/Industrial Tribunal, the act of the petitioner in filing the present petitions is not only beyond its jurisdiction, but is also against the statute, which cannot be permitted to be continued.
31. ....... this Court is of the considered view that the decision arrived at by the appellate authority, on the basis of the facts placed before it, cannot be the basis for this Court to entertain the writ petitions, more so, when the petitioner has no authorisation to act on behalf of the Central Government by filing the present petitions.
32. When the petitioner has no authorisation to file the writ petitions on behalf of the Central Government or Board of Trustee, challenge made to the order of the appellate authority by filing the writ petitions is an act without jurisdiction of the authority and, therefore, the writ petitions deserve to be dismissed by confirming the order passed by the Tribunal.”
14. This order was challenged in an appeal before the Division Bench of this Court in W.A. No. 2606 of 2024 (The Assistant Provident Fund Commissioner v. R. Ajay Kumar, Division Warwick Estate) and batch cases. A Division Bench comprising M.S. Ramesh and C. Kumarappan, JJ., by its order dated 03.09.2024, passed the following ruling:
“On a prima facie view, the decision of the Constitutional Bench in the case of L.Chandra Kumar v. Union of India, reported in (1997) 3 SCC 261 : (1997 (2) SCR 1186, the order of the tribunal would be amenable to writ jurisdiction and hence, the order of the learned Single Judge impugned in these appeals, may warrant interference.
2. .....
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3. There shall be an interim stay of the order of the learned Single Judge, in so far as it holds that the writ petition by the Employees' Provident Fund Organisation, is not maintainable”.
15. When the legal position is well-settled, yet counsel on both sides continue to rely on outdated precedents that no longer hold value, it results in an unnecessary waste of this Court's time. In one such case, W.P. No. 37603 of 2015, filed by the EPF Department, counsel for the private party relied on the judgment of Justice Dhandapani while arguing before Justice R.N. Manjula. However, by her order dated 02.01.2025, the learned Judge rejected this submission and, after referring to earlier decisions, held as follows:
“21. Though it is claimed by the learned counsel for the 2nd respondent that the later order of his Lordship M. Dhandapani is in conflict with the earlier order of his Lordship Justice K.Chandru (as he then was), I find both the orders do not contradict with each other on principle. Both the orders approve the exception when the appellate authority passes an order without jurisdiction.
22. But it appears from the discussion of the orders of His Lordship Justice M.Dhandapani, that he has predominantly dealt the right to prefer an appeal under Section 7-I of the EPFMA Act. The order does not speak about the lack of locus standi on the part of the authority to maintain a writ Petition but to prefer an appeal under Section 7-I of the Act. Under paragraph No.16 of the order, the earlier order passed by his Lordship Justice https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm )
16 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 K.Chandru (as he then was) has been referred and discussions were made as to whether the above judgment of his Lordship Justice K.Chandru (as he then was), can be taken as a binding precedence. Both the judgments have held that the original authority has to accept the order of the appellate Authority and the exception is only when the Appellate Authority has passed an order without jurisdiction.
23. So far as the lack of jurisdiction on the part of the appellate tribunal is concerned, both the orders do not make any distinction as to the locus standi of the organization to prefer a writ petition. But an addition made in the later judgment of his Lordship Justice M. Dhandapani, is to get proper authorization from the Central Government.
24.However, it is learnt that the later judgment of his Lordship Justice M.Dhandapani, has been stayed by a Division Bench judgment of this Court through an order passed in W.A.No.2606, 2616 and 2635 of 2024. As on today, the position of law on this vital point is only as per the dictum laid down by his lordship Justice K.Chandru (as he then was). Hence the organizations can maintain a writ petition in case the appellate authority lacks jurisdiction and passes an order without jurisdiction.”
