Supreme Court of India
Organo Chemical Industries & Anr vs Union Of India & Ors on 23 July, 1979
Equivalent citations: 1979 AIR 1803, 1980 SCR (1) 61, AIR 1979 SUPREME COURT 1803, 1979 LAB. I. C. 1261, 39 FACLR 309, (1979) 2 LAB LN 358, (1979) 2 LABLJ 416, 1979 (4) SCC 573, (1979) 55 FJR 283
Author: V.R. Krishnaiyer
Bench: V.R. Krishnaiyer, A.P. Sen
PETITIONER:
ORGANO CHEMICAL INDUSTRIES & ANR.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT23/07/1979
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
SEN, A.P. (J)
CITATION:
1979 AIR 1803 1980 SCR (1) 61
1979 SCC (4) 573
CITATOR INFO :
R 1979 SC1918 (14)
R 1985 SC 613 (7)
D 1991 SC 101 (226)
RF 1991 SC1289 (16)
ACT:
Employees Provident Fund and Miscellaneous Provisions
Act 1952-S. 14B and Constitution of India 1950, Art. 14-
Power to recover damages-Absence of appellate review-Whether
violates Art. 14-Damages whether to be credited to general
revenues of State.
Words & Phrases-'Damages' meaning of-Employees
Provident Fund and Miscellaneous Provisions Act 1952-S. 14B.
Interpretation of Statutes-A policy orientation
interpretation necessary for a welfare legislation-Each
word, phrase or sentence to be considered in the light of
general purpose of the Act.
HEADNOTE:
The Provident Fund Act 1952 as originally enacted
provided for the institution of compulsory provident fund
for employees in factories and other establishments. Under
s. 4 of the Act the Central Government framed the Employees
Provident Fund Scheme, 1952 and s. 6 of the Act enjoined on
every employer to make contributions to the Fund. Section
14 of the Act provided penalties for breach of the
provisions of the Act viz., failure to pay contributions,
failure to submit necessary returns etc., and the penalties
extended to various terms of imprisonment extending upto 6
months or with fine upto Rs. 1000/-.
The Act was amended by Parliament by Act XVI of 1971
and it was re-entitled as the "Employees Provident Fund and
Miscellaneous Provisions Act, 1952". The amending Act
inserted s. 6A in the Act for the establishment of the
Family Pension Fund, and in exercise of its powers the
Central Government created the Family Pension Scheme, 1971
and para 9 of the Scheme created a Family Pension Fund and
provided that from and out of contribution payable by the
employer and employees in each month under s. 6 of the Act,
a part of the contribution shall be remitted by the employer
to the Family Pension Fund.
The authorities noticed in the working of the Act and
the Scheme that an employer could delay payment of provident
fund dues without any additional financial liability,
amended the Act and inserted s. 14B for recovery of damages
on the amount of arrears, the object and purpose being to
authorise the Regional Provident Fund Commissioner to impose
exemplary punitive damages and thereby to prevent the
employers from making the defaults. Section 14B as
originally enacted provided, for imposition of such damages
'not exceeding twenty five per cent on the amount of
arrears.' This, however, did not prove sufficiently
deterrent and the employers were still making defaults in
making contributions to the provident fund and in the
meanwhile utilising both their own contribution as well as
the employees' contributions in their business.
62
The National Commission on Labour, recommended that in
order to check the growth of arrears, penalties for default
in payment of provident fund dues should be more stringent
and that the default should be made cognizable. This view
was endorsed by the Estimates Committee in its 116th Report
to the Parliament. Accordingly, the Act was further amended
by Act No. 40 of 1973, and the words "twenty five per cent"
were omitted from s. 14B and the words "not exceeding the
amount of arrears" were substituted.
The employer a chemical industry failed to deposit the
amount of Provident Fund and Family Pension Scheme dues with
the Provident Fund Commissioner. The Regional Provident Fund
Commissioner after issuing a show-cause notice to the
employer, imposed a penalty which was equivalent to the
amount payable by the petitioner company and this penalty
came to nearly Rupees one lakh.
The employer pleaded before the Provident Fund
Commissioner that disputes between the partners of the firm,
power cut of 60% necessitating purchase of generating set on
loan basis leading to loss were the difficulties in making
the contributions in time and these were circumstances
beyond their control. The Regional Provident Fund
Commissioner after affording the petitioner the opportunity
of a hearing, by a reasoned order, considered in detail each
of the grounds taken in mitigation of the default and came
to the conclusion that none of the grounds alleged furnished
a legal justification for the delay in making contributions
in time and held that the petitioner had failed to carry out
their obligations to contribute to the Fund and no
convincing case having been made out to justify the delay in
making the deposits and being 'habitual defaulters', their
case should be severely dealt with and held that it was a
fit case for imposition of punitive damages to ensure due
compliance of the provisions of the Act.
In the writ petition to this Court it was contended on
behalf of the petitioners (i) that s. 14B of the Act is
violative of Art. 14 of the Constitution as it confers
unguided, uncontrolled, and arbitrary powers on the Regional
Provident Fund Commissioner, (ii) s. 14B deals with the
power to recover damages and the damages imposed must have
co-relation with the loss suffered as a result of delayed
payment, (iii) the period of arrears varies from less than
one month to more than 12 months and therefore the
imposition of damages at the flat rate of 100% for all the
defaults irrespective of their duration is not only
capricious but arbitrary; (iv) the absence of provision of
appeal leaves the defaulter-employer with no remedy and (v)
s. 14B of the Act has not authorised levy of any penal
damages i.e. the penalty or fine but deals with the power to
recover the damages.
Dismissing the petition,
^
HELD : Per Krishna Iyer, J.
1. The Act a social security measure is a humane homage
the State pays to Arts. 39 and 41 of the Constitution. The
viability of the project depends on the employer duly
deducting the workers' contribution from their wages, adding
his own little and promptly depositing the same. The
mechanics of the system will suffer paralysis of the
employer fails to perform his function. The dynamics of this
beneficial statute derive its locomotive power from the
funds regularly flowing into the statutory till. [69 B-C]
63
2. If the stream of contributions were frozen by
employers' defaults after due deduction for the wages and
diversion for their own purposes the scheme would be
damnified by traumatic starvation of the Fund. [69D]
3. 'Damages' have a wider socially semantic connotation
than pecuniary loss of interest on non-payment when a
social welfare scheme suffers mayhem on account of the
injury. Law expands concepts to embrace social needs so as
to become functionally effectual. [69E]
4. The power to affect citizen's rights, especially by
way of punitive impost or damages for wrong doing, is quasi-
judicial in character even if exercised by executive
echelons. This Court has underscored the importance of
injecting the norms of natural justice when statutory
functionaries affect the rights of a person. [71A]
5. (i) The imposition of damages on a party after
statutory hearing is quasi-judicial direction. This Court
has impressed the requirements of natural justice on such
jurisdiction and one such desideratum is spelling out
reasons for the order made, in other words, a speaking
order. The inscrutable face of a sphinx is ordinarily
incongruous with a judicial or quasi-judicial performance.
[71E]
(ii) An imperative of s. 14B is that the Commissioner
shall give reasons for his order imposing damages on an
employer. Such a guarantee ensures rational action by the
officer, because reasons imply relevant reasons, not
capricious ink and the need for cogency rivets the officer's
mind to the pertinent material on record. Moreover, once
reasons are set down, the order readily exposes itself to
the writ jurisdiction of the court under Art. 226 so that
perversity, illiteracy, extraneous influence, malafides and
other blatant infirmities straight get caught and corrected.
