Jharkhand High Court
M/S Lemos Cements Limited vs Director (Recover) Employees on 21 September, 2012
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 1731 of 2006
M/s Lemos Cements Ltd. Ranchi ... ... Petitioner
-V e r s u s-
The Regional Provident Fund
Commissioner-II, Ranchi ... Respondents.
With
W.P.(C) No. 5614 of 2008
M/s Lemos Cements Ltd. Ranchi ... ... Petitioner
-V e r s u s-
Director(Recover) Employees Provident Fund
Organisation Headquarters Officer, New Delhi... Respondents.
...
CORAM: - HON'BLE MR. JUSTICE APARESH KUMAR SINGH.
...
For the Petitioner : - Mr. Sudarshan Srivastav, Advocate.
For the Respondents : - Mr. P. P. N. Roy, Sr. Adv.
...
I. A. No. 3259 of 2006(in W.P.(C) No. 1731 of 2006)
I. A. No. 2765 of 2010 (in W.P.(C) No. 5614 of 2008)
13/21.09.2012W. P. (C) No. 1731 of 2006 has been preferred for quashing the order dated 31.05.2005 passed by the Respondent No. 2, the Regional Provident Fund, Commissioner-II, Ranchi whereby according to the petitioner, respondent has refused to review the order passed in exercise of power under Section 14B & 7Q of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 on the ground that there is no provision for review. The petitioner has also prayed for directing the respondent not to take any coercive steps till disposal of Appeal No. 441 of 2003.
W. P. (C) No. 5614 of 2008 has been preferred by the same petitioner for assailing the letter dated 26.09.2008 issued by the Respondent No. 2, the Regional Provident Fund, Commissioner-II, Ranchi whereby the petitioner has been asked to deposit a sum of Rs. 46,35,391/- towards the interest under Section 7Q of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 and for further direction to release the bank accounts of the petitioner.
According to the petitioner, the petitioner firm was alloted code no. BR/16 by the respondent-EPF Organization. It is an Industrial Unit engaged in manufacturing and selling cement located at Khalari. It is stated by the petitioner that order dated 28.01.2004 has been passed by the respondent no. 2 in exercise of power under Section 14B & 7Q of the Act for the period of 1/93 to 9/93 and an amount of Rs. 76,05,930/- besides interest under Section 7Q of the Act was assessed. The petitioner requested by filing an application to review of the said order, but the said application was refused, which is impugned in the first writ petition. In the second writ petition, the petitioner came before this Court with a plea that during the pendency of the first writ petition, in which respondents were directed to file counter affidavit and further restrained from taking any coercive steps, letter dated 26.09.2008 has been passed. The contention of the petitioner is that he had made a request before Director (Recovery) for giving facility of installment in order to liquidate the outstanding dues subject to the terms and conditions, whereupon the Director (Recovery) has directed the petitioner to deposit the outstanding dues in 36 installments @ Rs. Six Lakhs per installment in respect of the entire demand. It is also submitted on behalf of the petitioner that the petitioner establishment is a sick unit under BIFR so it was represented on behalf of the petitioner before the CBT through the Central Provident Fund Commissioner for waiver of the damages imposed under Section 14B of the Act.
The respondents have appeared and contested the claim of the petitioner and justified the issuance of notice by way of Annexure-A to the counter affidavit in W. P. (C) No. 5614 of 2008. It is submitted that the demand of damages under Section 14B of the Act has been passed after due notice and hearing to the petitioner assessing a sum of Rs. 1,04,99,857.00/- under Section 14B and 7Q of the Act, 1952 and further interest under Section 7Q shall continue to accrue from due date till the date of deposit.
Learned counsel for the petitioner, during the course of the proceeding of this application, vehemently submitted that the petitioner has paid substantial amount of money and in support thereof the supplementary affidavit has been filed on 27.08.2012. In the said supplementary affidavit documents (Annexure-4) showing details of EPF amount, which has been paid by the petitioner against the entire dues i.e. Rs. 2,10,13,854.79/- has been annexed. Since, the petitioner insisted that he has paid substantial amount of money against the demand raised and the respondents have not considered it properly before issuing the impugned demand by letter dated 28.08.2012, the petitioner was allowed to approach the Regional Office of Employment Provident Fund Organisation with all supporting documents for verification and the reconciliation of the accounts within stipulated period. It was indicated that parties would file their necessary affidavits after having conducted the exercised for reconciliation showing their respective stands.