16. When the law is well-settled and binding precedents exist, it is regrettable that members of the Bar continue to cite decisions that are either not binding or no longer applicable. This reflects an unwillingness to engage with the finer details of such issues, particularly when the question of maintainability is raised. Moreover, the EPF Department, being fully aware of these orders, has repeatedly failed to present them in a structured manner and https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm ) 17 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 argue the matter with the necessary legal authority. Consequently, this Court finds it necessary to make these observations and place the earlier rulings on record—not only to clarify the legal position but also to ensure that future courts are not misled due to a lack of scholarly diligence.
17. Apart from the fact that the Petitioners have filed affidavits that do not conform to legal standards and have made factually incorrect statements, as already noted, there is an inordinate delay of 6 to 11 years in filing these writ petitions. The Regional Provident Fund Commissioner, Coimbatore, has sworn to identical averments in paragraph 14 of his mechanically reproduced affidavits, or in some cases, in paragraph 13, in an attempt to justify the delay. The explanation provided is wholly unconvincing, particularly when the impugned orders were passed as early as 2014, and in some cases, even earlier. It is simply unbelievable that the panel lawyer remained unwell for such an extended period, and that a vast organization like the EPF Department was solely dependent on one counsel. The very mention in the affidavit that the lawyer in question was a "panel lawyer" suggests that there were multiple lawyers available, further undermining the credibility of this explanation.
18. Dismissing such excuses, the Supreme Court, in its decision in Office of the Chief Post Master General & Ors. v. Living Media India Ltd. & Anr., reported in 2012 (3) SCC 563, https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm ) 18 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 held as follows:
“13....... it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay.”
19. The Supreme Court, in its decision in P.S. Sadasivaswamy v. State of Tamil Nadu, reported in 1975 (1) SCC 152, held that petitions filed under Article 226 are not liable to be entertained in cases of delay and laches. The Court observed as follows:
“......It is not that 'here is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm ) 19 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extra-ordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters- The petitioner's petition should, therefore have been dismissed in limine. Entertaining such petitions is a waste of time of the court. It clogs the work of the Court and impedes the work of the court in considering legitimate grievances as also its normal work. We consider that the High court was right in dismissing the appellant's petition as well as the appeal.”
20. Similarly, in State of Madhya Pradesh v. Nandlal Jaiswal & Ors., reported in 1986 (4) SCC 566, the Supreme Court held as follows:
“ 6. It is well settled that the power of the High Court to issue an appropriate writ under Art. 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactory explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extra ordinary remedy under the writ jurisdiction became it is likely to cause confusion and public inconvenience and brings in its train new injustices. The lights of third parties my intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm )
20 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs with the High Court in deciding whether or not to exercise such jurisdiction.”
21. Furthermore, in Karnataka Power Corporation Ltd. through its Chairman & Managing Director & Anr. v. K. Thangappan, reported in 2006 (4) SCC 322, the Supreme Court held as follows:
“Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports (AIR 1970 SC 769). Of course, the discretion has to be exercised judicially and reasonably.”
22. Even in cases where the cause of action continues on a month-to-month basis, such as the denial of pension, the Supreme Court in Shiv Dass v. Union of India, reported in 2007 (9) SCC 274, held that a writ petition should not be entertained if filed beyond three years. The Court observed as follows:
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm ) 21 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 “In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit appellant had a case.
If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone.”
23. When the same Petitioners previously filed a batch of writ petitions in 2017 challenging the Tribunal’s orders in relation to another tea estate, with a delay of 3 ½ years, the petitions were dismissed by Justice T. Raja in W.P. Nos. 33079 to 33082 of 2017, by order dated 19.12.2017. The learned Judge held as follows:
“Challenging the impugned orders dated 18.09.2014 and 26.05.2014 passed by the first respondent / the Presiding Officer, the Employees Provident Fund Appellate Tribunal, New Delhi, the petitioners have filed these writ petitions, after a lapse of 3 ½ years. In the impugned orders, the first respondent Tribunal had refused to recover the interest and damages on the remittance made by the second respondent herein. Since the orders were passed as early as on 18.09.2014 and 26.05.2014, the present writ petitions filed after a lapse of 3 ½ years by the petitioners who are serving as Assistant Provident Fund Commissioner and the Regional Provident Fund Commissioner, deserve to be dismissed on the ground of latches. 2. Besides, it is well settled law that the delay defeats justice and equities. Equity favours a vigilant rather than an https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm ) 22 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 indolent litigant and this being the basic tenet of law, the question of entertaining the prayer of the petitioners, who are serving as Assistant Provident Fund Commissioner and Regional Provident Fund Commissioner, challenging the impugned orders dated 18.09.2014 and 26.05.2014 passed by the first respondent Tribunal, after a lapse of 3 ½ years, does not arise in this matter. 3. Thus, on the ground of latches, the writ petitions are dismissed. No Costs.
