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Judgment
S.J. Mukhopadhaya, J.—As the Writ Petitions have been preferred by the parties who are petitioner(s) or respondent(s) to each of the
cases and as the Writ Petitions are inter-connected, they were heard together and disposed of by this common order.
Writ Petition No. 6603 of 2004 has been preferred by Mahavir Plantations Private Limited, Willington Island, Kochi, against the proceedings
dated 18.2.2004 issued by the second respondent-Recovery Officer, Employees'' Provident Fund Organisation, Sub-Regional Office, Dr.
Balasundaram Road, Coimbatore.
The very same Company, through its Prospective Estate, Naduvattam, Udhagamandalam Taluk, The Nilgiris, preferred Writ Petition No. 4237 of
2005 against the notice dated 5.1.2005 issued by the Sub-Judge-cum-Secretary, Nilgiris District Legal Services Authority, Udhagamandalam, at
the instance of the District Judge-cum-President/Chairman of the Nilgiris District Legal Services Authority, whereby Mahavir Plantations Private
Limited has been directed to appear in person.
The third Writ Petition in W.P. No. 1362 of 2007 has been preferred by one Mr. P. Mani, a permanent employee of Mahavir Plantations Private
Limited, in a representative capacity on behalf of several workmen of the said Company, for a direction to the respondents 1 to 3 to enquire into
the affairs of the fourth respondent-Mahavir Plantations Private Limited and to pay to the workmen the outstanding dues and for compliance of the
provisions of the Plantation Labour Act. This permanent employee has also been impleaded as party respondent (i.e. third respondent) in W.P.
No. 4237 of 2005 preferred by the said Company.
The case of Mahavir Plantations Private Limited (hereinafter referred to as ''the Company'') in W.P. No. 6603 of 2004 is that it is engaged in
manufacture, cultivate and export of tea and spices of approximately 8,300 acres of prima plantation lands in the States of Kerala and Tamil Nadu,
employing about 4,500 workers. According to the Company, due to various reasons, including severe recession in the tea industry and the effect
of globalisation since 1998, the plantation has started incurring severe losses. In fact, since 1996, labour problem started and the workmen started
demanding higher wages and other benefits, which the Company could not meet because of severe losses.
It is further alleged by the Company that the workers resorted to illegal practices like plucking of tea leaves and selling the same on their own
without handing over the plucked leaves to the Management. Several complaints were made to the Police, as also to the Deputy Commissioner of
Labour and after several rounds of discussion, Deputy Commissioner of Labour passed an order on 16.6.2000, directing that the value of green
leaves stolen by the workers should be assessed and the said value should be adjusted against the dues if any and future wages payable to the
workers by the Management of the Company. Since then, the work on the plantations was slowly normalizing, but unfortunately, on the Prospects
and Liddlesdale Estates of the Company, situated at Naduvattam Village, some of the workers continued non-co-operation and man-handling of
the executives, due to which, the Company had to declare lock-out as on 31.12.2001, which continued till 15.5.2002. The lock-out was
subsequently lifted after an understanding was reached between the workers and the trade unions on 13.5.2002 with the Management, which was
subsequently informed to the Regional Labour Commissioner, Coimbatore and Government authorities. On the High Forest Estate of the
Company, the workers were on strike since July 2001 upto September 2002 and there also, after calling off the strike, the normalcy came.
According to the Company, it has made complaint to the Superintendent of Police, Udhagamandalam on 8.9.2002 and even thereafter,
regarding the theft of tea leaves from the Estate(s), but no action has been taken and having no other option to the Company, it had approached
this Court in W.P. No. 14117 of 2003. In the said case, by order dated 28.5.2003, this Court directed the Superintendent of Police,
Udhagamandalam to consider the complaint made by the petitioner-Company on different dates and proceed in accordance with law.
The Company also filed Original Suit No. 79 of 2002 before the District Munsif Court, Gudalur, for injunction restraining the workers from
stealing the green leaves and for committing other illegal acts. The Company also filed appeal against the said W.P. No. 14117 of 2003, and a
Division Bench of this Court directed the District Munsif, Gudalur to hear and dispose of Interlocutory Application No. 358 of 2002, which was
filed in the said suit. By order dated 7.8.2003, the said I.A. No. 358 of 2002 was also disposed of, and interim injunction was granted by the
District Munsif Court, Gudalur, restraining the workmen from illegal plucking, selling or transporting the green tea leaves or interfering with the
peaceful management of the Estate and the Factory. Certain other reliefs were also granted.
