Kerala High Court
Lolamol Moters vs The Employees Provident Fund Appellate ...
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 2ND DAY OF DECEMBER 2014/11TH AGRAHAYANA, 1936
WP(C).No. 5747 of 2012 (P)
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PETITIONER:
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LOLAMOL MOTERS, MAYYANAD, KOLLAM,
REPRESENTED BY ITS MANAGING PARTNER
D.GARRY DAS, S/O.DHARMADAS,
RESIDING AT REMANIKA, MAYYANAD P.O.,
KOLLAM - 691 303.
BY ADVS.SRI.B.MOHANLAL
SRI.T.PRASAD
SRI.SAIJU S.
RESPONDENT(S):
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1. THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL,
(MINISTRY OF LABOUR AND EMPLOYMENT)
CORE-2, 4THFLOOR, SCOPE MINAR,
LAKSHMI NAGAR DISTRICT CENTRE,
DELHI - 110 092, REPRESENTED BY ITS REGISTRAR.
2. THE ASSISTANT PROVIDENT FUND COMMISSIONER,
EMPLOYEES PROVIDENT FUND, PARAMESWARA NAGAR,
OPPOSITE ARCHANA ARADHANA THEATRE, KOLLAM - 691 001.
3. THE RECOVERY OFFICER,
EMPLOYEES PROVIDENT FUND, PARAMESWAR NAGAR,
OPPOSITE ARCHANA ARADHANA THEATRE, KOLLAM - 691 001.
BY SRI.V.V.SURESH,SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 02-12-2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
mbr/
WP(C).No. 5747 of 2012 (P)
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APPENDIX
PETITIONER(S) EXHIBITS:
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EXT.P-1 THE TRUE COPY OF THE ORDER NO.KR-KLM/22157/PD/09-10/5426
DATED 23.12.2010 ISSUED BY THE 2ND RESPONDENT.
EXT.P-2 THE TRUE COPY OF THE ORDER DATED 14.06.2011 IN ATA
NO.412(7) 2010 ISSUED BY THE 1ST RESPONDENT.
EXT.P-3 THE TRUE COPY OF THE ORDER NO.KR/KLM/22157/PD/2010-11
DATED 05.09.2011 ISSUED BY THE 2ND RESPONDENT.
EXT.P-4 THE TRUE COPY OF THE ORDER NO.KR/KLM/22157/PD/2010-11/3519
DATED 27/10/2011 ISSUED BY THE 2ND RESPONDENT.
RESPONDENTS' EXHIBITS: - NIL
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/TRUE COPY/
P.S. TO JUDGE
mbr/
K. Vinod Chandran, J.
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W.P.(C)No.5747 of 2012
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Dated this the 2nd day of December, 2014.
JUDGMENT
1. Petitioner is aggrieved with Ext.P2 order of the Employees' Provident Fund Appellate Tribunal in ATA 412(7)/2010 dated 14.6.2011. Admittedly, the appeal was filed against an order under Section 14B of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952. However, the said order passed by the original authority, which was the subject-matter of the appeal, has not been produced herein. It is not clear as to when 7A enquiry under the Act was initiated and order passed therein. On a reading of Ext.P4 order passed consequent to Ext.P3, it is evident that, the damages levied was for the period 5/2002 to 2/2009. Obviously, the assessment under Section 7A was completed for the aforesaid periods and as a consequence of the delay in contributions occasioned, an order was passed on 2.3.2010 levying damages under Section 14B amounting W.P.(C)No.5747 of 2012 -:2:- to Rs.5,59,590/- and interest under Section 7Q amounting to Rs.2,18,337/-. It is this order which was challenged before the appellate authority.
2. But for the fact that the petitioner asserts financial difficulties, the petitioner does not seem to have been produced any order before the appellate authority to substantiate such claim. It is also not clear as to whether any mitigation with respect to the financial difficulties was sought for before the original authority, when notice was issued under Section 14B. The objections filed therein and the order itself have not been produced in the above original petition. Hence, this Court is disabled to look into the same.
3. Going by the appellate order, learned counsel for the petitioner would submit that, it clearly indicates that, there was no arrears when the proceedings started. On a reading of paragraph 8, what is discernible is that, the petitioner had admitted that delay was occasioned in paying contributions. The said delay presumably had W.P.(C)No.5747 of 2012 -:3:- resulted in Section 7A proceedings being initiated. The delay in payment of contributions led to assessment under Section 7A and consequently the statutory damages and interest were sought to be incurred by a subsequent notice. The finding of the Tribunal that there are no arrears can only be with respect to the defaulted contributions, which were occurred under Section 7A. The petitioner would have paid up the entire contributions as assessed by the authority. However, the damages is with respect to the delay caused which is levied under Section 14B and interest is automatic under Section 7Q.
4. The reliance placed by the counsel on the decision of this Court in Regional Provident Fund Commissioner v. Harrisons Malayalam Ltd. reported in (2013(3) KLT 790) does not at all come to the aid of the petitioner. True, the financial difficulties were held to be sufficient reason to reduce the damages levied or to waive it as such. As was indicated earlier, the petitioner's contentions before the W.P.(C)No.5747 of 2012 -:4:- original authority is not placed before this Court. The appellate authority's order would disclose that, no substantial grounds were raised or materials placed before the authority to substantiate the grounds of mitigation on account of financial hardship. In such circumstances this Court is not inclined to interfere with Ext.P2 order.
5. It is also to be noticed that Ext.P2 order was passed on 14.6.2011 and the petitioner did not choose to challenge it within a reasonable time. Only when the said proceedings culminated in Ext.P4 recovery, the petitioner thought it fit to challenge the order and consequential computation made as per Ext.P4. With respect to the amount demanded as per Section 7Q, it is trite that the same is not appealable as held by the Supreme Court in Arcot Textile Mills Ltd. v. Regional Provident Fund Commissioner reported in (A.I.R. 2014 SC 295). In such circumstances, there could be no interference caused to the orders issued under Sections 14B and 7Q. W.P.(C)No.5747 of 2012 -:5:-
6. However, it is pointed out by the learned counsel for the petitioner that the rate of damages has been substantially amended in the Employees Provident Fund Scheme, 1952. Section 32, as it existed prior to amendment, specify rate of 37% to be applied for default beyond six months. The scheme has been amended and Section 32A, as it stands now, substituted by GSR 521 dated 16.8.1991 (w.e.f.1.9.1991) provides for 25% of arrears per annum for a period of default exceeding six months. However, looking at Ext.P4, despite the direction of the Appellate Tribunal, to compute interest at the rate of 37%, noticing the amendment, the officer has computed the interest only at 20%. Hence, no interference can be caused and the petition is devoid of merit. The amounts credited shall be accounted and the respondent authority shall issue a statement of the dues, as on today, within a period of two weeks from today.
7. Considering the confined prayer made for instalments, it is directed that the recovery, if not already concluded, shall be kept in abeyance W.P.(C)No.5747 of 2012 -:6:- on condition of the petitioner settling the entire loan in ten equal monthly instalments. The petitioner shall produce a certified copy of this judgment within two weeks of its receipt. The respondent organization shall quantify the dues as on 30.12.2014 and issue a statement of accounts by registered post, in accordance with which the instalments shall be paid. The 1st instalment shall be paid on or before 5.1.2015 and thereafter; the due date of instalments falling on the 5th of each succeeding month. If default is committed in two consecutive instalments, then the recovery proceedings shall revive and continue.
The writ petition stands disposed of as above. No costs.
K. Vinod Chandran, Judge.
sl.