Consequently, connected miscellaneous petitions are closed. ”
24. Thus, on the short ground of unexplained delay and laches, all the writ petitions are liable to be dismissed. Consequently, all the WMPs are also liable to be dismissed.
25. With respect to the claim for subscription by including the terrain allowance, which is the subject matter of the majority of these writ petitions, the EPF Department contends that basic wage, as defined under Section 2(b) read with Section 6 of the EPF Act, includes such allowances. Section 2(b) is reproduced below:
“Basic wages” means all emoluments which are earned by an employee while on duty or on leave or on holidays with wages in either case in accordance with the terms of the contract of employment and which are paid or payable in cash to him, but does not include—
(i)the cash value of any food concession;
(ii)any dearness allowance (that is to say, all cash payments by whatever name called paid to an employee on account of a rise in the cost of living), house-rent allowance, overtime allowance, bonus https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm ) 23 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 commission or any other similar allowance payable to the employee in respect of his employment or of work done in such employment;
(iii)any presents made by the employer;”
26. The grievance of the EPF Department is that the Tribunal initially ruled that the "terrain allowance" was subject to subscription under the EPF Act. Following this, the Department filed a writ petition before this Court challenging that decision. However, they later withdrew the writ petition and instead filed a review petition before the Tribunal, which was allowed. In the review order, the Tribunal held that the terrain allowance does not fall within the definition of basic wage liable for deduction. In the impugned orders dated 18.09.2014, the Tribunal explicitly held that the terrain allowance was not uniform for estate workers and was not paid to all categories of employees. If a particular allowance falls within the exceptions under Section 2(b) and is covered under sub-section (ii)—meaning it is not earned by all employees—it is excluded from the definition of basic wage.
27. Although the Government of Tamil Nadu had fixed minimum wages for plantation workers, which was under
litigation before this Court, a wage settlement was reached on 04.09.2008 and later restructured through another settlement on 29.05.2019. Under this settlement, it was agreed to increase the consolidated daily wage from Rs. 86 to Rs. 90 per day, introduce a Fixed Dearness Allowance of Rs. 14 per day, and reduce the Terrain Allowance from Rs. 19 to Rs. 11.60 per day. The https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm ) 24 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 settlement also provided for Provident Fund (PF) contributions to be calculated on Rs.104, instead of the previous Rs.86. However, the Terrain Allowance payable at Rs.11.60 per day was not subjected to any PF contributions.
28. Although the Government has fixed minimum wages for plantation workers, employees retain the right to enter into wage settlements that establish a different wage structure, provided it does not fall below the prescribed minimum wage. The law mandates that no employer shall pay wages less than the minimum wage fixed for that employment. The Minimum Wages Act only prohibits agreements that contract out of its provisions, preventing workers from receiving wages lower than the statutory minimum, as stipulated under Section 25 of the Act.