A separate suit was filed by the Union Bank of India in O.S. No. 200 of 1996 claiming Rs. 10,22,82,983.72 against the Company and the suit
was transferred to the Debts Recovery Tribunal, Cochin and in Transfer Application No. 1050 of 1997, by order dated 1.2.2001, the DRT
decreed the suit in favour of the Bank. During the pendency of the suit, a settlement had been entered between the Bank and the Company for
payment of Rs. 11.34 crores by the Company to the Bank and the Company was granted facility of instalment payment in four equal quarterly
instalments. In the order of the DRT, it was also made clear that in default of the payment of instalments, the Recovery Certificate would be issued
for the full decretal amount, less the amounts paid and the Bank would proceed against the Company for recovery of the decree amount in respect
of the schedule mentioned property therein. The appeal preferred before the Debts Recovery Appellate Tribunal was also rejected and O.P. No.
32788 of 2002 before the High Court of Kerala at Ernakulam was also dismissed on 8.10.2003, against which, SLP in SLP No. 23685 of 2003
was preferred before the Supreme Court, wherein, notice was issued. Two properties were proclaimed for sale by the Bank, but the same could
not go through, since no proper offers were received.
In view of the aforesaid situation, since 1998, the Company could not pay the Provident Fund contributions to the Department, both
Employees'' and Employer''s contributions, and the total amount due and payable till 2004 was Rs. 140 lakhs as per the records of the Company.
However, as per the records of the Employees'' Provident Fund Organisation, the total amount due and payable towards Provident Fund as in
2004 was Rs. 2,82,04,451/- and a certificate of recovery has also been issued in respect of this amount. On 3.12.2003, an order of attachment of
immovable properties was also issued by the second respondent-Recovery Officer, Employees'' Provident Fund Organisation, Sub-Regional
Office, Coimbatore, by which, it was ordered to attach the total extent of 326.51 acres of planted land(s) along with other constructions on the
lands for recovery of the aforesaid sum. According to the Company, the value of the land(s) would be approximately Rs. 14 crores as in 2004.
Learned Counsel appearing on behalf of the Company submitted that the attachment with the schedule given in the plaint filed by the Union
Bank of India would show that all the properties mentioned in the schedule of the order of the second respondent-Recovery Office, Employees''
Provident Fund Organisation, are same; on the other hand, according to the learned Counsel appearing on behalf of the workmen, the Employees''
Provident Fund Organisation would have the first charge over the properties and not against the Bank.
On 18.2.2004, the second respondent-Recovery Officer of the EPFO issued a proclamation of auction sale in respect of the land(s) and fixed
19.3.2004 at 12.00 p.m. as the date of sale. At that stage, Writ Petition in W.P. No. 6603 of 2004 was preferred by the Company against the
auction-sale notice, dated 18.2.2004 issued by the EPFO and in view of the interim order of injunction passed therein, the auction-sale could not
take place till date.
In W.P. No. 1362 of 2007 filed on behalf of the workmen, it is stated that the Management of the Company has over several years been
conducting its business in an illegal and unethical manner by not paying the workmen their wages, gratuity, provident fund and other monetary
benefits. There are about 30 prosecutions launched by the EPF and ESI Departments against the Management of the Company, which are pending
before the Judicial Magistrate Courts. There are about 115 workmen, who have filed applications for payment of gratuity and the Controller of
Gratuity has ordered for payment, which is more than Rs. 60 lakhs. Several workmen died of starvation and the families of the deceased workmen
have not been paid the P.F. Contributions paid by the workmen, the gratuity and the other death-cum-retiral benefits. It is further stated that the
amount due to the workmen towards the arrears of wages, provident fund, bonus, gratuity, etc., is Rs. 10,33,76,876/- as on 31.12.2006. The
wages were not paid since December 1999 onwards to the workmen, who have filed petitions before the Payment of Wages Authority, making a
total claim towards arrears of wages of Rs. 7 lakhs in respect of 600 workmen. The gratuity has not been paid since 1993 onwards for more than
500 workmen. So far, 115 claims have been allowed, totalling Rs. 47 lakhs. The Management of the Company claimed to have preferred appeals
against it, but it is stated that no appeal summons or stay orders were received by the workmen till date. Apart from the above facts, the drinking
water/medical facilities/canteen, were not provided to the workmen. The Company has also not paid contributions, both of the workmen and the
Company, since April 1998. The EPF Department has commenced prosecutions vide C.C. Nos. 211/97 to 218/97, CC. Nos. 219/97 to 230/97,
C.C. Nos. 210/97 to 227/97 and C.C. Nos. 198/98 on the file of the local Court at Gudalur. Prayer has also been made to direct the third
respondent-District Collector, Nilgiris, to take steps under the Revenue Recovery Act forthwith for recovery of the workmen''s lawful dues.
