Kerala High Court
M/S. Popular Vehicles & Services Ltd vs The Regional Provident Fund ... on 18 March, 2022
Author: Murali Purushothaman
Bench: Murali Purushothaman
WP(C) No.9345/2022 1/5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
Friday, the 18th day of March 2022 / 27th Phalguna, 1943
W.P.(C) NO. 9345 OF 2022 (P)
PETITIONER:
M/S. POPULAR VEHICLES & SERVICES LTD., KUTTUKKARAN CENTRE,
MAMANGALAM, KOCHI - 682024, REPRESENTED BY ITS DIRECTOR, MR. NAVEEN
PHILIP.
RESPONDENTS:
1. THE REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND
ORGANIZATION, SUB REGIONAL OFFICE, 36/685A, BHAVISHANIDHI BHAVAN,
KALOOR, KOCHI - 682017.
2. THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL, PANAMPALLY NAGAR, KOCHI,
PIN - 682036, REPRESENTED BY ITS PRESIDING OFFICER.
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to stay the operation and implementation of Ext.P2 and P5 orders
and all further proceeding pursuant thereto, pending disposal of the Writ
Petition.
This petition coming on for admission upon perusing the petition and
the affidavit filed in support of WP(C) and upon hearing the arguments of
M/S.P.BENNY THOMAS, D.PREM KAMATH, TOM THOMAS (KAKKUZHIYIL), ABEL TOM
BENNY, JYOTHISH KRISHNA, KURIAN OOMMEN & JAIKRISHNAN.M.PISHARODI,
Advocates for the petitioner and of SRI.SAJEEV KUMAR K. GOPAL, Advocate
for R1, the court passed the following:
[P.T.O.]
WP(C) No.9345/2022 2/5
MURALI PURUSHOTHAMAN, J.
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WP(C) No.9345 of 2022
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Dated this the 18th day of March, 2022
ORDER
Admit.
Sri.Sajeev Kumar K. Gopal takes notice for the first respondent. Notice to the 2nd respondent is dispensed with.
2. The petitioner is challenging Ext.P2 order passed by the first respondent and Ext.P5 order passed by the second respondent. Ext.P2 is an order assessing dues under Section 7A(1) of the Employees' Provident Funds & Miscellaneous Provisions Act, 1952. The petitioner has challenged the assessment of dues under Section 7A on the ground that while determining the dues under Section 7A, no enquiry under paragraph 26B of the Employees Provident Funds Scheme has been conducted to determine whether the trainees are employees of the establishment.
3. According to Sri. Sajeev Kumar K. Gopal, the learned Standing counsel, the determination of the amounts due under Section 7A includes determination on the question WP(C) No.9345/2022 3/5 WP(C) No.9345 of 2022 2 as to whether the trainees are employees or not and there is no need for a separate enquiry under para 26B and it is the very same authority who has to make determination under Section 7A.
4. It is contented by the learned Standing Counsel that 622 employees whose contributions have been determined are employees under Section 2(f) of the Act and they are not trainees.
5. Sri.Benny P.Thomas, the learned counsel for the petitioner relied on the judgment of the Honourable Supreme Court in Central Arecanut and Coco Marketing and Processing Company Ltd Vs. RPFC [AIR 2006 SCC 971], wherein the Hon'ble Supreme Court has held that model standing orders in terms of Section 12A is applicable while deciding the eligibility of an employee to be enrolled to the fund. Therefore, according to Sri.Benny, going by the standing orders that are applicable to the petitioner establishment, 622 persons referred to in the order issued under Section 7A cannot be treated as employees for the WP(C) No.9345/2022 4/5 WP(C) No.9345 of 2022 3 purpose of determination of dues.
The 1st respondent shall file counter affidavit. There will be an interim stay of operation and implementation of Ext.P2 and Ext.P5 orders for a period of three months.
Sd/-
MURALI PURUSHOTHAMAN
ska JUDGE
18-03-2022 /True Copy/ Assistant Registrar
WP(C) No.9345/2022 5/5
APPENDIX OF W.P.(C)No.9345/2022
Exhibit P2 TRUE COPY OF THE ORDER DATED 11.03.2015 PASSED BY THE
1ST RESPONDENT.
Exhibit P5 TRUE COPY OF THE ORDER 16.11.2021 IN APPEAL NO.
185/2019 (OLD NO.337(7)/2015).