[71F-G]
6. A high official hears and decides. The maximum harm
is pecuniary liability limited by the statute. The writ
jurisdiction is ready to review glaring errors. Under such
circumstances the needs of the factual situation and the
legal milieu are such that the absence of appellate review
in no way militates against the justice and reasonableness
of the provision. The argument of arbitrariness on this
score is untenable. The section is not bad, though action
under the section can be challenged in writ jurisdiction
when infirmities which attract such jurisdiction vitiate the
order. [71 E-F]
7. The argument that absent detailed guidelines, the
law is void, is not tenable. What is not explicit may still
be implicit. What is not articulated at length may be spun
out from a single phrase. What is not transparent in
particularised provisions may be immanent in the preamble,
scheme, purpose or subject-matter of the Act. What is real
is not only the gross but also the subtle. Such a
perspective dispels the submission that s. 14B is bad as
uncircumscribed and over-broad. [72H-73A]
8. The word 'damages' under s. 14B has a wealth of
implications and limitations, sufficient to serve as
guideline in fixing the impost. The conceptual limitations
of 'damages' serve as guideline and barricade the exercise.
The Commissioner cannot award anything more than or
unrelated to 'damages'. Nor can he go beyond 100% of the
amount defaulted. Such limitations without further
guidelines are not uncommon in taxing laws to penalise
defaults and suppressions. [73B, H, 74A]
64
C.I.T., M.P. v. Radhakrishan, [1979] 2 SCC 249; P. N.
Kaushal v. Union of India, etc., [1978] 3 SCC 558; referred
to.
9. The expression 'damages' is neither vague nor over-
wide. Its precise import in a given context is not difficult
to discern. A plurality of variants stemming out of a core
concept is seen in such words as actual damages, civil
damages, compensatory damages, consequential damages,
contingent damages, continuing damages, double damages,
excessive damages, exemplary damages, general damages,
irreparable damages, pecuniary damages, prospective damages,
special damages, speculative damages, substantial damages,
unliquidated damages. But the essentials are (a) detriment
to one by the wrong doing of another, (b) reparation awarded
to the injured through legal remedies and (c) its quantum
being determined by the dual components of pecuniary
compensation for the loss suffered and often not always a
punitive addition as a deterrent-cum-denunciation by the
law. [74 B-D]
10. 'Exemplary damages' are damages on an increased
scale, awarded to the plaintiff over and above what will
barely compensate him for his property loss, where the wrong
done to him was aggravated by circumstances of violence,
oppression, malice, fraud or wanton and wicked conduct on
the part of the defendant and are intended to solace the
plaintiff for mental anguish laceration of his feelings,
shame, degradation or other aggravations of the original
wrong, or else to punish the defendant for his evil
behaviour or to make an example of him, for which reason
they are also called "punitive" or "punitory" damages or
"vindictive" damages, and (vulgarly) "smart-money". [74E-F]
11. The power conferred to award damages is delimited
by the content and contour of the concept itself and if the
Court finds the Commissioner travelling beyond, the blow
will fall. Section 14B is therefore good for these reasons.
[74G]
12. A policy oriented interpretation when a welfare
legislation falls for determination, especially in the
context of a developing country, is sanctioned by principle
and precedent and is implicit in Art. 37 of the
Constitution, since the judicial branch is, in a sense, part
of the State. So it is reasonable to assign to 'damages' a
larger, fulfilling meaning. [75E]
14. The composite idea of 'damages' includes more than
pecuniary compensation. Moreover, the injured party is the
Board of trustees who administer the Fund. That Fund not
merely loses the interest consequent on the nonpayment but
receives a shock in that its scarce resources are further
famished by employers' default. There is great social injury
to the scheme when employers default in number. So the lash
of the law is delivered when its object is frustrated. More
denunciatory is the fact that the employer makes deductions
from the poor wages of the workers and diverts even those
sums for his private purposes by failing to make prompt
remittances. Thus default in contributions is compounded by
'embezzlement, as it were. Naturally, damages will take an
exemplary character and inflict a heavy blow on the shady
defaulter. [75F-G]
15. The damages are levied under the Act and the
Authority levying damages is created by Act and is
responsible for the collection of contributions and damages
for the Fund. It is not possible to dichotomise and hold
that the contributions go into the Provident Fund but the
rest of the damages go
65
into the general revenues. This is not a fine under the
criminal law. Nor is it recovery on behalf of the Government
of amounts under a general statute for purposes of revenue.
A special statute creating a special fund, empowers special
officers to recover specially designated contributions and
special damages for default. The entire sum belongs to the
fund except perhaps the administrative charges which are
usually separately indicated. It is wrong therefore to
credit the damages into the general revenues. To that extent
it is a breach of the statutory scheme and a deprivation of
what belongs to the workers' Provident Fund. If any State is
diverting the damages under the Act into its own coffers, it
is improper. [76G-77B]
16. 'Damages' as imposed by s. 14B, includes a punitive
sum quantified according to the circumstances of the case.
In 'exemplary damages' this aggravating element is
prominent. Constitutionally speaking such a penal levy
included in damages is perfectly within the area of implied
powers and the legislature may, while enforcing collections,
legitimately and reasonably provide for recovery of
additional sums in the shape of penalty so as to see that
avoidance is obviated. Such a penal levy can take the form
of damages. [75H-76B]
Per Sen, J. 1. Section 14B of the Employees' Provident
Funds and Miscellaneous Provisions Act, 1952 was enacted to
deter the employers and to thwart them from making defaults
in carrying out their statutory obligations to make payments
to the Provident Fund. The object and purpose of the Section
is to authorise the Regional Provident Fund Commissioner to
impose exemplary or punitive damages and thereby to prevent
employees from making defaults. The intention in increasing
the quantum of damages. namely, "not exceeding the amount of
arrears" is to invest the Regional Provident Fund
Commissioner with power to impose such damages so that the
employer would not find it profitable to make defaults in
making payments. [82D-G]
2. The word "damages" in Section 14B of the Employees
Provident Funds and Miscellaneous Provisions Act, 1952
cannot be read in isolation nor can section 14B be read out
of context. The word has to be given its true meaning in
consonance with the objects and purposes of the Legislation.
It must take its colour and content from its context. The
woed 'damages' in section 14B, in the context in which it
appears, means penal damages i.e. a penalty and not merely
actual loss to the beneficiaries. Otherwise the very object
of the Legislation would be frustrated. [87D]
3. The imposition of damages under section 14B serves a
two-fold purpose. It results in damnification and also
serves as a deterrent. The predominent object is to
penalise, so that an employer may be thwarted or deterred
from making any further defaults. [87E]
The expression "damages" accruing in Section 14B is, in
substance, a penalty imposed on the employer for the breach
of the statutory obligation. The object of imposition of
penalty u/s 14B is not merely "to provide compensation for
the employees". The imposition of damages u/s 14B serves
both the purposes. It is meant to penalise defaulting
employer as also to provide reparation for the amount of
loss suffered by the employees. It is not only a warning to
employers in general not to commit a breach of the statutory
requirement of section 6 of the Act, but at the same time it
is meant to provide compensation
66
or redress to the beneficiaries i.e. to recompense the
employees for the loss sustained by them. The damages need
not bear any relationship to the loss which is caused to the
beneficiaries under the scheme. [87F-G]
4. Each word, phrase or sentence must be considered in
the light of the general purpose of the Act itself. A bare
mechanical interpretation of the words devoid of concept or
purpose will reduce most of legislation to futility. It is a
salutary rule well established that the intention of the
legislature must be found by reading the statute as a whole.
[89E]
The word "damages" in section 14B is related to the
word "default". The words used in section 14B are "default
in the payment of contribution" and, therefore the word
"default" must be construed in the light of Para 36 of the
Employees' Provident Fund Scheme, 1952, which provides that
the payment of contribution has got to be made by the 15th
of the following month and, therefore, the word "default" in
section 14B must mean "failure in performance" or "failure
to act". At the same time the imposition of damages u/s 14B
is to provide reparation for the amount of loss suffered by
employees. And this is in accord with the intent and purpose
of the legislation. [87H-88B]
5. In assessing the damages, the Regional Provident
Fund Commissioner is not only bound to take into account the
loss to the beneficiaries, but also the default by the
employer in making his contributions, which occasioned the
infliction of damages. The entire amount of damages awarded
under section 14B, except for the amount relatable to
administrative charges, must necessarily be transferred to
the Employees' Provident Fund and the Family Pension Fund.
The employees would get damages commensurate with their loss
i.e. the amount of interest on delayed payments, but the
remaining amount would go to augment the 'Fund' constituted
under section 5, for implementing the scheme of the Act.