In the other Writ Petition in W.P. No. 4237 of 2005 preferred by the Company, it is alleged about the high-handedness attitude of the Nilgiris
District Legal Services Authority, particularly, that of its Chairman and the Secretary. It is stated that against the order dated 7.8.2003 in I.A. No.
358 of 2002 in O.S. No. 79 of 2002 on the file of the District Munsif Court, Gudalur, C.M.A. No. 57 of 2003 was preferred by the parties. The
aforesaid C.M.A. No. 57 of 2003 was finally disposed of by the District Court, Nilgiris, vide judgment dated 29.12.2003, copy of which is
enclosed in the typed set of papers filed along with W.P. No. 4237 of 2005.
It is stated that steps were taken to move the matter before the Lok Adalat, though there was no consent given by the Company, and such
action was against the provisions of Sections 19 and 20 of the Legal Services Authorities Act. It appears that in the meantime, one or other Writ
Petition was preferred by the Company, including W.P. No. 29844 of 2003, challenging the said reference of the matter before the Lok Adalat,
and W.P. No. 29844 of 2003 was dismissed, indicating that the case was only referred before the Lok Adalat for settling the matter. C.R.P.
(NPD). No. 1606 of 2003 was filed by the Company challenging the order dated 26.9.2003 passed in I.A. No. 258 of 2003 in C.M.A. No. 57
of 2003, and the said C.R.P was disposed of on 24.11.2003, directing the disposal of C.M.A. As stated above, C.M.A. was finally disposed of
on 29.12.2003.
The grievance of the Company is that though the suit is pending, and pending suit, I.A. was filed, against which C.M.A. was preferred, which
was finally disposed of as stated above, but the District Judge, in the capacity of the Chairman of the District Legal Services Authority, is trying to
take up the matter in the Lok Adalat and passing different coercive orders and impugned notice, dated 5.1.2005, has been issued by the Secretary
of the Nilgiris District Legal Services Authority, in L.A.O.P. No. 1 of 2005, though the Company has not given any consent u/s 89 of the Civil
Procedure Code.
All the above three Writ Petitions were heard from time to time to find out as to whether the matter could be settled by granting time to the
Company to pay the dues of the workmen. On 24.4.2008, it was observed that the pendency of the Writ Petitions shall not stand in the way of the
Management to pay the Provident Fund dues of its workmen/labourers with the competent authority. On 11.7.2008, an affidavit was filed by the
Company, stating that certain amounts have been deposited towards Employees'' Provident Fund; some of the retired employees have been
provided with gratuity; some of the employees have been provided with advance gratuity and certain more amount is to be deposited by the
Management towards Employees Provident Fund and gratuity is to be paid to certain retired employees.
