Kerala High Court
M/S. Hope Plantations vs State Of Kerala on 14 October, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY,THE 5TH DAY OF JANUARY 2016/15TH POUSHA, 1937
Crl.MC.No. 2199 of 2015 ()
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CC.NO. 408/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PEERMADE
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PETITIONERS/ACCUSED NO. 1 TO 3 :
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1. M/S. HOPE PLANTATIONS
LADRUM ESTATE, PERMADE
IDUKKI-685531
REPRESENTED BY P.K. PODDAR
MANAGING DIRECTOR, M/S.PODDAR UDYOG LTD.,
HOPE PLANTATIONS, HONGKONG HOUSE 31
BBD BAGH (S) KOLKATTA-700 001,
WEST BENGAL.
2. SHRI.P.K.PODDAR
MANAGING DIRECTOR, M/S.PODDAR UDYOG LTD.,
HOPE PLANTATIONS, HONGKONG HOUSE
31 BBD BAGH (S) KOLKATTA-700 001,
WEST BENGAL.
3. SHRI.E.B.SETHNA
DIRECTOR, M/S.PODDAR UDYOG LTD., HOPE PLANTATIONS
RED BROOK AVENUE, POTTER AVENUE, KOTAGIRI ROAD
COONOOR, TAMIL NADU - 643 101.
BY ADV. SRI.V.B.HARI NARAYANAN
RESPONDENTS/COMPLAINANTS :
---------------------------------------------------
1. STATE OF KERALA
REP. BY ITS PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM-682031.
2. ENFORCEMENT OFFICER
EMPLOYEE'S PROVIDENT FUND ORGANIZATION
DISTRICT OFFICE (IDUKKI), PANCHAYATH OFFICE BUILDING
MUNNAR-685612.
R1 BY PUBLIC PROSECUTOR SRI. P.V. ELIAS
R2 BY ADV. SRI.JOY THATTIL ITOOP, SC
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23-12-2015,
ALONG WITH CRL.M.C. NO. 2198/2015 &CONNECTED CASES, THE COURT
ON 05-01-2016 PASSED THE FOLLOWING:
...2/-
Crl.MC.No. 2199 of 2015 ()
------------------------------------
APPENDIX
ANNEXURE A1: A COPY OF THE LETTER DATED 14.10.2008 SHOWING THE
ARREARS DUE ISSUED BY PF DEPARTMENT.
ANNEXURE A2: A COPY OF THE PROPOSAL TOGETHER WITH THE LIST OF
CRIMINAL CASES SUBMITTED BEFORE THIS HON'BLE COURT.
ANNEXURE A3: A COPY OF THE JUDGMENT IN W.A.NO.1197/2009 DATED
14.8.2009.
ANNEXURE A4: A COPY OF THE ORDER DATED 23.11.2009 IN R.P.NO.846/2009.
ANNEXURE A5: A COPY OF THE STATEMENT SHOWING THE REMITTANCE
MADE BY THE IST PETITIONER.
ANNEXURE A6: A COPY OF THE PRIVATE COMPLAINT IN C.C.NO.408/2012.
ANNEXURE A7: A COPY OF 7A PROCEEDINGS DATED 8.2.2008.
ANNEXURE A8: A COPY OF SANCTION FOR PROSECUTION DATED 16-10-2012.
ANNEXURE A9: A COPY OF JUDGMENT IN WP(C) NO. 19934/14 AND
CONNECTED CASE DATED 19-3-14.
ANNEXURE A10: A COPY OF THE CHALLAN SHOWING REMITTANCE OF
RS. 35,00,000 TOWARDS DUES.
ANNEXURE A11: A COPY OF DEMAND DRAFT DATED 16-9-2008.
ANNEXURE A12: A COPY OF THE CHALLAN DATED 17-10-2008 SHOWING
REMITTANCE TOWARDS PF DUES.
ANNEXURE A13: A COPY OF THE CHALLAN DT. 23-4-2009.
ANNEXURE A14: A COPY OF THE CERTIFICATE ISSUED BY SBT DATED 30-9-15.
ANNEXURE A15: A COPY OF THE CERTIFICATE DATED 4-5-2010 ISSUED BY SBT.
ANNEXURE A16: A COPY OF THE CERTIFICATES SHOWING REMITTANCE OF
AMOUNTS IN 2008/09.
ANNEXURE A17: A COPY OF ACKNOWLEDGEMENT DT. 8-2-2013.
ANNEXURE A18: A COPY OF THE LETTER DATED 26-2-2013.
ANNEXURE A19: A COPY OF SALE PROCLAMATION DATED 19-11-2007.
ANNEXURE A20: A COPY OF THE CERTIFICATE ISSUED BY SBI.
(Contd..)
Crl.MC.No. 2199 of 2015 ()
ANNEXURE A21: A COPY OF THE DETAILS OF DUES FURNISHED ALONG WITH
SALE PROCLAMATION DATED 19-11-2007.