Petitioner has filed supplementary affidavit on 13.09.2012 in which it has been stated that during the course of the exercise, officials of the department were shown all the entries in Annexure-4 to the supplementary affidavit dated 27.08.2012, which have been admitted except a sum of Rs. 13, 28,723/- and Rs. 75,610/-. These two figures, according to the petitioner, the department is not ready to accept unless supported with its original documents and the petitioner intimated the department that the office premises is under seal. It is submitted in para-6 that an amount of Rs. 2,93,108/- and Rs. 2,75,000/- has been shown as deposit in the official record of the department. However, at para-9, it is stated that after two sessions of reconciliation a total sum of Rs. 1,99,02,629.79/- has been admitted by the respondents as per their record.
The respondent-Organization has also filed a supplementary counter affidavit on 20.09.2012 pursuant to the said exercise in which they have enclosed a chart at para-7 to the supplementary counter affidavit showing the details of the payments under different heads of demand raised under Section 7A, 7Q and 14B. According to the respondents, for different periods, the total demand against the petitioner is Rs. 3,02,94,662.00/-. It is also indicated in the said chart that the total deposit made by the petitioner is Rs. 1,93,17,207.00/-. Therefore, as per the respondents, it shows that balance of Rs. 1,09,77,455.00/- is still outstanding against the petitioner. At para-8, it has also been indicated that the figures of Rs. 13,28,723/- and Rs. 75,610/-, as claimed to be deposited by the petitioner, have not been reconciled due to unavailability of the records in the office. Accordingly, as per the respondents total outstanding dues against the petitioner was Rs. 3,02,94,662.00/- against which petitioner has deposited Rs. 1,93,17,207.00/-.
Learned counsel for the petitioner submits that outstanding amount of Rs. 1,09,77,455.00/- shown as per the affidavit of the respondents after reconciliation exercise is not correct as the petitioner has paid further installments against the demand raised under Section 14B of the Act, 1952 which might not have been adjusted. However, for the aforesaid payment the petitioner is not able to substantiate it through any documentary evidence as according to the petitioner, the same are available in his office, which could not be accessed because offices are sealed in connection with other cases.
Learned counsel for the petitioner also submitted that the order imposing damage under Section 14B has been passed without giving him proper opportunity of hearing or show cause. However, from perusal of Annexure-A to the counter affidavit of the respondents filed in W. P.(C) No. 5614 of 2008, it appears that the said order has been passed after due notices to the employer and after giving sufficient opportunity to the establishment, but it avoided to produce the record in support of its defence, thereafter an order under Section 14B has been passed awarding damages and interest of Rs. 1,04,99,857.00/- under Section 14B and 7Q of the Act. It further appears that in first writ petition, the contention of the petitioner is that the order rejecting the review dated 31.05.2005 is arbitrary and not proper in the eyes of law. It is seriously contested on the part of the respondents and according to them there is no provision to review of the order under Section 14B of the Act, 1952, which has been indicated in the impugned order rather such an order can be appealed against under Section 7 I of the Act.
From the aforesaid facts, therefore, it appears that the amount of Rs. 1,09,77,455.00/- is still outstanding against the petitioner and petitioner was not able to show any cogent proof or documentary evidence during the course of reconciliation. The issue surrounding the aforesaid controversy requires determination of question of facts after going into the merit of the contentions raised by the rival parties. Moreover, the order dated 31.05.2005 rejecting the application of review is an appealable order and there is provision of appeal under Section 7 (I) of the Act, 1952 where the aggrieved establishment has all the opportunity to raise the question of facts as well as of law with all supporting documents, which can be considered by the Appellate Authority in exercise of the appellate power while considering the correctness of the demand. However, this Court in exercise of power of judicial review is only required to see whether the decision making process is proper or not and not to decide correctness of the demand in the nature of an appeal. In the circumstances, this Court refrains from entering into the merit of the dispute which involves determination of question of facts involving liability of petitioner's establishment to pay a sum of Rs. 1,09,77,455.00/- against the demand raised under the Act in exercise of power under Sections 7A, 7Q and 14B of the Act.
However, it will open to the petitioner to approach Appellate Forum under relevant provision of the Act, 1952.
It is submitted on behalf of the petitioner that the appeal itself may be grossly delayed because of the pendency of the writ petition.
In that view of the matter, it is observed that if an appeal is preferred before the Appellate Authority, it shall consider the issue of delay sympathetically in view of the fact that the petitioner was pursuing his remedy before this Court through the instant writ petitions.
This writ petition is, therefore, disposed of with the aforesaid liberty.
I. A. No. 3259 of 2006 and I. A. No. 2765 of 2010 stand disposed of.
(Aparesh Kumar Singh, J.) Kamlesh/