V.K. Johny vs The State of Kerala

K. Vinod Chandran, J.—Appellant herein; Regional Provident Fund Commissioner, Employees'' Provident Fund Organization, challenges the judgment of the learned Single Judge by which the Tribunal''s order setting aside the proceedings u/s 7A of the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as "the Act") was confirmed.

The brief facts necessary for the disposal of the writ appeal is that the respondent-employer was running cashew factories in many parts of the State and by Ext.P1, based on an inspection, the trainees employed in such factories were sought to be covered under the Employees'' Provident Funds and Miscellaneous Provisions Act. By Ext.P1 the Managing Director of the respondent-Corporation was directed to satisfy the dues in respect of the trainees, failing which proceedings u/s 7A(1)(b) of the Act was threatened. It is the contention of the learned counsel that an appeal was filed against Ext.P1, which was later withdrawn, therefore abandoning such challenge. Hence the respondent- Corporation cannot be permitted to challenge the subsequent orders passed u/s 7A(1)(b) of the Act, viz.Exts.P3 and P4, which is only a consequence of Ext.P1. Essentially the contention of the appellant is that Ext.P1 is an order under sub-clause(a) of Section 7A and Exts.P2 and P3 consequential orders computing the contributions for the period 10/2007 to 4/2009 and 5/2009 to 10/2009 respectively.

However, we notice that after passing of Ext.P1 order, the respondent-Corporation was before this Court and Ext.P2 judgment was passed in the writ petition specifically finding that the liability to pay contribution will be crystallized only after a final order is passed u/s 7A. Ext.P7 which was challenged in the said writ petition is produced as Ext.P1 in the instant writ petition. The learned Single Judge also noticed that if a final order is passed pursuant to enquiry u/s 7A as contemplated in Ext.P7( read Ext.P1 in the instant case), the authority may do so and the respondent- Corporation may take proceedings against such order. The appellant was a party in the said writ petition and was heard before orders were passed. There is no challenge against the judgment produced as Ext.P2. The appellant cannot now turn around and contend that an appeal filed against Ext.P1 was already withdrawn, therefore the respondent is estopped from challenging the consequential orders of computation.

Looking at the provisions of the Act, sub-clause (a) and (b) of Section 7A(1) speaks of adjudication of a dispute arising from the applicability of the Act and determination of the amounts due under the provisions of the Act. Section 7.1 also provides inter alia for an appeal from an order under sub- section (1) of Section 7A. However, it cannot be understood that there has to be two separate orders under sub-clause (a) and (b). On a reading of Ext.P1 also, there was a prima facie finding entered and the Managing Director was directed to remit the dues on failure of which an enquiry u/s 7A(1)(b) was contemplated. It is also pertinent that Ext.P3, which is now styled as a consequential order elaborately considers the issue whether trainees are ''employees'' as defined under the Act. Ext.P4 order for the subsequent period also refers only to the findings in Ext.P3 and not Ext.P1. Hence the issue decided under clause (a) and (b) both were up for consideration in the appeal filed against Exts.P3 and P4 orders.

We could only take it that both the appellant and the respondent-Corporation understood Ext.P1 as a show cause notice, especially in the light of the appellant having not challenged Ext.P2 judgment of the learned Single Judge. The further contention with respect to the trainees being covered under the Act, we are afraid, was considered by the last fact finding authority being the Tribunal constituted under the Act. This Court sitting in the jurisdiction conferred under Article 227 cannot go into the facts and come to another finding on the facts; however reasonable that may be. In such circumstances, we are of the opinion that the learned single Judge has rightly refused to exercise the discretionary jurisdiction conferred under Article 226 of the Constitution of India; nor can it be said that this is a fit case where the supervisory jurisdiction under Article 227 can be invoked.

This writ appeal is accordingly dismissed. No costs.