Kerala High Court
Employees' State Insurance ... vs Hmt Ltd on 9 January, 2012
Author: V. Chitambaresh
Bench: V.Chitambaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
MONDAY, THE 9TH DAY OF JANUARY 2012/19TH POUSHA 1933
WPC.No. 18242 of 2011 (E)
======================
PETITIONER(S)
=============
J.RADHAKRISHNA PILLAI, PROPRIETOR,CHOTHY ENTERPRISES
EDAVATTOM,VELLIMON P.O., KUNDARA, KOLLAM-691511.
BY ADVS.SMT.A.K.PREETHA
SRI.ANIL NARAYANAN
SMT.V.K.REMASMRITHI
RESPONDENT(S)
=============
1. EMPLOYEES PROVIDENT FUND ORGANIZATION,
SUB REGIONAL OFFICE,PONNAMMA CHAMBERS I
PARAMESWAR NAGAR, OPPOSITE ARCHANA-ARADHANA
THEATRE, KOLLAM-691001, REP. BY THE REGIONAL,
PROVIDENT FUND COMMISSIONER.
2. THE ASSISTANT PROVIDENT FUND
COMMISSIONER, EMPLOYEES PROVIDENT FUND
ORGANIZATION, SUB REGIONAL OFFICE
PONNAMMA, CHAMBERS, PARAMESWAR NAGAR
OPPOSITE, ARCHANA-ARADHANA THEATRE,
KOLLAM-691001.
3. M/S.PUNJAB NATIONAL BANK, CHINNAKKADA
KOLLAM, REP. BY ITS BRANCH MANAGER.
BY ADV. SRI.C.AJITH KUMAR
BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR,SC,EPF ORGN.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09-01-2012 , THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
tss
W.P.(C) NO.18242/2011
APPENDIX
PETITIONER'S EXHIBITS
P1:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE
2ND RESPONDENT DTD. 15.3.2011.
P2:- COPY OF THE ORDER DTD. 4.4.2011 PASSED BY THE 2ND RESPONDENT.
P3:- COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT TO THE 3RD
RESPONDENT UNDER SECTION 8F DTD. 4.7.2011.
RESPONDENT'S EXHIBITS
NIL:-
TRUE COPY
P.A. TO JUDGE
tss
V. CHITAMBARESH, J
--------------------------------
WP(C) NO. 18242 OF 2011
------------------------------------
Dated this the 9th day of January, 2012
JUDGMENT
Ext.P1 is the objection filed by the petitioner to the proposal to levy damages for non payment of contribution to Employees' Provident Fund in time. But it is seen that the Assistant Provident Fund Commissioner as per Ext.P2 order has mechanically imposed damages under Section 14 B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 in addition to interest under Section 7 Q of the said Act. None of the contentions raised in Ext.P1 have been dealt with in detail and a total non application of mind is well evident by mere reading of Ext.P2 order of the Assistant Provident Fund Commissioner.
2. It is settled by a long line of decisions that existence of mens rea or actus reus is essential and is a necessary ingredient for levy of damages in proceedings of this nature. I am fortified in this view by the decision in 2 WP(C) No. 18242 of 2011 Employees' State Insurance Corporation Vs. HMT Ltd. and another [(2008) 3 SCC 35] and the decision of the High Court of Delhi in WP(C) No. 10387/2006. Ext.P2 order in the instant case does not anywhere find the existence of mens rea or actus reus. Therefore the imposition of damages and interest mechanically is bad in law.
3. The time for filing an appeal to the Employees' Provident Fund Appellate Tribunal has run out. Even the permissible period for condonation of delay has expired. The petitioner cannot therefore be relegated to the alternate remedy. That is also a sufficient reason for me to interfere with Ext.P2 order (see M/s. Panopharam Vs. Union of India [ILR 2010 (2) Ker. 909]. The petitioner had already remitted a sum of Rs.1,58,444/- towards interest under Section 7Q of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. The said amount shall be given credit to when fresh orders are passed by the Assistant Provident Fund Commissioner after considering Ext.P1 objection in a proper perspective. I quash Ext.P2 order of the 3 WP(C) No. 18242 of 2011 Assistant Provident Fund Commissioner for this purpose and remit the matter to the second respondent for denovo consideration.
The writ petition is disposed of as above.
V. CHITAMBARESH JUDGE ncd