Kerala High Court
The Kottayam Co-Operative Urban Bank ... vs State Of Kerala on 2 September, 2022
Author: Alexander Thomas
Bench: Alexander Thomas
WA No.1254/2022 1/6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
Friday, the 2nd day of September 2022 / 11th Bhadra, 1944
WA NO. 1254 OF 2022
AGAINST THE JUDGMENT DATED 23.10.2019 IN WP(C) 5371/2014 OF THIS COURT
APPELLANT/PETITIONER:
THE KOTTAYAM CO-OPERATIVE URBAN BANK LTD. THIRUNAKKARA,
KOTTAYAM686001., REP: BY ITS GENERAL MANAGER.
BY ADV.SRI.SURIN GEORGE IPE
RESPONDENT/RESPONDENTS:
1. STATE OF KERALA REP: BY THE SECRETARY, CO-OPERATION DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.- 695 001.
2. THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND
ORGANISATION, SUB - REGIONAL OFFICE, CMS COLLEGE ROAD,
KOTTAYAM-686001.
BY SENIOR GOVERNMENT PLEADER FOR R1
STANDING COUNSEL SRI.JOY THATTIL ITTOOP FOR R2
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay the operation of the impugned judgment dated 23.10.2019 in
W.P.(C).No.5371/2014.pending disposal of the above Writ Appeal
This Writ Appeal coming on for orders on 02/09/2022 upon perusing
the appeal memorandum , the court on the same day passed the following:
P.T.O
WA No.1254/2022 2/6
ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.
=============================================
W. A. No. 1254 of 2022
(arising out of the impugned judgment dated 23.10.2019 in W.P.(C).No.5371/2014)
=============================================
Dated this the 2nd day of September, 2022
ORDER
Admit Writ Appeal.
2. The learned Senior Government Pleader has taken notice for R-1 (State of Kerala) and Sri.Joy Thattil Ittoop, learned Standing Counsel for the Employees Provident Fund Organisation (EPFO) has taken notice for R-2. The Registry will show the names of abovesaid counsels in the Cause List. Service complete.
3. It is urged by Sri.Surin George Ipe, learned counsel appearing for the writ appellant/writ petitioner that, the main aspects directed to be considered by this Court, in terms of the remit made as per Ext.P-1 judgment dated 1.7.2013 in WP(C).No.3741/2010, have not been properly and effectively considered by the 2nd respondent while issuing the impugned Ext.P-4 proceedings dated 20.9.2013. In that regard, it is pointed out that, the aspects borne out from Exts.P-2 & P-3 in that WP(C) [produced as Exts.P-2 & P-3 herein] have not been properly taken into account while deciding the issue. Further that, a Three Judges' WA No.1254/2022 3/6 W.A. No. 1254/2022 ..2..
Bench of the Apex Court has rendered Anx.A-1 order dated 5.10.2017 in Civil Appeal No.15680/2017 in the case Nashik Merchant Co-operative Bank Ltd. v. The Regional Provident Fund Commissioner-II, wherein various parameters were directed to be taken into account by the Provident Fund authorities in similar situations involving deposit collectors/pigmy collectors in co-operative societies registered in similar co-operative societies, as can be seen from a reading of para 3 of the said judgment, and none of those parameters have been duly taken into account by the 2nd respondent while rendering the impugned decision at Ext.P-4, etc.
4. Further, it is pointed out that, reliance placed in the impugned judgment in this WP(C), on the decisions of this Court in South Malabar Gramin Bank v. Regional Provident Fund Commissioner [2013 (1) KLT 753] and South Malabar Gramin Bank v. Regional Provident Fund Commissioner [2019 (2) KHC 126] are not tenable inasmuch as the deposit collectors of the said bank were regular and full time employees of the said bank who could not have any other employment or self employment, whereas in the instant case, the deposit collectors are WA No.1254/2022 4/6 W.A. No. 1254/2022 ..3..
not full time or regular employees of the appellant co-operative society, but are having other avocations and self employment, and some of them are even autorickshaw drivers who utilize their time on part time basis for doing the functions of deposit collectors on commission basis. Hence, it is urged that reliance on the abovesaid reported decisions of this Court is not correct inasmuch as the same will not apply to the facts and circumstances of the present case, etc.
5. The abovesaid submissions of the appellant's counsel are strongly opposed by Sri.Joy Thattil Ittoop, learned Standing Counsel for the EPFO appearing for R-2 and that he would support the reasonings in the impugned Ext.P-4 order.
6. After hearing both sides, we are of the view that the appellant has made out a strong prima facie case in the matter. The impact of Anx.A-1 judgment of the Apex Court as well as the applicability or otherwise of the dictum laid down by the Apex Court in the aforecited reported decisions to the facts of this case, etc. will have to be examined in detail. Further, the subject matter of the lis will have to be protected pending consideration of the appeal. For all these reasons, it is ordered in the interest of justice WA No.1254/2022 5/6 W.A. No. 1254/2022 ..4..
that, further coercive steps in pursuance of the impugned Ext.P-4 order dated 20.9.2013 issued by the 2 nd respondent Assistant Provident Fund Commissioner, Kottayam, will stand deferred and will be kept in abeyance. This order will be in force for a period of 6 weeks.
List on 12.10.2022.
Hand over.
Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
SHOBA ANNAMMA EAPEN, JUDGE MMG 02-09-2022 /True Copy/ Assistant Registrar WA No.1254/2022 6/6 ANNEXURE A1: JUDGMENT OF THE HON'BLE SUPREME COURT IN CIVIL APPEAL 15680/2017 DATED 05-10-2017.
EXIHIBIT P1 : TRUE COPY OF THE JUDGMENT DATED 1-7-2013 In WPC 3741/2010 EXIHIBIT P2 : TRUE COPY OF G.O.DATED 13-11-2009 EXIHIBIT P3 : TRUE COPY OF SRO NO.486/2006 EXIHIBIT P4 : TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 20-9-2013