ANNEXURE A22: A COPY OF THE DETAILS OF DUES FURNISHED ALONG WITH
SALE PROCLAMATION DATED 16-10-2008.
ANNEXURE A23: A COPY OF THE DETAILS OF DUES FURNISHED ALONG WITH
SALE PROCLAMATION DATED 3-3-2007.
RESPONDENT(S)' ANNEXURES :
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ANNEXURE R2(a) COPY OF THE TABLE OF DUES PAID AND PAYABLE FOR THE
PERIOD UPTO 04/2010.
ANNEXURE R2(b) COPY OF THE TABLE OF DUES PAID AND PAYABLE FOR THE
PERIOD UPTO 04/2010.
ANNEXURE R2(c) TABLE OF DETAILS OF THE REMITTANCES MADE AS PER
ANNEXURE A16-A18 AND DETAILS OF ITS ADJUSTMENTS.
ANNEXURE R2(c) COPY OF THE VERIFICATION REPORT OF THE
REPRESENTATIVES.
ANNEXURE R2(d) COPY OF THE COPIES OF THE RECOVERY REGISTER HANDED
OVER TO THE PETITIONER.
ANNEXURE R2(e) COPY OF THE ACKNOWLEDGEMENT OF THE RECEIPT OF THE
DOCUMENTS BY THE PETITIONER.
ANNEXURE R2(f) COPY OF THE STATEMENT EVIDENCING REMITTANCES MADE
ON 4.6.2008 AND 16.9.2008 AND ITS ADJUSTMENTS.
//TRUE COPY//
P.S. TO JUDGE
Mn
ALEXANDER THOMAS, J.
==================
Crl.M.C.Nos.2199, 2189, 5403, 5405, 5402, 5404,
5406, 5407, 5408, 5409, 5410, 2197, 2198, 2200, 1609,
2307, 2308, 2309 & 2310 of 2015
Dated===================2016
this the 5th day of January,
O R D E R
In all these 19 cases, the first petitioner is a company covered under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 and is obliged to remit employees' contribution in respect of the Provident Fund (PF) and the Employees' Pension Contribution. The 2nd and 3rd petitioners are the Managing Director and the Director respectively of the first petitioner company. The company is engaged in running of tea plantations at Peerumedu and it is the case of the petitioners that due to the reasons beyond their control including sudden fall of prices in the international market, the business of the company suffered heavy losses and resultantly there was default in payment of contributions due under the aforesaid Act for the period from 2000 to 2008. The respondent Employees' Provident Fund Crl.M.C.2199/15 etc. - : 2 :-
Organization (EPFO) had initiated recovery action for realisation of the dues under Sec.7A principal dues, Sec.7Q interest and Sec.14B damages for the period from March 2000 to June 2008. The petitioner company had challenged the initiation of such coercive action by filing Writ Petition as W.P.(C) No.12413/2009 before this Court. Their prayer for grant of instalment facility for paying off the dues was not conceded to by the learned Single Judge in the judgment dated 25.5.2009 in W.P.(C)No.12413/2009. Being aggrieved by the same, the petitioners had preferred Writ Appeal W.A.No.1197/2009 to impugn the judgment in W.P.(C) No.12413/2009. The Division Bench of this Court considered Anx.A-2 proposal submitted by the petitioner company for clearing off the dues in instalments. The proposal submitted by the petitioner company, which was considered by the Division Bench, provided as follows:
"1. The appellant undertakes to remit the actual dues including arrears as on date in 6 instalments. The 1st instalment of Rs.50,00,000/- shall be paid on or before 15th of October 2009. The balance amount after deducting the remittances already made by the appellant as per various orders of this Hon'ble Court shall be paid in 5 equal monthly instalments starting from 1st December 2009.
2. The interest payable under Section 7Q shall be paid in 36 equal monthly instalments.
3. The appellant shall submit a result before the Central Board of Trustees for 100% waiver of damages assessed under Section 14 (B) Crl.M.C.2199/15 etc. - : 3 :-
within a period of 4 weeks from today. The Central Board of Trustees, New Delhi may be directed to consider the same sympathetically and favourably after giving an opportunity of being heard to the appellant and pass favourable orders within a further period of 2 months.
4. All the prosecution proceedings initiated against the Company and its Directors shall be withdrawn upon receipt of the payments as mentioned above. In the meanwhile the proceedings now pending before the Judicial 1st Class Magistrate Court I, Peerumedu shall be kept in abeyance."