[89G-90A]
6. Section 14B of the Act does not confer unguided or
uncontrolled discretion upon the Regional Provident Fund
Commissioner to impose such damages "as he may think fit",
and, is, therefore, not violative of Article 14 of the
Constitution. [83G]
It cannot be said that there are no guidelines provided
for fixing the quantum of damages. The guidelines are
provided in the Act and its various provisions, particularly
in the word "damages" the liability for which under Section
14B arises on the 'making of default". The word "damages" in
Section 14B lays down sufficient guidelines for the Regional
Provident Fund Commissioner to levy damages. [83G-84B]
7. The power of Regional Provident Fund Commissioner to
impose damages under section 14B is quasi-judicial function.
It must be exercised after notice to the defaulter and after
giving him a reasonable opportunity of being heard. The
discretion to award damages could be exercised within the
limits fixed by the statute, by taking into consideration
various factors, namely, the number of defaults, the period
of delay, the frequency of defaults and the amount involved.
Having regard to the punitive nature of the power
exercisable under Section 14B and the consequences that
ensue therefrom, an order under Section 14B must be a
"speaking order" containing the reasons in support of it.
[83H-84A]
67
Commissioner of Coal Mines Provident Fund, Dhanbad v.
J. Lalla & Sons, [1976] 3 S.C.R. 365; referred to.
8. Mere absence of provision for an appeal in the
Employees Provident Fund and Miscellaneous Provisions Act,
1952 does not imply that the Regional Provident Fund
Commissioner, is invested with arbitrary or uncontrolled
power, without any guidelines. [85B]
The conferral of power to award damages under section
14B is to ensure the success of the measure. It is dependent
on existence of certain facts, there has to be an objective
determination, not subjective. [85C]
The Regional Provident Fund Commissioner has not only
to apply his mind to the requirements of Section 14B but is
cast with the duty of making a speaking order after
conforming to the rules of natural justice. [85C]
The absence of a provision for appeal or revision can
be of no consequence. Where the discretion to apply the
provisions of a particular statute is left with the
Government or one of the highest officers, it will be
presumed that the discretion vested in such a high authority
will not be abused. The Government or such authority is in a
position to have all the relevant and necessary information
in relation to each kind of establishment, the nature of
defaults made by the employer and the necessity to decide
whether the damages to be imposed should be exemplary or
not. When the power has to be exercised by one of the
highest officers, the fact that no appeal has been provided
for "is a matter of no moment". There is always a
presumption that public officials would discharge, their
duties honestly and in accordance with the rules of law.
[85G, D-F]
Mohammad Ali and Ors. v. Union of India and Anr.,
[1963] Suppl. 1 SCR 993; K. L. Gupta v. Bombay Municipal
Corporation, [1968] 1 SCR 274; Chintalingam and Ors. v.
Govt. of India and Ors. [1971] 2 SCR 871 and Pannalal
Binjraj v. Union of India, [1957] SCR 233; followed.
9. In the instant case, the petitioners are guilty of
suppressio veri for deliberate concealment of facts
pertaining to the earlier defaults and the attendant levy of
damages under s. 14B. The petitioners instead of making
their contributions, deliberately made willful defaults on
one pretext or another and have been utilising the amounts
deducted from the wages of their employees, including their
own contributions as well as administrative charges, in
running their business. Therefore, this was pre-eminently a
fit case for imposition of punitive damages to ensure due
compliance of the provisions of the Act. [79F, G, 80C]
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 4319 of 1978. (Under Article 32 of the Constitution) Bardridas Sharma and K. R. R. Pillai for the Petitioners.
Soli J. Sorabjee, Addl. Sol. Genl. of India and A. Subhashini for the Respondents.
The following Judgments were delivered :
68KRISHNA IYER, J.-Having had the advantage of reading my learned brother's judgment I should have stopped mine with a single sentence, following the example of Diplock, L.J. who in Hughes v. Hughes(1) merely said: 'For the reasons given by my brother Harman I would dismiss the appeal'. But I respect brother Sen's request that my concurrence notwithstanding I should, in a separate opinion, highlight the quintessential aspects and reinforce the legal conclusions which are interpretatively decisive and constitutionally validatory of Section 14B of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (briefly, the Act). That is the apology for this separate judgment of mine. Why an apology? Because exordiums are opprobriums and socio-economic apercus are anathemas for some judicial psyches; and I should have, for that reason, abandoned my habitual deviance from the orthodox norm idealised by some that a judicial judgment shall be a dry statement of facts, drier presentation of law and logomachy and driest in least communicating to the law abiding community, which is the court's constituency, the glow of life giving principles rooted in social sciences and translated into juristic rules which legitimate our institution functionally. The last consideration, in my humble view, is the elan vital of the justicing process and jettisoning it is judicial self-alienation from the nation. Of course, minds differ as rivers differ and habits die hard The central issues in this civil appeal are whether Sec. 14B of the E.P.F. and M.P. Act is unconstitutional and, if not, what is the semantic-juristic sweep of the expression 'damages' used therein. Other vital but peripheral matters may be side-stepped for the nonce, especially because my learned brother has neatly and rightly dealt with them. The factual setting of the case, without which the legal contentions argued lose their lucent relevance, have been stated by my brother Sen, J. but I may project them in a single sentence to help focus on the vires of Sec. 14B and the conceptual width of 'damages' in the given context. Is the imposition by the 'speaking order' of the Regional Provident Fund Commissioner, Chandigarh, of a heavy penalty of Rs. 94,996.80 by way of damages under Sec. 14B of the E.P.F. and M.P. Act 1952 upon the writ petitioners-employers, for chronic and unjustified defaults in remittances of the provident fund contributions of themselves and their employees legally sustainable, if obviously in excess of the pecuniary loss of interest attributable to the non-payment. Briefly and broadly and lopping off aspects unnecessary for this case the scheme of the Act is that each employer and employee in every 'establishment' falling within the Act do contribute 69 into a statutory fund a tittle, viz. 6 1/4% of the wages to swell into a large Fund wherewith the workers who toil to produce the nation's wealth during their physically fit span of life may be provided some retiral benefit which will 'keep the pot boiling' and some source wherefrom loans to face unforeseen needs may be obtained. This social security measure is a humane homage the State pays to Articles 39 and 41 of the Constitution. The viability of the project depends on the employer duly deducting the workers' contribution from their wages, adding his own little and promptly depositing the nickle into the chest constituted by the Act.
The mechanics of the system will suffer paralysis if the employer fails to perform his function. The dynamics of this beneficial statute derives its locomotive power from the funds regularly flowing into the statutory till.
The pragmatics of the situation is that if the stream of contributions were frozen by employers' defaults after due deduction from the wages and diversion for their own purposes, the scheme would be damnified by traumatic starvation of the Fund, public frustration from the failure of the project and psychic demoralisation of the miserable beneficiaries when they find their wages deducted and the employer get away with it even after default in his own contribution and malversation of the workers' share. 'Damages' have a wider socially semantic connotation than pecuniary loss of interest on non-payment when a social welfare scheme suffers mayhem on account of the injury. Law expands concepts to embrace social needs so as to become functionally effectual.
We may read Sec. 14B and Rule 38 to vivify the discussion:
"14B. Power to recover damages: Where an employer makes defaults in the payments of any contribution to the Fund (the Family Fund or the Insurance Fund) or in the transfer of accumulations required to be transferred by him under sub-section (2) of Section 15 [for sub-section (5) of Section 17] or in the payment of any charges payable under any other provision of this Act or of (any scheme or Insurance Scheme) or under any of the conditions specified under Section 17, (the Central Provident Fund Commissioner or such other officer as may be authorised by the Central Government by notification in the Official Gazette in this behalf) may recover from the employer such damages, not exceeding the amount of arrear, as it may think fit to impose.
Provided that before levying and recovering such damages, the employer shall be given a reasonable opportunity of being heard."70
"38 Mode of payment of contribution-(1) The employer shall, before paying the member his wages in respect of any period or part of period for which contributions are payable, deduct the employee's contribution from his wages which together with his own contribution as well as an administrative charge of such percentage of the total employer's and employee's contribution as may be fixed by the Central Government, he shall within fifteen days of the close of every month's pay to the Fund by separate Bank drafts or cheques on account of contributions and administrative charge......
