KERALA v. M/S. TAGORE MOUNT SCHOOL

SR GP SRI BIMAL K NATH THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA NO. 1284 OF 2023 Amit Rawal, J. 2 JUDGMENT

1. The present intra court appeal is directed against the judgment of the Single Bench whereby the order of the Tribunal established under the Employees Provident Funds and Miscellaneous Provisions Act, 1952, has been upheld.

2. Succinctly the facts in brief are that the respondent is an educational institution and till 31.03.1999 had employees less than twenty (20) and therefore not covered under the provisions of Employees Provident Act, 1952 (hereinafter called ‘the Act’ for short). On 01.04.1999 the employees on the roll of the school were more than twenty (20) ie., twenty five (25). It was incumbent upon the school to inform the Employees Provident Fund Commissioner or apply for registration and allotment of code number. Having not done so, the Enforcement Director in the month of January, 2000, inspected the premises of school, examined the record and on the basis of that, a notice was issued on 13.11.2000 informing the school regarding the WA NO. 1284 OF 2023 3 coverage under the provisions with effect from 01.04.1999.

3. In view of the default, assessment proceedings as per Section 7A of 1952 Act were initiated. School engaged the services of the lawyer namely Sri.Sreekumar, who appeared and had placed on record certain documents. The enquiry was adjourned from time to time but on 28.09.2001, it was found that on the strength of the records produced by the employer, inspection of the establishment on 07.06.2001 and the admission of the school management regarding the coverage with effect from 01.04.1999, liability on the school was fastened of non-payment of the contribution from April, 1999 to September, 2000 and demand of Rs.5,25,649.05 (Rupees five lakhs twenty five lakhs six hundred and forty nine thousand and five paisa only) was raised. Aggrieved of the same, appeal Ext.P4 was preferred alleging that code number was allotted only on 08.11.2000, therefore the liability for the period before that date would not exist and the coverage would be only from that date onwards. The said appeal was accepted by the Tribunal vide order dated 08.12.2009 Ext.P6 whereby the period WA NO. 1284 OF 2023 4

01.04.1999 to 01.11.2001 was excluded.

4. Aforesaid order was assailed by the Employees Provident Fund Commissioner before the Single Bench, which as noticed above, resulted into dismissal.

5. Learned counsel appearing on behalf of the appellant/petitioner contended that the sole genesis of the judgment rendered by the Single Bench had been on the finding of the Tribunal based upon the ratio decidendi culled out by the Supreme Court in District Exhibitors Association, Muzaffarnagar and Others v. Union of India and Others [1991 KHC 961]. In fact it would not be applicable for, it was a case of applicability of the scheme to the cinema workers as well as the applicability of Cinema Theatre Workers Act. Supreme Court noticed that the scheme could not have given the benefit to the employees who were ceased to be cinema workers. However, in this case the assessment order was passed on a candid admission and nothing contrary was submitted or raised in the grounds to form a different opinion. Rather in the counter WA NO. 1284 OF 2023 5 affidavit to the said grounds of appeal, it was categorically pleaded that the establishment had submitted a return in Form- 9 which showed that the number of employees as on

01.04.1999 were 25 which was marked as Ext.R2 therein. The said document has also escaped the notice of Single Bench resulting in to a fallacy. The Tribunal ought not to have remanded the matter to the Assessment Officer for excluding the period in view of the facts and submissions made hereinabove.

6. On the other hand, Sri.Xavior, learned counsel representing the establishment supported the order of the Tribunal as well as the Single Bench and submitted that the finding of fact cannot be interfered while exercising the powers under Article 226 of the Constitution of India and also intra court appeal for, appellant has not been enable to place on record any sufficient material to form a different opinion. Concededly, the coverage notice is dated 08.11.2001 and therefore, the establishment/school was liable to be covered under the provisions of Act on the date onwards. In other WA NO. 1284 OF 2023 6 words, the Tribunal’s order excluding the applicability of provisions of the Act from 01.04.1999 to 1.11.2001, is perfectly legal and justified and do not call for a different opinion.

7. We have heard the learned counsel for the parties and appraised the paper book.

8. For assigning our reasons, it would be appropriate to extract the relevant portion of the order of the Assessing Officer where there has been a categoric admission made on behalf of the representative appearing on behalf of the management. The same reads as under: “Sri.S. Sreekumar, Advocate appeared and requested for adjournment. The employer was directed to produce the relevant records and the enquiry was adjourned to 9.8.01 on which date Sri Manu Roy, Advocate appeared and further sought a months time for production of records. Although sufficient time was given to the employer to represent his case and produce the records before the 7A authority on two hearings even then employer has failed to participate the enquiry effectively. However a final chance was afforded and the enquiry was adjourned to 28.9.01. Sri.R.Venkata Ramanan, Principal appeared and admitted that the dues from the date of coverage ie., 1.4.99 onwards were outstanding. He produced particulars of employee's and WA NO. 1284 OF 2023 7 salary/wages paid during the period from 4/99 to 9/01. On the strength of the records produced by the Employer/his representative and the reports of the Enforcement Officer who inspected the establishment on

7.6.01 the dues outstanding under various heads of accounts have been worked out as indicated separately. As the interest of the beneficiaries will be at stake if the arrears are allowed to be accumulated, I am constrained to determine the dues on the strength of the records available in this office and on the reports of the Enforcement officer which are based on the records/ registers of the establishment.”

9. The grounds of appeal taken before the Tribunal do not reveal any challenge to the said admission recorded by the Assessing Officer. On the contrary, appellant who was arrayed as respondent in the appeal, in ground No.C of the counter affidavit placed reliance on Ext.R2 Form No.9 submitted on behalf of the establishment showed the number of the employees as on 01.04.1999 to be twenty five (25). The provisions of 1952 Act would apply to any establishment when the number of employees exceed more than twenty (20). Thus for all intends and purposes the order of the Enforcement WA NO. 1284 OF 2023 8 Officer and the Assessment Officer based upon the inspection of the books of the establishment found that the employees as on

01.04.1999 were more than twenty (20), thus they were covered under the provisions of the Act. The plea that the notice of coverage was given subsequently in 2001 would in such circumstances pale into insignificance. Tribunal and Single Bench in our considered view have not taken into consideration all these factors and particularly the ratio culled out in the judgment of the Supreme Court where it was a case of applicability of scheme to the cinema workers who had been on the rolls on a particular date.

11. For the reason aforementioned, we are of the view that the order of the Tribunal and Single Bench cannot be permitted to sustain and are hereby set aside. Order of the Assessing Authority is made absolute. Appellant shall raise the demand to the respondent establishment and the respondent shall be at liberty to pay either in lump-sum or in four equal monthly instalments commencing from 01.02.2024. In case of default of any of instalments the appellant shall be at liberty to WA NO. 1284 OF 2023 9 take appropriate steps to recover the amount in accordance with law. Writ appeal stands allowed. Sd/- AMIT RAWAL JUDGE Sd/- C.S. SUDHA JUDGE