29. Section 2(h) of the Minimum Wages Act, 1948, defines "wages" in broad terms, as follows:
"wages" means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment and includes house rent allowance, but does not include-
(i) the value of
(a) any house accommodation, supply of light, water, medical attendance, or
(b) any other amenity or any service excluded by general or special order of the appropriate Government;
(ii)any contribution paid by the employer to https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm ) 25 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 any Pension Fund or Provident Fund or under any scheme of social insurance;
(iii)any travelling allowance or the value of any travelling concession;
(iv)any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or
(v)any gratuity payable on discharge;”
30. The learned counsel for the EPF Department referred to the judgment of Justice M. Dhandapani in W.P. No. 31333 of 2016 and batch cases, dated 20.07.2023, wherein the EPF Department's claim to include conveyance allowance, shift allowance, and attendance allowance for all apprentices was upheld. Similarly, the learned counsel also relied on a Division Bench judgment in W.P. No. 31076 of 2016, dated 23.07.2024, where the Tribunal’s order excluding certain allowances was reversed. In both cases, reliance was placed on the Supreme Court’s ruling in Regional Provident Fund Commissioner (II), West Bengal v. Vivekananda Vidyamandir & Ors., reported in 2020 (17) SCC 643. In that case, while dealing with the issue of basic wage, the Supreme Court in paragraph 14 held as follows:
“14. Applying the aforesaid tests to the facts of the present appeals, no material has been placed by the establishments to demonstrate that the allowances in question being paid to its employees were either variable or were linked to any incentive for production resulting in greater output by an employee and that the allowances in question were not paid across the board to all employees in a particular category or were being paid especially to those who avail the opportunity. In https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm ) 26 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 order that the amount goes beyond the basic wages, it has to be shown that the workman concerned had become eligible to get this extra amount beyond the normal work which he was otherwise required to put in.
There is no data available on record to show what were the norms of work prescribed for those workmen during the relevant period. It is therefore not possible to ascertain whether extra amounts paid to the workmen were in fact paid for the extra work which had exceeded the normal output prescribed for the workmen. The wage structure and the components of salary have been examined on facts, both by the authority and the appellate authority under the Act, who have arrived at a factual conclusion that the allowances in question were essentially a part of the basic wage camouflaged as part of an allowance so as to avoid deduction and contribution accordingly to the provident fund account of the employees. There is no occasion for us to interfere with the concurrent conclusions of facts. The appeals by the establishments therefore merit no interference. Conversely, for the same reason the appeal preferred by the Regional Provident Fund Commissioner deserves to be allowed.”
31. In the present case, the EPF Tribunal, while reviewing its earlier order, made categorical findings in paragraphs 33 and 34, as follows:
“The Respondent, on the contrary has held that there is uniformity in the payment of Terrain Allowance / Allowance, despite the objections raised by the Appellant. The Respondent has not explained his conclusion in detail, regarding such uniform payment, as contended by the department. The authority has simply found that the allowances are paid to all categories of employees across the board, without looking into the various settlements placed before them and submissions made by the Appellant. https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm ) 27 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 There is a factual error committed by the Respondent and the same mistake has occurred in the earlier order passed by this Tribunal in this appeal.
I also find force in the submissions of the Appellant that the elements of Production Bonus and Special Job Incentive are not allowance per se that they are in the nature of incentives and Bonus payments, payable depending on certain contingencies and hence they fall under the excluded category of the definition of Section 2(b) of the EPF Act. That a natural extrapolation of the above arguments leads to a conclusion that the legislative intent while giving the definition of “basic wages” was to include within its ambit such emoluments that are earned by all the employees of the concern (as per the contract of labour), and that the nature of these emoluments and allowances is that of ‘basic wage’, and it may be said that this definition of ‘basic wage’ assumes a common meaning across all the concerns of a similar nature. Further to exclude those emoluments and payments which are not aid to all the employee / workmen. Thus understood “basic wage” never includes the additional emoluments which some workmen may earn, on the basis of a system of bonuses related to the production. The quantum of earnings and such bonuses varies from individual to individual according to their efficiency an diligence; it will vary sometimes from season to season with the variations of working conditions in the factory or other place where the work is done; it will vary also with variations in the rate of supplies of raw material on in the assistance obtainable from machinery. This very element of variation, excludes this part of workmen’s emoluments form the connotation of “basic wages”