(2) The employer shall forward to the Commissioner, within fifteen days of the close of the month, a monthly consolidated statement in such form as the Commissioner may specify showing recoveries made from the wages of each employee and the amount contributed by the employer in respect of each such employee".
Counsel for the petitioners has turned the constitutional fusillade on Sec. 14B by charging it with many-sided, in-built arbitrariness and therefore liable to be fatally shot down by Art. 14. The provision is simple and the contention is familiar. The offending words of Sec. 14B are that 'the Provident Fund Commissioner may recover from the employer such damages, not exceeding the amount of arrear, as it thinks fit to impose.' Within the limit of 100%, the enforcing agency is vested with naked and unguided power to inflict any quantum of damages as he fancies and this blanket authority is instinct with discriminatory possibility, a vice to which Art. 14 is very allergic. No reasons need be given, no appellate or revisional review is prescribed and no judicial qualification is required for the Commissioner. This tiny statutory tyrant must be slain if equal justice under the law were to be part of our fundamental rights package. So runs the argument-
traditional, attractive and near-lethal. Indeed, if executive fiats released from legal restraints, were free to run amok, our freedoms would be frothy boasts ! Sedulous scrutiny of this submission of counsel is our solemn duty since I share with him the pensive thought that arrogance of power dressed in little, brief authority is the undoing of our constitutional order. And yet, here the mini-nero portrait is too naive to meet with approval.
A shower of precedents has rained on Art. 14 but the cardinal principles have sunk so deep into the constitutional consciousness of the juristic community that recapitulation of citations is an act of supererogation. 1 desist from it.
71The power to affect citizen's rights, especially by way of punitive impost or damages for wrong doing, is quasi- judicial in character even if exercised by executive echelons. This Court has underscored the importance of injecting the norms of natural justice when statutory functionaries affect the rights of a person. The most recent of the cases which lay bare the elementals of this branch of jurisprudence are: (1)Siemens Engineering and Manufacturing Co. of India Ltd. v. Union of India(1); (2) Maneka Gandhi v. Union of India(2) and (3) Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi and Ors.(3) In Siemens' case this Court observed:
"It is now settled law that where an authority makes an order in exercise of a quasi-judicial function it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N. M. Desai v. The Testeels Ltd. & Anr.(4)"
Fair play in Administration is a finer juristic facet, at once fundamental and inviolable and natural justice is an inalienable functional component of quasi-judicial acts. Here, it is indubitable that the imposition of damages on a party after a statutory hearing is a quasi-judicial direction. This Court has impressed the requirements of natural justice on such jurisdictions and one such desideratum is spelling out reasons for the order made, in other words, a speaking order. The inscrutable face of a sphinx is ordinarily incongruous with a judicial or quasi- judicial performance. It is, in my view, an imperative of Sec. 14B that the Commissioner shall give reasons for his order imposing damages on an employer. The constitutionality of the power, tested on the anvil of Articles 14 and 19, necessitates this prescription. Such a guarantee ensures rational action by the officer, because reasons imply relevant reasons, not capricious ink and the need for cogency rivets the officer's mind to the pertinent material on record. Moreover, once reasons are set down, the order readily exposes itself to the writ jurisdiction of the court under Article 226 so that perversity, illiteracy, extraneous influence, malafides and other blatant infirmities straight get caught and corrected. Thus, viewing the situa-
72tion from the conspectus of requirements and remedies, statutory agencies may be inhibited and the scare of arbitrary behaviour allayed once reasons are required to be given.
Nor is the plea of absence of guidelines or appellate review sound enough to subvert the validity of Sec. 14B. It is attractive to hear the argument that an order passed by an authority, which becomes infallibly final in the absence of an appeal or revision, is apt to be arbitrary and bad. An appeal is a desirable corrective but not an indispensable imperative and while its presence is an extra check on wayward orders its absence is not a sure index of arbitrary potential. It depends on the nature of the subject matter, other available correctives, possible harm flowing from wrong orders and a wealth of other factors.
If a death sentence is allowed to become conclusive without so much as a single appeal, Articles 14 and 21 may imperil such a provision but if a fine of Rs. 5/- imposed for a minor offence in a summary trial by a First-Class Magistrate is imparted a finality, subject, of course, to a constitutional remedy in the event of perverse or patent illegality we may still uphold that provision with an easy constitutional conscience. In the present case, a hearing is given to the affected party. Reasons have to be recorded in the order awarding damages. The writ jurisdiction is ready to review glaring errors. The maximum harm is pecuniary liability limited by the statute. A high official hears and decides. Under such circumstances the needs of the factual situation and the legal milieu are such that the absence of appellate review in no way militates against the justice and reasonableness of the provision. The argument of arbitrariness on this score is untenable. The section is not bad. Maybe, action under the section may be challenged in writ jurisdiction provided infirmities which attract such jurisdiction vitiate the order.
The bogie of absence of guidelines in the provision and consequential possibility of the authority running berserk or acting humanistically does not frighten. Of course, the more bereft of explicit guidelines a statutory power is, the more searching must be the judicial invigilation to discover hidden injustice and masked mala fides. Even so, let us examine the ground that, absent detailed guidelines, the law is void. What is not explicit may still be implicit. What is not articulated at length may be spun out from a single phrase. What is not transparent in particularised provisions may be immanent in the preamble, scheme, purpose or subject- matter of the Act. What is real is not only the gross but also the subtle, if I may strike a deeper note. Such a pers-
73pective dispels the submission that s. 14B is bad as uncircumscribed and over-broad.
The power under the Section permits award of 'damages' and that word has a wealth of implications and limitations, sufficient to serve as guideline in fixing the impost. In Arvinder Singh's case(1) this Court upheld an otherwise unbridled power to levy tax by importing a variety of factors gathered from the statute and relied on many precedents. Likewise, in Radhakrishan's case(2) this Court rejected the plea that a power in the Commissioner to choose one of the two remedies was invalid in the absence of guidelines and observed, on a review of the case-law:
"When power is conferred on high and responsible officers they are expected to act with caution and impartiality while discharging their duties and the circumstances under which they will choose either of the remedies available should be left to them. The vesting of discretionary power in the state or public authorities or an officer of high standing is treated as a guarantee that the power will be used fairly and with a sense of responsibility.
It has been held by the Privy Council in Province of Bombay v. Bombay Municipal Corporation (3), that every statute must be supposed to be for public good at least in intention and therefore of few laws can it be said that the law confers unfettered discretionary power since the policy of law offers guidance for the exercise of discretionary power".
Although our democratic ethos is incongruous with the assumption that highly paid officials are more responsible than low-paid minions, the jurisprudence of power must be applied workably and not untouched by reality. More to the point is the decision in Kaushal's case(4). There this Court accepted the submission that the seemingly naked power under Sec. 59 of the Punjab Excise Act was guided by the requirement that it was to be exercised for control of consumption of intoxicants. (The whole scheme of the statute proclaims its purpose of control in time and space and otherwise observed the Court). Here the conceptual limitations of 'damages' serve as guideline and barricade 74 the exercise. The Commissioner cannot award anything more than or unrelated to 'damages'. Nor can he go beyond 100% of the amount defaulted. Such limitations without further guidelines are not uncommon in taxing laws to penalise defaults and suppressions.