Learned Counsel appearing on behalf of the Regional Provident Fund Commissioner, Coimbatore, filed an affidavit and produced a chart,
showing the Provident Fund dues from one or other Division/Estate of the Company and also for which Recovery Certificates have been furnished
to the Recovery Officer, and the net outstanding in respect of the Company as of 30.9.2008 was shown as follows:
TN/694A: Upper Prospect Division Rs.12,68,989/-
TN/694B: Pykara Falls Division Rs.34,89,742/-
TN/694C: Lower Prospect Divison Rs.24,38,919/-
TN/694D: Liddlesdale Estate Rs.42,44,813/-
TN/694E: Greenway Divison Rs.17,22,186/-
TN/694F: Liddlesdale Estate Rs.27,35,222/-
TN/694/G: Belevue Division Rs.31,42,970/-
TN/366: Prospect Tea Fac. Rs.31,11,944/-
TN/434: Seaforth Tea Fac. Rs.6,21,585/-
TN/784A: Seaforth Estate Rs.35,60,353/-
TN/784B: Yellamalai Divn Rs.26,69,525/-
Grand Total : Rs.2,90,06,248/-
It is informed that notice was issued to the establishment (the Company) to appear before the Recovery Officer on 6.10.2008, vide letter dated
29.9.2008, pursuant to which Sri. Lalu. T. Bhansali, Director of the Company was directed to appear before the Recovery Officer on 6.10.2008
for accepting the establishment''s request for grant of instalment facility, as the operations of their establishment had just now started and as such,
no manufacturing of tea has taken place, as the factories had been sealed by the Revenue authorities. Subsequently, as seen from the letter dated
10.10.2008 of the Regional PF Commissioner/Recovery Officer, Regional Office, Coimbatore, on 6.10.2008, Shri. Lalu Bhansali, Director of the
Company appeared before the Recovery Officer and in view of the discussions and reasoning''s stated by the Regional Provident Commissioner-
II/Recovery Officer, EPFO, Regional Office, Coimbatore, in the said letter dated 10.10.2008, by virtue of powers vested with him under Sections
8B to 8G of the Employees'' Provident Fund and Miscellaneous Provisions Act, 1952, the request for grant of instalment facility to the Company
was rejected and it is stated in the said letter dated 10.10.2008 that all the other actions stipulated under Sections 8B to 8G of the Employees''
Provident Fund and Miscellaneous Provisions Act, 1952, will follow therewith.
It is seen from the said letter dated 10.10.2008 that a suit had been filed in the local Court, Gudalur and the establishment requested the
Tahsildar of Valparai to open their factory. Their application for grant of term loan for restructuring and as per the Rehabilitation package as per
the Central Government Notification, was pending with their bankers and the Bank was addressed to expedite the same, vide their letter dated
15.9.2008. The establishment was remitting current Provident Fund contributions and a portion of the old dues amounting to Rs. 3 lakhs per month
and the copies of challans for arrears of PF contributions amounting to Rs. 1,48,437/- paid on 3.10.2008, were also furnished. The Recovery
Officer of the EPFO ordered the amount outstanding/amount remitted/balance, as shown below:
M/s. Mahavir Plantations Ltd. (Ooty and Valparai):
Code No. Period of Default Amount Amount Balance Rs.
outstanding Rs. remitted Rs.
TN/ 694A April 98 to August 07 26,12,465.00 13,43,476.00 2,58,989.00
TN/ 694B April 98 to August 07 41,43,061.00 6,53,319.00 34,89,742.00
TN/ 694C April 98 to August 07 25,41,502.00 1,02,583.00 24,38,919.00
TN/ 694D April 98 to August 07 51,28,732.00 8,83,919.00 42,44,813.00
TN/ 694E April 98 to August 07 18,03,786.00 81,599.00 71,22,186.00
TN/ 694F April 98 to August 07 31,70,166.00 4,34,944.00 27,35,222.00
TN/ 694G April 98 to August 07 33,25,005.00 1,82,035.00 31,42,970.00
TN/ 366 April 98 to August 07 33,93,292.00 2,81,348.00 31,11,944.00
TN/ 434 April 98 to August 07 6,93,556.00 71,971.00 6,21,585.00
TN/ 784A April 98 to August 07 46,39,271.00 10,78,918.00 35,60,353.00
TN/ 784B April 98 to August 07 28,80,548.00 2,11,023.00 26,69,525.00
TN/ 435 Dec.98 to Nov.07 7,58,122.00 4,20,997.00 3,37,125.00
TN/ 610 June 98 to Nov.07 1,48,84,852.00 1,07,36,675.00 41,48,177.00
Total 4,99,74,357.00 1,64,82,807.00 3,34,91,550.00
This Court allowed time to the Company to file affidavit giving the time schedule by which it intended to deposit the PF amount dues with the
competent authority and to pay the full gratuity to the rest of the retired employees. The Recovery Officer of the EPFO, Coimbatore was also
allowed time to take decision with regard to the time it intends to allow in favour of the Company to pay the dues.
