(Prayer: This Writ Petition Is Filed Under Articles 226 & 227 Of Constitution Of India Praying To Quash The Order Dt. 3.07.2012, Produced Vide Ann-E And Direct The Respondent To Deposit The Damages Due As Per The Order Of The Authority; ETC.)
1. Petitioner Provident Fund Organisation having covered the respondent - Establishment, a partnership firm, under The Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for short "the Act ') during the year 1985, the said Establishment was closed as on 31.12.2002 and its constitution changed with the change in partners, -while the Managing Partner representing the firm is reported to have died on 9.6.2013.
2. Petitioner issued a notice dated 2.12.2004 - Annexure-B to show cause as to why an order under Section 7Q of the Act should not be made for recovery of interest on delayed payment of contributions during the period from 1985 - 86 upto 2002 - 2003.
3. Petitioner issued yet another notice dated 30.9.2004 calling upon the respondent to show cause as to why damages for belated remittance as provided under Section 14B of the Act should not be recovered. Respondent - Establishment is said to have caused a reply dated 9.11.2004 Annexure-R3, to the statement of objections, denying the claim for damages as also initiation of proceeding after a lapse of 19 years from 1985. In addition, it was contended thai the unregistered partnership firm had changed its constitution on several occasions from 1985 onwards, and that the last of the change occurred on 25.2.2002 with the induction of the Managing partner. The delay of more than 20 years in initiating action under Section 14B of the Act, it was contended, in the absence of relevant material over the dates of remittance, of contribution, tantamounted to irretrievable prejudice. The Regional Provident Fund Commissioner, without, adverting to the contentions urged in the objections to the show cause notice, much less assigning reasons or findings over the inordinate delay in initiating the proceeding, by order dated 2.12.2004 Annexure-C determined ^52,29,779/- as damages delayed remittance of contribution for the period from March 1985-1986 to 2002-2003 under Section 14B of the Act. That order when called in question in an appeal before the EPF Appellate Tribunal at Delhi, by order dated 8.2.2005, the respondent was directed to deposit 50% of the amount, which was challenged in W.P.No.9720/2005 and on its dismissal was carried in W.A.No.2519/2005 whence Division Bench by order dated 7.4.2005 directed deposit of 50% of the amount and stayed the recovery of the balance amount while EPF Tribunal was directed to enteitain the appeal and dispose of the same on merits.
4. There afterward s, the EPF Tribunal having dismissed the appeal by order dated 16.12.2010 without hearing the appellant led to filing an application to restore the appeal. That application when rejected the order was called in question in W.P.No.39445/2011, whence the learned Single Judge by order dated 18.1.2012 Annexure- A, allowed the petition, set aside the orders of the Appellate Tribunal and remitted the proceeding for consideration afresh.
5. On remand, the Appellate Tribunal by order dated 3.7.2012 in ATA No.91(6)2005, allowed the appeal and set aside the order of the Regional Provident Fund Commissioner, hence, this petition by the Regional Provident Fund Commissioner.
6. Petition is opposed by filing statement of objections inter alia supporting the order of the Appellate Tribunal as being well merited, fully, justified and not calling for interference, in addition to placing on record, the previous orders of this Court as also written arguments filed before the Appellate Tribunal.
7. Learned Counsel lor the petitioner submits that although Regional Provident Fund Commissioner did not assign reasons or findings over the delay in initiating the proceeding, nevertheless, Section 14B of the Act does not provide a period of limitation to exercise jurisdiction to levy and recovery damages for delay in remitting contributions. Learned Counsel submits the fact that there was delay in payment of contributions not being in dispute, it was axiomatic that the respondent be saddled with the liability to pay not only interest on the delayed payment but also damages as envisaged under Section 14-B of the Act read with paragraph 32-A of the EPF Scheme, 1952.
8. Per contra, Sri.Somashekar, learned Counsel for the respondent submits that,
(a) the inordinate delay in initiating proceedings invoking Section 14-B cf the Act hacs resulted in irretrievable prejudice to the petitioner;
(b) the Regional Provident Fund Commissioner failed to address the respondent's contentions advanced in the repfy to the show cause notice and in the absence of reasons and findings, the order of the Commissioner has occasioned denial of justice; and
(c) there is no quantification of the damages alleged to be suffered by the Regional Provident Fund Commissioner organization.
Learned Counsel places reliance upon the decisions of the Apex Court in Hindustan Steel Limited vs. State of Orissa (AIR 1970 SC 253) and the following decisions of the High Courts:
(1) Orissa Forest Development Corporation and another And Regional P.F. Commissioner, Orissa, Sub- Regional Office, Rourkela (1995 I LLJ 936) (High Court of Orissa);
(2) Bharat Metal Iron Works And Regional Provident Fund Commissioner (1997 III LLJ 437) (High Court of Rajasthan) and
(3) Snap Tap Machine Accessories (ndia)(P)Lta.; And Regional Provident Fund Commissioner (1998 II LLJ 848) ; (High Court of Madras).
9. Having heard the learned Counsel for the parties, perused the pleadings, examined the orders impugned, the question for decision making is,
" Whether in the facts and circumstances, the order dated 3.7.2012 in ATA 91/6/2005/ EPF A Tribunal is just, legal and proper?"