What do we mean by 'damages'? The expression 'damages' is neither vague nor over-wide. It has more than one signification but the precise import in a given context is not difficult to discern. A plurality of variants stemming out of a core concept is seen in such words as actual damages, civil damages, compensatory damages, consequential damages, contingent damages, continuing damages, double damages, excessive damages, exemplary damages, general damages, irreparable damages, pecuniary damages, prospective damages, special damages, speculative damages, substantial damages, unliquidated damages. But the essentials are (a) detriment to one by the wrong-doing of another (b) reparation awarded to the injured through legal remedies and
(c) its quantum being determined by the dual components of pecuniary compensation for the loss suffered and often, not always, a punitive addition as a deterrent-cum-denunciation by the law. For instance, 'exemplary damages are damages on an increased scale, awarded to the plaintiff over and above what will barely compensate him for his property loss, where the wrong done to him was aggravated by circumstances of violence, oppression, malice, fraud, or wanton and wicked conduct on the part of the defendant, and are intended to solace the plaintiff for mental anguish, laceration of his feelings, shame, degradation, or other aggravations of the original wrong, or else to punish the defendant for his evil behavior or to make an example of him, for which reason they are also called "punitive" or "punitory" damages or "vindictive" damages, and (vulgarly) "smart-money". (See Black's Law Dictionary, 4th Edition p. 467/468). It is sufficient for our present purpose to state that the power conferred to award damages is delimited by the content and contour of the concept itself and if the Court finds the Commissioner travelling beyond, the blow will fall. Sec. 14B is good for these reasons.
The further submission is that damages being compensatory in character could not exceed the interest the amount defaulted would have carried during the period of delay. The respondent has gone beyond the mere quantum of interest and has rounded it off to a sum equal to the defaulted contribution. Is this excess an illegal extravagance or a legal levy ? This turns on what is 'damages' in the setting of the Act.
75The measure was enacted for the support of a weaker sector viz. the working class during the superannuated winter of their life. The financial reservoir for the distribution of benefits is filled by the employer collecting, by deducting from the workers' wages, completing it with his own equal share and duly making over the gross sums to the Fund. If the employer neglects to remit or diverts the moneys for alien purposes the Fund gets dry and the retirees are denied the meagre support when they most need it. This prospect of destitution demoralises the working class and frustrates the hopes of the community itself. The whole project gets stultified if employers thwart contributory responsibility and this wider fall-out must colour the concept of 'damages' when the court seeks to define its content in the special setting of the Act. For, judicial interpretation must further the purpose of a statute. In a different context and considering a fundamental treaty, the European Court of Human Rights, in the Sunday Times Case, observed :
"The Court must interpret them in a way that reconciles them as far as possible and is most appropriate in order to realise the aim and achieve the object of the treaty".
A policy-oriented interpretation, when a welfare legislation falls for determination, especially in the context of a developing country, is sanctioned by principle and precedent and is implicit in Art. 37 of the Constitution since the judicial branch is, in a sense, part of the State. So it is reasonable to assign to 'damages' a larger, fulfilling meaning.
What are the strands which make the fabric of 'damages' under the Article? I have stated earlier that the composite idea of 'damages' includes more than pecuniary compensation. Moreover, the injured party is the Board of Trustees who administer the Fund. That Fund not merely loses the interest consequent on the non-payment but receives a shock in that its scarce resources are further famished by employers' default. There is great social injury to the scheme when employers default in numbers. So the lash of the law is delivered when its object is frustrated. What is more denuciatory is the fact that the employer makes deductions from the poor wages of the workers (and makes them suffer to that extent) and diverts even those sums for his private purposes by failing to make prompt remittances. Thus, default in contributions is compounded by embezzlement, as it were, Naturally, damages will take an exemplary character and inflict a heavy blow on the shady defaulter.
I am clearly of the view that 'damages', as imposed by Section 14B, included a punitive sum quantified according to the circumstances of 76 the case. In 'exemplary damages' this aggravating element is prominent. Constitutionally speaking, such a penal levy included in damages is perfectly within the area of implied powers and the legislature may, while enforcing collections, legitimately and reasonably provide for recovery of additional sums in the shape of penalty so as to see that avoidance is obviated. Such a penal levy can take the form of damages because the reparation for the injury suffered by the default is more than the narrow computation of interest on the contribution.
This Court has in R.S. Joshi, Sales Tax Officer, Gujarat and Others v. Ajit Mills Limited and Another(1) considered the constitutionality of a penal forfeiture and a bench of seven judges in that case has upheld it.
A Patna decision where the levy of damages was attacked as violative of Article 20(2) has taken the view that the amount of damages imposed under Section 14B is penal in character. Of course, the learned judges repelled the application of Article 20(2) of the Constitution to this situation but made some observations which are misleading. The Court there took the view that the damages imposed under Section 14B are transferred to the general revenues of the appropriate government and went on to observe: "In other words, the infliction of the damages under section 14B is not meant to provide compensation or redress to the employees whose interest may be injured. It is not meant to provide reparation to such employees and the quantum of damages imposed has no relation to the amount of loss suffered by the employees. I consider that the infliction of the damages under section 14B is penal in its nature. It is a warning to employers in general not to commit a breach of the statutory rule".
The above observations, in my view, are unsound and I am happy to record that my learned brother takes the same view, although in his separate judgment this aspect has not been expressly considered. I speak for both of us. The damages are levied under the Act. The authority levying penal damages is created by the Act and is responsible for the collection of contributions and damages for the Fund. It is not possible to dichotomise and hold that the contributions go into the Provident Fund but the rest of the damages go into the general revenues. This is not a fine under the criminal law. Nor is it recovery, on behalf of the Government of amounts under a general statute for purposes of revenue. A special statute creating a special fund, em-
77powers special officers to recover specially designated contributions and special damages for default. The entire sum belongs to the Fund except perhaps the administrative charges which are usually (as in this case) separately indicated. In our view, therefore, it is wrong to credit the damages into the general revenues. To that extent it is a breach of the statutory scheme and a deprivation of what belongs to the workers' Provident Fund. Indeed, employees are a needy community and if the Fund is replenished by damages the scheme can be improved and the benefits augmented. We, therefore, express the view that if any State is diverting damages under the Act into its own coffers, it is improper. Lazarus can ill-afford to lose even a little. State and citizen alone is subject to the rule of law.
I am in full agreement with the concluding statement regarding the disposition of the damages made in my learned brother's judgment:
The learned Additional Solicitor General was fair enough to concede that the entire amount of damages awarded under Section 14B except for the amount relatable to administration charges must necessarily be transferred to the Fund constituted under the Act. We hope that those charged with administering the Act will keep this in view while allocating the damages under Section 14B of the Act to different heads. The employees would, of course, get damages commensurate with their loss, that is, the amount of interest on delayed payment but the remaining amount should go to augment the Fund constituted under Section 5 for implementing the schemes under the Act.
In this view I direct the appropriate Government to credit the sums allocable to the Fund so that the damages may reach where it belongs.
I wholly agree with my learned brother, for the reasons I have given. The Writ Petition deserves to be dismissed with costs.
SEN, J.-This is a petition under Article 32 of the Constitution by M/s. Organo Chemical Industries, Sonepat directed against an order of the Regional Provident Fund Commissioner, Chandigarh, dated October 12, 1977, by which he imposed a penalty of Rs. 94,996.80 on the petitioners as damages under s. 14B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, for delayed remittances of the Employees' Provident Fund, Family Pension Scheme contributions of their employees, including their own contributions, and the administrative charges thereon.
