Kerala High Court
Employees Provident Fund Organisation vs Bpl Telecom Pvt Ltd on 15 September, 2020
Author: T.R.Ravi
Bench: T.R.Ravi
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 15TH DAY OF SEPTEMBER 2020 / 24TH BHADRA, 1942
WP(C).No.24207 OF 2014(A)
PETITIONER:
EMPLOYEES PROVIDENT FUND ORGANISATION
SUB REGIONAL OFFICE, BHAVISHYA NIDHI BHAVAN,
P B NO 1806, ERANHIPALAM P O,
KOZHIKODE 673006,
REP BY ITS ASSISTANT PROVIDENT FUND COMMISSIONER
(COMPLIANCE DIVISION)
BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL, SC, P.F.
RESPONDENTS:
1 BPL TELECOM PVT LTD
SYSTEM HOUSE, PALAKKAD-678001,
REP. BY ITS COMPANY SECRETARY
2 THE EMPLOYEES' PROVIDENT FUND APPELLATE TRIBUNAL
SCOPE MINAR, 4TH FLOOR, CORE 2
LAXMI NAGAR, DELHI-110092
BY ADVS. SRI.P.BENNY THOMAS
SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.GOPINATH
SRI.K.JOHN MATHAI
SRI.JOSON MANAVALAN
SRI.KURYAN THOMAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
15.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.24207 OF 2014(A)
2
JUDGMENT
The writ petition is filed challenging the order dated 08.04.2014 issued by the Employees Provident Fund Appellate Tribunal in Appeal No.631(7)/2011. The above appeal was filed by the respondent challenging the order dated 25.07.2011 of the Assistant Provident Fund Commissioner, Kozhikode under Section 14B of Employees' Provident Fund and Miscellaneous Provisions Act, 1952 levying damages on account of delay in remittance of Provident Fund dues. The contention of the respondent in the appeal was that the delay occurred due to poor financial conditions. The Commissioner had levied damages as per the guidelines contained in paragraph 31A of the Employees Provident Fund Scheme, 1952 holding that financial constrains of the employer is not a ground for waiver of damages. Section 14B says that the Commissioner "may" recover from the employer such damages not exceeding the amount of arrears as WP(C).No.24207 OF 2014(A) 3 he may think fit to impose. Going by the Section, there is a discretion available to impose damages not exceeding the amount of arrears. The Tribunal allowed the appeal in part by reducing damages imposed by one half.
2. Petitioner has challenged the order of the Tribunal solely on the ground that the Commissioner has no discretion available with regard to imposition of damages and that he is bound by paragraph 32A of the Employees Provident Fund Scheme, which prescribes the quantum of damages that have to be levied.
3. The contention raised by the petitioner is no longer res integra. A Division Bench of this Court in Regional Provident Fund Commissioner V. Harrisons Malayalam Ltd. (2013 (3) KLT 790) has held that the discretion available to the authority under Section 14B has not been totally taken away. The Division Bench considered the effect of Section 32A and held in paragraph 12 as follows:
WP(C).No.24207 OF 2014(A) 4 "12. But, before looking into the scheme, one has to necessarily notice that the section definitely retains the discretion on the adjudicating officer to either impose penalty or order complete waiver.
The amended Section 14B also stipulated that Central Provident Fund Commissioner or such other officer as may be authorised by the Central Government "may recover from the employer by way of penalty such damages". Even if we accept the contention of the Organisation that the sliding table provided in paragraph 32A of the Scheme effectively fetters discretion; that is not to say that the discretion conferred under Section 14B to waive completely, the damages, is taken away. In such circumstances, while the officer would have the discretion to either impose or not to impose damages, when a decision to impose is made, then, necessarily, it can be only at the rates provided in the scheme, would be the natural deduction, is the contention. Hence even if we accept the contention of the Organization, then also, an officer authorised by the Central Government under Section 14B would have the discretion to look into the facts and circumstance of each case and decide total waiver of penalty. Would it not be far fetched to say that an officer while having discretion to totally waive the damages cannot at all in a given case take mitigating circumstances to reduce the damages specified under the Scheme? Are we not then enjoined upon to ferret out "hidden injustices and masked malafides" falling back upon the dictum of Organo Chemical Industries (supra)?"
WP(C).No.24207 OF 2014(A) 5 In the light of the above judgment, the writ petition has to be dismissed. Writ petition is accordingly dismissed, without any order as to costs.
Sd/-
T.R.RAVI JUDGE Pn 15/09 WP(C).No.24207 OF 2014(A) 6 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ORDER DTD 8/4/2014 IN ATA NO 631(7)2011 OF THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, NEW DELHI EXHIBIT P2 A TRUE COPY OF THE APPEAL ATA 631(7)2011 EXHIBIT P3 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED ON BEHALF OF THE EPFO IN APPEAL ATA 631(7)/2011