Though the Company said that various amounts have been deposited and certain amounts were also ordered to deposit, from the report filed
by the District Collector, Udhagamandalam in W.P. No. 1362 of 2007 and the affidavit filed on behalf of the Regional Provident Commissioner-II,
Coimbatore in W.P. No. 6603 of 2004, it appears that inspite of determination of the amount by the competent authority, the Provident Fund,
Gratuity, and other amounts, such as, bonus, arrears of wages, etc., have not been deposited by the Company with the competent authority. In one
or other case, recommendation has already been made for initiating recovery proceedings by way of proclamation of sale, but because of interim
order of injunction in W.P. No. 6603 of 2004, it could not be made.
Learned Senior Counsel appearing on behalf of the Company sought for some more time and was also allowed to file affidavit, giving the time
frame to which the Company intended to deposit the Provident Fund and other dues. Inspite of repeated orders, no such affidavit has been filed. It
further appears that the workmen have filed a petition u/s 33-C(1) of the Industrial Disputes Act, for payment of wages, before the District
Collector, Nilgirs, on 4.1.2005, but it has not been made clear whether any order has been passed thereon.
Having heard the learned Counsel appearing for the parties and taking into consideration the facts as narrated above, the Court is the following
view:
The Chairman/Secretary of a District Legal Services Authority, including the Nilgiris District Legal Services Authority, have no jurisdiction to refer
a matter to Lok Adalat for settlement. If a suit is pending, namely O.S. No. 79 of 2002, only subject to the consent of the parties, u/s 89 of the
C.P.C., it was open for the Court to refer the matter to the Lok Adalat for settlement of the dispute. Hence, the Chairman/Secretary of the Nilgiris
District Legal Services Authority, has no such jurisdiction. Further, in regard to the interim order in the pending suit, a final decision having been
passed by a District Judge in C.M.A. No. 57 of 2003, it was not open for the Chairman/Secretary of the Nilgiris District Legal Services Authority,
to force the parties to move before the Lok Adalat. In this background, this Court not only sets aside the proceedings in L.A.O.P. No. 1 of 2005,
but also the impugned notice dated 5.1.2005 as challenged in W.P. No. 4237 of 2005.
So far as the rest of the two Writ Petitions are concerned, admittedly, the Company has not paid the Provident Fund contributions, both the
Employees'' and the Employer''s, nor paid the total gratuity and other benefits, but also a defaulter in payment of wages, etc., which have not been
disputed by the Company. In this background, if the competent authority, including the Recovery Officer of the EPFO, Coimbatore, has taken
steps for recovery of the amounts and/or any other action taken by the other competent authority for recovery of the gratuity and other dues, it
calls for no interference. The employees being entitled to the Provident Fund, Gratuity, arrears of wages, bonus, etc., and other amounts, if any
due, it is open for the employees to pursue the matter before the competent authority, who is expected to take steps in accordance with law to
recover such dues of the workmen.
In the circumstances and for the reasons mentioned above, we allow W.P. No. 4237 of 2005, filed by the Company against the notice issued
by the Nilgiris District Legal Services Authority and dismiss W.P. No. 6603 of 2004 filed by the Company against the proceedings initiated by the
Recovery Officer, EPFO, Regional Office, Coimbatore, and thereby vacate the interim order of injunction passed therein, and dispose of W.P.
No. 1362 of 2007 filed by the employee on behalf of the workmen, by directing the competent authority to proceed in accordance with law for
recovery of the dues of the workmen, particularly, with regard to the Provident Fund, Gratuity, arrears of wages, bonus, and other dues, if any, to
which one or other employee is entitled to. If the due amounts are not paid within the time by the Company, it will be open for the competent
authority to auction-sale the land(s), for which they have already taken steps earlier, but could not be done because of interim order of injunction,
which has now been vacated, as noted above.
In view of our findings as recorded above, the other pending miscellaneous petitions, including the impleading petition, are closed. No costs.