Organo Chemical Industries, an 'establishment' within the meaning of section 1(3) of the Employees' Provident Funds and Miscellaneous 78 Provisions Act, 1952 (hereinafter referred to as 'the Act') to which the Act applies, committed defaults in payments of Provident Fund and Family Pension Scheme dues for the period from March to October 1975 and again for the period from December 1975 to November 1976 to the extent of Rs. 92,687.00 and of administrative charges amounting to Rs. 2,309.80 i.e. Rs. 94,996.80 in all. The Regional Provident Fund Commissioner, Chandigarh, accordingly, issued a show cause notice dated June 7, 1977 requiring the petitioners to show cause why damages should not be levied under s. 14B of the Act. The notice was accompanied by a statement showing a break-up of the various amounts in arrears and the extent of delay in respect of each payment and the details of damages proposed to be imposed on the belated payments. The period of delay in payment of the amounts remitted varied from a few months to a year. It was proposed to levy damages at a uniform rate of hundred per cent on each of the amounts in arrears. In response to the notice, the petitioners tried to explain away the delay by alleging that it was due to difficulties beyond their control and, therefore, the payments could not be made in time viz., the facts that there were disputes between the partners of the firm as a result of which, there was a loss of Rs. 1,40,165.15, there was a power cut of 60% by the Haryana Electricity Board w.e.f. May 6, 1974, which compelled the petitioners to purchase a Generating set to tide over the difficulties and that the establishment had borrowed huge sums from the Haryana Financial Corporation and in payment of which it had defaulted for want of financial resources etc. It was, accordingly, contended that the default, if any, was not willful as they had no intention to commit a default. The Regional Provident Fund Commissioner after giving to the petitioners the opportunity of a hearing by his reasoned order dated August 16, 1977 considered in detail each of the grounds taken in mitigation of the defaults and came to the conclusion that none of the grounds alleged furnished a legal justification for the delay in making contributions in time. As regards the alleged dispute among the partners leading to a loss of Rs. 1,40,165.15, he observed:
"Even if it is assumed that there was a loss as claimed it does not justify the delay in deposit of Provident Fund money which is in unqualified statutory obligation and cannot be allowed to be linked with the financial position of the establishment, over different points of time. Besides 50% of the contributions deposited late represented the employees' share which had been deducted from the employees wages and was a trust money with employer for deposit in the statutory fund. The delay in the deposit of this part of the 79 contribution amounted to breach of trust and does not entitle the employer to any consideration for relief."
With respect to the plea that the petitioners had been subject to a power-cut of 60% w.e.f. May 6, 1974 by the Haryana Electricity Board, he negatived the plea by observing that this restriction was not exclusive to them and further that no cause had been shown as to how this prevented them from depositing the provident fund dues in time. Even if the power-cut had resulted in any substantial loss, it would have reduced the liability on the amount of provident fund dues also. He went on to observe that where an employer can pay wages, it is not conceivable why it cannot pay the provident fund dues. As regards the stand taken that the establishment had borrowed huge sums from the Haryana Financial Corporation and in repayment of which it had default, he held that even if it were so, the fact did not absolve the establishment of its statutory obligation for deposit of provident fund dues in time. Similarly, the other reasons furnished like the purchase of a new generating plant or internal dispute among the partners and the dissolution of the partnership firm etc. did not constitute sufficient cause beyond the control of the petitioners to justify the late deposit of provident fund dues. He, accordingly, concluded that the petitioners had failed to carry out their obligation to contribute to the Employees' Provident Fund and Family Pension scheme within the time limit provided therefor; and that no convincing case had been made out to justify the delay in making the deposits. He also on the material on record found, as a fact, that the petitioners, having regard to their past record, were 'habitual defaulters' and had, therefore, to be severely dealt with, and should be visited with the maximum penalty.
The petitioners are guilty of suppressio veri and this, by itself, was sufficient to dismiss the writ petition; but, since it involves a point of importance which was argued at length, we will have to deal with the same.
There can be no doubt that the petitioners have been habitual defaulters in the matter of making contributions to the Employees' Provident Fund, Family Pension Scheme and payment of administrative charges from the very inception. They have deliberately concealed the facts pertaining to the earlier defaults and the attendant levy of damages under s. 14B of the Act. For the period between November 1970 and January 1971, again for the period between October 1971, February 1972, March and April 1973, August to October, 1973, January and February 1974, then again for the period March 1974, May to August 1974, October and December 1974, and 80 January 1975, they made delayed payments of the Employees' Provident Fund and Family Pension Scheme Contribution and consequently the Regional Provident Fund Commissioner after notice to them under s. 14B, and after considering the objections raised and hearing the petitioners, imposed damages amounting to Rs. 223.35, Rs. 2,452.40 and Rs. 15,214.05 for the periods in question respectively, which they deposited on February 17, 1972, September 25, 1975 and December 13, 1976.
It would thus be manifest that the petitioners instead of making their contributions, deliberately made willful defaults on one pretext or another and have been utilising the amounts deducted from the wages of their employees, including their own contributions as well as administrative charges, in running their business. The Regional Provident Fund Commissioner, therefore, rightly observed that the petitioners having regard to their past record must be visited with the maximum penalty.
Taking an overall view, the Regional Provident Fund Commissioner, by his reasoned order dated October 12, 1977, adverted to the fact that the petitioners were habitual defaulters and, therefore, deserve to be dealt with sternly so as to bring home the deterrent effect of damages under s. 14B of the Act and, accordingly, directed recovery of Rs. 94,996.80 at the rate of hundred per cent i.e. equivalent to the amount in arrears, for the delayed payment of contributions to the Employees' Provident Fund, the Family Pension Fund and administrative charges, as detailed below:-
Rs.
(1) Damages on delayed payment of provident fund and family pension fund contributions required to be deposited u/s.6 . 92,687.00 (2) Damages on delayed payment of administrative charges ... ... 2,309.80
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94,996.80
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This was pre-eminently a fit case for imposition of punitive damages to ensure due compliance of the provisions of the Act.
Before stating the contentions raised by learned counsel for the petitioners, we think it convenient to set out the scheme of the Act and the relevant provisions thereof having a bearing on the question to be determined. It would be relevant to take into account some of the provisions of the Provident Funds Act which have since its inception in 1952, been subjected to various amendments. The Provident Fund Act, 1952 as originally enacted, provides for the institution of compulsory provident funds for employees in factories and other 81 establishments. It applies to every establishment which is a factory engaged in any industry specified in Schedule I and in which twenty or more persons are employed and to any other establishment employing twenty or more persons or class of such establishments which the Central Government may specify in that behalf by Notification in the Official Gazette. Under s. 4, the Central Government framed the Employees' Provident Funds Scheme, 1952 by S.R.O. 1509, dated September 2, 1952. Section 6 of the Act enjoins on every employer to make contribution to the Employees' Provident Fund at the rate of 6% of the basic wages, dearness allowance, retaining allowance, if any, for the time being payable to each of the employees and the employees' contribution shall be equal to the contribution by the employer in respect of him. The employee at his option may, however, increase the contribution to the extent of 8-1/3%.
The initial responsibility for making payment of the contribution of the employer as well as of the employee, lies on the employer. Para 30 of the Scheme makes it incumbent on the employer that he shall, in the first instance, pay both the contribution payable by himself and also on behalf of the member employed by him. Under para 38, the employer is authorised before paying the member employee his wages in respect of any period or part of period for which contributions are payable, to deduct the employee's contribution from his wages. It further provides that the deposit of such contribution shall be made by the employer within fifteen days of the close of every month, i.e., a contribution for a particular month has got to be deposited by the 15th day of the month following. A breach of any of these requirements is made a penal offence. Section 14 of the Act provides for penalties. Failure to comply with the requirements of s. 6 is punishable with various terms of imprisonment which may extend to a period of six months, or with fine which may extend to one thousand to two thousand rupees, under the provisions of s. 14, depending upon the nature of the breach, viz., failure to pay the contributions, or failure to submit the necessary returns, or failure to pay administrative charges. Section 14A provides for offences by companies and other corporate bodies. Para 76 of the Scheme provides for punishment for failure to pay contributions etc., and in particular by cl.
(d), every employer guilty of contravention or of non- compliance with the requirements of the Scheme, shall be punishable with imprisonment which may extend to six months or with fine of Rs. 1,000/-.
Parliament amended the Act by Act No. 16 of 1971, and it was re-entitled as the 'Employees' Provident Funds and Miscellaneous 82 Provisions Act, 1952'. It inserted s. 6A in the Act for the establishment of the Family Pension Fund. In exercise of the powers conferred by s. 6A, the Central Government framed the Employees' Family Pension Scheme, 1971 by G.S.R. 315, dated March 4, 1971. Under Para 4 of the Scheme, every employee who is a member of the Employees' Provident Fund, is given the option to join the Family Pension Scheme. Para 9 created the Family Pension Fund and provides that from and out of the contributions payable by the employer and employees in each month under s. 6 of the Act, a part of the contribution, representing 1-1/6% of the employees' pay along with an equivalent amount of 1-1/6% from out of the employer's contribution, shall be remitted by the employer to the Family Pension Fund.