32. In one of the batch cases decided by Justice K. Chandru, concerning the levy of interest and damages under https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm ) 28 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 Section 14B and the Tribunal's power to interfere, an appeal was filed before a Division Bench in Writ Appeal No. 1382 of 2014. The Division Bench, in its decision dated 27.06.2023, in Assistant Provident Fund Commissioner v. Employees Provident Fund Appellate Tribunal & Indian Express Publication (Madurai) Ltd., Coimbatore, modified the order concerning damages but nonetheless upheld the Tribunal's power to interfere in certain cases. The Court held as follows:
“8. A reading of Section 7-Q of the EPF Act, 1952 makes it clear that interest will have to be paid by the Employer. The word used in Section 14- B of the Act, 1952 is 'may' and the discretion exercised by the EPFO Authority cannot be mechanically interfered with by the Tribunal, unless reasons given by the Authority are proper. In the light of Section 7L, the Tribunal is empowered to reduce or completely waive the damages that may be passed by the Original Authority. In this case, the Tribunal has exercised its discretion and passed the order. We have already made an observation in W.A.No.2349 of 2022 dated 06.06.2023 that after introduction and amendment of Section 7I of the Act, the power of the Tribunal cannot be curtailed, as an appeal can be filed before the Tribunal against the Board's decision. Section 7I of the Act reads as follows:
"7-I. Appeals to Tribunal - "(1) Any person aggrieved by a notification issued by the Central Government, or an order passed by the Central Government or any authority, under the proviso to sub-section (3), or sub- section (4), of section 1, or section 3, or sub-section (1) of section 7A, or section 7B [except an order rejecting an application for review referred to in sub-
section (5) thereof], or section 7C, or section 14B, may prefer an appeal to a Tribunal against such notification or order. (2) Every appeal under sub- https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm ) 29 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 section (1) shall be filed in such form and manner, within such time and be accompanied by such fees, as may be prescribed."
9. It is pertinent to point out here that as per the provisions of the EPF Act, 1952, the interest on the PF contribution is mandatory. At the same time, in respect of levy of damages, it is left to the discretion of the Authority to decide the percentage of amount payable by the Employer. Of course, such percentage will have to be decided based on the facts and circumstances of each case. The schedule rate mentioned in Regulation 32-A is only the Upper Limit and it does not mean that the Authority or the Tribunal will have to mechanically apply it.”
33. Therefore, this is not a case warranting interference, particularly in matters where the definition of basic wage and the inclusion of certain wage components have been considered. As for cases where the Tribunal granted relief concerning damages levied under Section 14B of the EPF Act—either by waiving the full amount or a portion of the interest—the Tribunal may have erred in referring to "mens rea" as a necessary factor to justify the delay in payment to avoid damages. Similarly, in some cases, the Tribunal’s reliance on BIFR orders to grant relief may not be legally sustainable, as such grounds have already been held inapplicable for establishments seeking to resist either interest payments or the levy of damages. At the same time, the Tribunal considered procedural lapses on the part of the EPF Department, as well as the failure of the respondents to substantiate their claims with proper records. In any event, this Court is not inclined to examine these issues further at this stage, especially when all https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm ) 30 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 the writ petitions have been dismissed on the grounds of delay and laches.
34. In light of the foregoing, all the above writ petitions are hereby dismissed, and all the connected Miscellaneous Petitions are accordingly closed. No costs.
07.03.2025 NCC : Yes / No Index : Yes / No Internet : Yes / No av Copy to
1. The Regional Provident Fund Commissioner Employees’ Provident Fund Organisation Regional Office, Bhavishyanidhi Bhavan, Dr.Balasundaram Road, Coimbatore – 641 018
2. The Assistant Provident Fund Commissioner Employees’ Provident Fund Organisation Regional Office, Bhavishyanidhi Bhavan, Dr.Balasundaram Road, Coimbatore – 641 018.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm ) 31 of 33 W.P.Nos.10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058, 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 DR. A.D.MARIA CLETE, J.
av Pre-delivery Judgment in Writ Petition Nos. 10027, 10028, 10032, 10035, 10036, 10056, 10057, 10058 & 10060, 10296, 10703, 10706, 10708, 10720, 10722 & 10723 of 2020 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/03/2025 02:40:36 pm ) 32 of 33