10. Facts not in dispute are that the show cause notice of the year 2004 issued to the respondent invoking Section 14B of the Act to levy and recover damages for delay in payment of contribution was responded to by the respondent contending inordinate delay had caused irretrievable prejudice. Even according to the learned Counsel for the petitioner, contributions of the year 1985 were remitted in the year 1989. If that is so, then the respondent authorities should have invoked Section 14B of the Act as early as in the year 1989. Therefore invoking the jurisdiction in the year 2004 much after the establishment was closed and all earlier partners had resigned from the firm and new partners inducted, it cannot but be said that the respondent was justified in contending that the delay in initiating proceeding under Section 14B has caused irretrievable preju dice.
11. In Hindusthan Times Ltd., Vs Union of India and others (1998 II SCC 242) at paragraph 29 the Apex Court opined that it is possible for the employer to claim the benefit of irretrievable prejudice in case of demand for damages is made after several years. It is also stated that there are catena of decisions of the Apex Court on the point that if in a statute the period of limitation is not fixed for doing a particular act, in that event, action should be initiated within a reasonable time and what is, reasonable time it is said, depends upon the facts and circumstances of each case.
12. In the facts and circumstances of this case, there being no plausible explanation for the inordinate delay in initiating proceeding under Section 14B of the Act, the Appellate Tribunal, justifiably held that the petitioner failed to invoke 14B of the Act, at the earliest to levy and recovery damages.
13. The Appellate Tribunal having extracted the observations of the Apex Court in Hindusthan Steel Limited (supra ), that in the event of failure to perform a statutory obligation, levy of penalty is a matter of discretion of the authority to be exercised judicially and on consideration of relevant circumstances and that even if a minimum penalty is prescribed, the authority competent to impose penalty will be justified in refusing to impose penalty when there is a technical or venial breach of the provisions of the Act.
14. In Employees State Insurance Corporation Vs HMT (2008 3 SCC 35), the Apex Court having considered the interpretation and application of Section 85-B of Employees' State Insurance Act, 1948 and Regulation 31-C Employees' State Insurance (General) Regulations, 1950, pari materia with Section 14B of the Act and paragraphs 32A and 32B of the Employees Provident Fund Scheme, 1952 (for short 'EPF Scheme'), observed that a penal provision should be construed strictly and only because a provision has been made for levy of penalty, the same by itself would not lead to conclusion that penalty must be levied in all situations and further that Section 85 B of the Act does not indicate an intention of the legislature in that regard. In addition, it was observed that when a discretionary jurisdiction is conferred on the statutory authority to levy penal damages by reason of an enabling provision (paragraph 31-C of Regulations), the same cannot be construed as imperative. It was lastly observed that the existence of mens rea or actus reus in contravening a statutory provision must also be held to be necessary ingredient for levy of damages and/or quantum thereof.
15. Applying the aforesaid principles to the facts of this case, it is needless to state that the Regional Provident Fund Commissioner, while exercising jurisdiction under Section 14B of the act read with paragraphs 32A & 32B of the EPF Scheme to, levy damages by way of penalty, for breach of the statutory obligation of the respondent - employer to pay the contributions -within time, fell in error in not exercising that discretion.
16. Sri.Somashekar, learned Counsel for the respondent is correct in his submission that when a statute does not prescribe a period of limitation for initiation of action then such action must be initiated within a reasonable time.
17. Orissa High Court in Orissa Forest Development Corporation's case (supra2), having regard to Section 14B of the Act not providing a period of limitation to initiate proceeding for levy and recovery of damages, nevertheless, in the light of several decisions of the Apex Court that power should be exercised within a reasonable time, quashed the order levying damages by way of penalty.
18. So also in Bharat Metal iron Works's case (supra3), High Court of Rajasthan took a similar view to set aside the order levying damages, when the proceeding was initiated after a delay of 16 years.
19. In my considered opinion, in the facts of this case the unexplained delay between 5 to 20 years by the Regional Provident Fund Commissioner in exercising jurisdiction under Section 14B of the Act without a plausible explanation, when considered, the Appellate TribunaJ, justifiably quashed the order by allowing the appeal.
20. If regard is had to the principles noticed supra, and applying the same the facts of this case, it is needless to state that Regional Provident Fund Commissioner failed to initiate the proceeding invoking the jurisdiction under Section 14-B of the Act at the earliest, but had done so only aft
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er a delay between 5 to 20 years, hence fatal to the proceeding. 21. In Snap Tap Machine Accessories (India) (P) Ltd's case (supra4), the High Court of Madras considering the exercise of jurisdiction to levy damages under Section 14B of the Act, held that without actual assessment in the mailer of determination of loss, the Regional Provident Fund Commissioner cannot levy penaltv and in the facts of that case there being no application of mind and assessment or determination of loss sustained by the Organisation or department, set aside the order levying damages. 22. The order of the Regional Commissioner for Provident Fund does not disclose, application of mind much less an assessment over the determination of the loss occasioned to the organization due to delay in the remittance of contribution by the respondent - establishment. On that ground too since the order was not sustainable, hence its interference by Appellate Tribunal cannot be found fault with. 23. The order of the Appellate Authority allowing the appeal to set aside the order of the Regional Provident Fund Commissioner levying damages, cannot be said to be either illegal or arbitrary sc as to call for interference. Petition devoid of merit, is dismissed.