In its working, the authorities were faced with certain administrative difficulties. An employer could delay payment of Provident Fund dues without any additional financial liability. Parliament, accordingly, inserted s. 14B for recovery of damages on the amount of arrears. The reason for enacting s. 14B is that employers may be deterred and thwarted from making defaults in carrying out statutory obligations to make payments to the Provident Fund. The object and purpose of the section is to authorise the Regional Provident Fund Commissioner to impose exemplary or punitive damages and thereby to prevent employers from making defaults. Section 14B, as originally enacted, provided for imposition of such damages, not exceeding 25% of the amount of arrears. This, however, did not prove to be sufficiently deterrent. The employers were still making defaults in making contributions to the Provident Fund, and in the meanwhile utilising both their own contribution as well as the employees' contribution, in their business. The provision contained in s. 14B for recovery of damages, therefore, proved to be illusory. Accordingly, by Act No. 40 of 1973, the words 'twenty-five per cent of' were omitted from s. 14B and the words 'not exceeding the amount of arrear' were substituted. The intention is to invest the Regional Provident Fund Commissioner with power to impose such damages that the employer would not find it profitable to make defaults in making payments.
In support of the petition, learned counsel for the petitioners assails the impugned order on two grounds, namely, (i) s. 14B of the Act is violative of Article 14 of the Constitution as it confers unguided, uncontrolled and arbitrary power on the Regional Provident Fund Commissioner to impose damages which may be to the extent of 100% i.e., equal to the amount of arrears. The conferral of such unguided, uncanalised and arbitrary power on the Regional Provident 83 Fund Commissioner to arrive at a decision, without any guide-lines whatsovever, makes s. 14B constitutionally invalid as offending against Article 14, and (ii) s. 14B deals with the power to recover damages. It is not the power to impose penalties. The word 'damages' in s. 14B must, therefore, be understood in the legal sense. Damages must have some correlation with the loss suffered as a result of delayed payments. The authority imposing the penalty or damages must, therefore, apply its mind to this aspect of the matter. The defaulting employer under s. 14B is, accordingly, liable to pay damages which represents the loss to the beneficiaries of the scheme, such as recovery of interest; but not anything more, as such recovery would amount to penalty, and that is not permitted under the section. There is no substance in any of the contentions.
Section 14B of the Act reads as follows:
"14B. Power to recover damages:-Where an employer makes defaults in the payment of any contribution to the Fund (the Family Fund or the Insurance Fund) or in the transfer of accumulations required to be transferred by him under sub-section (2) of Section 15 (or sub- section (5) of Section 17) or in the payment of any charges payable under any other provision of this Act or of (any scheme or Insurance Scheme) or under any of the conditions specified under Section 17, (the Central Provident Fund Commissioner, or such other officer as may be authorised by the Central Government, by notification in the Official Gazette in this behalf) may recover from the employer such damages, not exceeding the amount of arrear, as it may think fit to impose.
Provided that before levying and recovering such damages, the employer shall be given a reasonable opportunity of being heard."
The contention that section 14B confers unguided and uncontrolled discretion upon the Regional Provident Fund Commissioner to impose such damages 'as he may think fit' is, therefore, violative of Article 14 of the Constitution, cannot be accepted. Nor can it be accepted that there are no guide-lines provided for fixing the quantum of damages. The power of the Regional Provident Fund Commissioner to impose damages under s. 14B is a quasi-judicial function. It must be exercised after notice to the defaulter and after giving him a reasonable opportunity of being heard. The discretion to award damages could be exercised within the limits fixed by the Statute. Having regard to the punitive nature of the power exercisable under s. 14B 84 and the consequences that ensue therefrom, an order under s. 14B must be a 'speaking order' containing the reasons in support of it. The guide-lines are provided in the Act and its various provisions, particularly in the word 'damages' the liability for which under s. 14B arises on the 'making of default'. While fixing the amount of damages, the Regional Provident Fund Commissioner usually takes into consideration, as he has done here, various factors viz. the number of defaults, the period of delay, the frequency of defaults and the amounts involved. The word 'damages' in s. 14B lays down sufficient guidelines for him to levy damages.
Learned counsel for the petitioners, however, contends that in the instant case, the period of arrears varies from less than one month to more than 12 months and, therefore, the imposition of damages at the flat rate of hundred per cent for all the defaults irrespective of their duration, is not only capricious but arbitrary. The submission is that if the intention of the legislature was to make good the loss caused by default of an employer, there could be no rational basis to quantify the damages at hundred per cent in case of default for a period less than one month and those for a period more than 12 months. It is urged that the fixation of upper limit at hundred per cent is no guide-line. If the object of the Legislation is to be achieved, the guide-lines must specify a uniform method to quantify damages after considering all essentials like loss or injury sustained, the circumstances under which the default occurred, negligence, if any, etc. It is said that the damages under s. 14B which is the pecuniary reparation due must be correlated to all these factors. In support of his contention, he drew our attention to s. 10F of the Coal Mines Provident Fund and Bonus Schemes Act, 1958, which uses the words 'damages not exceeding twenty-five per cent' like section 14B of the Act, and also to a tabular chart provided under that Act itself showing that the amount of damages was correlated to the period of arrears. We regret, we cannot appreciate this line of reasoning. Section 10F of the Act of 1958 came up for consideration before this Court in Commissioner of Coal Mines Provident Fund, Dhanbad v. J. Lalla & Sons.(1) This Court observed, firstly, that the determination of damages is not 'an in flexible application of a rigid formula', and secondly, the words 'as it may think fit to impose' show that the authority is required to apply its mind to the facts and circumstances of the case. The contention that in the absence of any guide-lines for the quantification of damages, s. 14B is violative of Article 14 of the Constitution, must, therefore, fail.
In this connection, it was also urged that the absence of any provision for appeal, leaves the defaulting employer with no remedy. The 85 conferral of arbitrary and uncontrolled powers on the Regional Provident Fund Commissioner to quantify damages, it is said, without a corresponding right of appeal or revision, makes the provision contained in s. 14B per se void and illegal and it is liable to be struck down on that ground. We are afraid, the contention is wholly devoid of substance. Mere absence of provision for an appeal does not imply that the Regional Provident Fund Commissioner is invested with arbitrary or uncontrolled power, without any guide-lines. The conferral of power to award damages under s. 14B is to ensure the success of the measure. It is dependent on existence of certain facts, there has to be an objective determination, not subjective. The Regional Provident Fund Commissioner has not only to apply his mind to the requirements of s. 14B but is cast with the duty of making a "speaking order", after conforming to the rules of natural justice.
This Court has repeatedly laid it down that where the discretion to apply the provisions of a particular statute is left with the Government or one of the highest officers, it will be presumed that the discretion vested in such high authority will not be abused. The Government or such authority is in a position to have all the relevant and necessary information in relation to each kind of establishment, the nature of defaults made by the employer, and the necessity to decide whether the damages to be imposed should be exemplary or not: Mohmedalli & Ors. v. Union of India & Anr.(1) It was stated in K. L. Gupta v. Bombay Municipal Corporation(2) that when power as to be exercised by one of the highest officers, the fact that no appeal has been provided for 'is a matter of no moment'. The same view was reiterated in Chinta Lingam & Ors. v. Government of India & Ors.(3) There is always a presumption that public officials would discharge their duties honestly and in accordance with the rules of law. This was emphasised in Pannalal Binjraj v. Union of India,(4) stress being laid on the power being vested not in any minor official but in top-ranking authority. In the circumstances, the absence of a provision for appeal or revision can be of no consequence.
Turning now to the main question, the contention is that s. 14B of the Act does not authorise levy of any penal damages, i.e., a penalty or fine but deals with the power to recover damages. It is not the power to impose a penalty on the defaulting employer though the 86 maximum amount of damages that can be recovered has been indicated in the section, it is submitted that the damages must have some correlation with the loss suffered as a result of delayed payments and the authority imposing damages must apply its mind to this aspect of the matter. The defaulter under s. 14B is, therefore, liable to pay damages which represents the actual loss, but not anything more, as such recovery would amount to penalty and that is not permitted under the section. In support of his submissions, he has referred to certain authorities.
It is argued that the damages referred to in s. 14B is different from penalty or fine and is intended to compensate the loss to the beneficiaries of the Scheme. It has only the ordinary legal meaning of the term 'damages' viz. actual loss as in law of Contract or Tort. Thus the award of damages under s. 14B must be, in essence, the pecuniary reparation for loss or injury sustained by one person through the fault or negligence of another.
There is a conflict of opinion between different High Courts as to the meaning of the word 'damages' in s. 14B of the Act. According to some of the High Courts, the word 'damages' in s. 14B means actual loss to the beneficiaries. The view is that s. 14B clearly indicates that an employer is liable to pay damages, if he has made defaults in payment of the contribution. Any delay in paying the amount under s. 6 causes loss to the beneficiaries of the Scheme, such as loss of the interest and the like. This is the loss that is sought to be recovered from the defaulting employer for the purpose of indemnifying the beneficiaries of the Scheme, namely, the employees to the extent of the loss suffered by them. The defaulter u/s 14B is, therefore, liable to pay damages which represent the loss, but not anything more, as such recovery would amount to penalty, and that is not permitted under the section. It is, therefore, held by these High Courts that the damages to be imposed u/s 14B should have correlation with the loss suffered and that damages u/s 14B are intended to compensate the loss to the beneficiaries of the Scheme. With respect, these High Courts have obviously fallen into an error in reading the word 'damages' in s. 14B in isolation, by trying to construe the word in a purely legalistic sense. These High Courts have overlooked that we are not concerned in interpreting what damages means in the realm of Contract or Tort but the word had to be given its true meaning, in consonance with the objects and purpose of the Legislation.
The learned Additional Solicitor General brought to our notice the conflict of opinion between the different High Courts on the construction of the word 'damages' used in s. 14B, and submitted that this has 87 given rise to confusion in the mind of those charged with the duty of administering the Act. He wants that the conflict should be resolved by placing a proper construction on the word 'damages' in s. 14B, in the larger public interest, as the question is one of frequent occurrence. He rightly contends that the word 'damages' in s. 14B must, in the context in which it appears, means penal damages i.e. a penalty and not merely actual loss to the beneficiaries. He submits that if the word 'damages' appearing therein, were to mean actual loss to the beneficiaries and not anything more, as some of the High Courts have held, it would make the Act unworkable. He also points out that some of the High Courts have taken a view to the contrary. According to these High Courts, the expression 'damages' is, in substance, a penalty imposed on the employer for the breach of the statutory obligation. The object of the Legislature in enacting s. 14B is clearly to punish the recalcitrant employers.
The traditional view of damages as meaning actual loss, does not take into account the social content of a provision like s. 14B contained in a socio-economic measure like the Act in question. The word 'damages' has different shades of meaning. It must take its colour and content from its context, and it cannot be read in isolation, nor can s. 14B be read out of context. The very object of the Legislation would be frustrated if the word 'damages' appearing in s. 14B of the Act was not construed to mean penal damages. The imposition of damages u/s. 14B serves a two-fold purpose. It results in damnification and also serves as a deterrent. The predominant object is to penalise, so that an employer may be thwarted or deterred from making any further defaults.
The expression 'damages' occurring in s. 14B is, in substance, a penalty imposed on the employer for the breach of the statutory obligation. The object of imposition of penalty u/s 14B is not merely 'to provide compensation for the employees'. We are clearly of the opinion that the imposition of damages u/s 14B serves both the purposes. It is meant to penalise defaulting employer as also to provide reparation for the amount of loss suffered by the employees. It is not only a warning to employers in general not to commit a breach of the statutory requirements of s. 6, but at the same time it is meant to provide compensation or redress to the beneficiaries i.e. to recommence the employees for the loss sustained by them. There is nothing in the section to show that the damages must bear relationship to the loss which is caused to the beneficiaries under the Schemes. The word 'damages' in s. 14B is related to the word 'default'. The words used in s. 14B are 'default in the payment of contribution' and, therefore, 88 the word 'default' must be construed in the light of Para 38 of the Scheme which provides that the payment of contribution has got to be made by the 15th of the following month and, therefore, the word 'default' in s. 14B must mean 'failure in performance' or 'failure to act.' At the same time, the imposition of damages u/s 14B is to provide reparation for the amount of loss suffered by the employees.
The construction that we have placed on the word 'damages' appearing in s. 14B of the Act, is in accord with the intent and purpose of the Legislation. It was brought on the statute book by Act 37 of 1953, the objects and reasons so far material, read:-
"There are also certain administrative difficulties to be set right. There is no provision for inspection of exempted factories nor is there any provision for the recovery of dues from such factories. An employer . . . can delay payment of Provident Fund dues without any additional financial liability. No punishment has been laid down for contravention of some of the provisions of the Act." (Emphasis supplied).
The object and purpose of the section is to authorise the Regional Provident Fund Commissioner to impose exemplary or punitive damages and thereby prevent employers from making defaults. The provision for imposition of damages at twenty- five per cent of the amount of arrear, however, did not prove to be effective. Accordingly, but Act 40 of 1973, the words 'not exceeding the amount of arrear' were substituted, for the words 'twenty-five per cent'. The necessity for making this change is brought out in the objects and reasons, a material portion of which reads:-
"STATEMENT OF OBJECTS AND REASONS:
(Act 40 of 1973) The working of the Employees' Provident Fund and Family Pension Fund Act, 1952 and the Employees' Provident Fund Scheme has revealed that the present provisions of the Act and the Scheme are not effective in preventing defaults in payment of contributions to the Employees Provident Fund or in recovery of the dues on that account. The result is that the amount of Provident Fund arrears recoverable from the employers has been streadily increasing. In 1959-60, the arrears which amounted to Rs. 3.65 crores, rose to Rs. 5.96 crores as on the 31st March 1967. The arrears stood at Rs. 14.6 crores on 31st March, 1970 and they have been risen to Rs. 20.65 crores as on the 31st March, 1972.89
2. The National Commission on Labour has recommended that in order to check the growth of arrears, penalties for defaults in payment of Provident Fund dues should be made more stringent and that the default should be made cognizable. In its 116th Report presented to Parliament in April 1970, the Estimates Committee has endorsed the recommendations made by the National Commission on Labour and has further suggested that Government should consider the feasibility of providing compulsory imprisonment for certain offences under the Act. Accordingly, it is proposed to amend the Act so as to render the penal provisions more stringent and to make defaults cognizable offences. Provision is also being made for compulsory imprisonment in cases of non-payment of contributions and administration or inspection charges. As recommended by the Estimates Committee, a further provision is being made to enable levy of damages equal to the amount of arrears from a defaulting employer." (Emphasis supplied). Each word, phrase or sentence is to be considered in the light of general purpose of the Act itself. A bare mechanical interpretation of the words devoid of concept or purpose will reduce most of legislation to futility. It is a salutary rule, well established, that the intention of the legislature must be found by reading the statute as a whole.
There appears to be a misconception that the object of imposition of penalty under s. 14B is not 'to provide compensation for the employees' whose interest may be injured, by loss of interest and the like. There is also a misconception that the damages imposed under s. 14B are not transferred to the Employees' Provident Fund and the Family Pension Fund, of the employees who may be adversely affected, but the amount is transferred to the General Revenues of the appropriate Government. We find that this assumption is wholly unwarranted. In assessing the damages, the Regional Provident Fund Commissioner is not only bound to take into account the loss to the beneficiaries but also the default by the employer in making his contributions, which occasions the infliction of damages. The learned Additional Solicitor General was fair enough to concede that the entire amount of damages awarded under s. 14B, except for the amount relatable to administrative charges, must necessarily be transferred to the Employees' Provident Fund and the Family Pension Fund. We hope that those charged with administering the Act will keep this in 90 view while allocating the damages under s. 14B of the Act to different heads. The employees would, of course, get damages commensurate with their loss i.e., the amount of interest on delayed payments; but the remaining amount should go to augment the 'Fund' constituted under s. 5, for implementing the Scheme under the Act.
The result, therefore, is that this writ petition fails and is dismissed with costs.
N.V.K. Petition dismissed.
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