2. The Division Bench of this Court was inclined to allow the prayer of the petitioners to pay off their Sec.7A principal dues in six instalments, but held that the prayer of the petitioners to clear off the Sec.7Q interest in 36 equal monthly instalments cannot be conceded to. The Division Bench of this Court as per Anx.A-3 judgment dated 14.8.2009 in W.A.No.1197/2009 permitted the petitioners herein to clear off the Sec.7A principal dues in six monthly instalments, the first instalment of which was directed to be paid on or before 15.10.2009 and thereafter the balance in 5 equal monthly instalments starting from 1st of December 2009, the dues of which have to be paid on or before the 10th of every month concerned. Further, it was ordered that the dues by way of Sec.7Q interest shall be paid in 24 equal monthly instalments starting from October 2009. Further, the appellants therein/petitioners herein were permitted to move the Central Board of Trustees in the matter Crl.M.C.2199/15 etc. - : 4 :-
of waiver of Sec.14B damages and it was ordered that in the event of such representation being filed, the same was directed to be considered by Central Board of Trustees and it was further ordered that until a decision is taken as directed above, there shall be no levy of Sec.14B damages. It may be noted that 140 criminal cases were launched by the respondent EPFO against the petitioner company for the alleged non-clearance of Sec.7A principal dues. In that aspect of the matter, the Division Bench of this Court as per Anx.A-3 judgment recorded the submission made on behalf of the respondent EPFO that on clearing the dues, the aforestated criminal cases will be withdrawn. Further, it was made clear that in the event of default of any two consecutive instalments, either in the matter of principal dues under Sec.7A or in matter of interest under Sec.7Q, it will be open to the respondents to proceed with the impugned recovery by coercive steps, etc. With these observations, Writ Appeal No.1197/2009 was finally disposed of as per Anx.A-3 judgment rendered on 14.8.2009. Apprehending that despite Anx.A-3 judgment, the respondent EPFO might proceed against the petitioner company in the 140 criminal complaints referred to above, the petitioners herein had filed Review Petition, as Crl.M.C.2199/15 etc. - : 5 :-
R.P.846/2009 arising out of Writ Appeal No.1197/2009. The Division Bench of this Court, as per Anx.A-4 order dated 23.11.2009, taking cognizance of the apprehension raised by the petitioners herein that despite Anx.A-3 judgment, criminal proceedings in the aforestated 140 criminal complaints pending before the Judicial First Class Magistrate's Court-I and Judicial First Class Magistrate's Court-II, Peerumade will be continued, had made it clear that those cases may be taken up only if moved by the respondent EPFO on any default being committed by the petitioner company as stated in the Writ Appeal. The Division Bench in Anx.
A-4 order had also referred to the interim order dated 28.8.2009 passed by the Division Bench staying trial of those criminal complaints. It is common ground of both sides that the total amount by way of Sec.7A principal dues that should have been cleared by the petitioner company within the time limit granted by the Division Bench in Anx. A-3 judgment, comes to Rs.3,54,09,687/- as mentioned in Anx.A-1 dated 14.10.2008. It is the specific case of the petitioners that they have actually cleared more than the aforestated amount of Rs.3,54,09,687/- within the time limit granted by the Division Bench in Anx.A-3 judgment and Crl.M.C.2199/15 etc. - : 6 :-
that they have also cleared Sec.7Q interest within the time limit granted in Anx.A-3 Division Bench judgment. The respondent EPFO has no dispute that the petitioner company has already cleared the Sec.7Q interest in 24 equal monthly installments granted in Anx.A-3 judgment. The specific plea of the petitioner company is that they have paid a total amount of Rs. 3,85,00,000/- by way of Sec.7A dues covered by Anx.A-3 judgment within the time limit granted therein and the details in that regard are tabulated in Anx.A-5.
3. The respondent EPFO would contend that the payments said to have been made on 4.6.2008 and 16.9.2008 as per Anx.A-5 coming to a total amount of Rs. 65 lakhs as mentioned in Anx.A-5 is in respect of Sec.7A principal dues paid by the petitioner company and fully adjusted prior to the issuance of Anx.A-1 dated 14.10.2008. Their main objection is that the said payments in terms of serial Nos.1 and 2 of Anx.A-5 are admittedly paid by the petitioners on 4.6.2008 and 16.9.2008, which is before 14.10.2008 (date of issuance of Anx.A-1) and that therefore, the total amount by way of Sec.7A principal dues paid by the petitioner company in terms of Anx.A-3 Division Bench judgment comes only to Crl.M.C.2199/15 etc. - : 7 :-
Rs.3,20,000/-(viz.,Rs.3.85 crores - Rs.65 lakhs=Rs.3.2crores) and therefore, the petitioner company has not fully paid the amount of Rs.3,54,09,687/- mentioned in Anx.A-3 judgment dated 14.8.2008. On this premise, the respondent EPFO has also instituted additional 19 criminal complaints against the petitioner company in respect of the alleged non-payment of the dues covered by Anx.A-1 dated 14.10.2008, which is the subject matter of Anx.A-3 judgment. The petitioners in the 19 Criminal Miscellaneous Cases have mainly challenged the institution of these 19 criminal cases, which have been instituted over and above the 140 criminal complaints mentioned above, which have been referred in Anx.A-3 judgment. According to the petitioners, they have fully paid the Sec.7A principal dues of Rs.3,54,09,687/- within the time limit granted by the Division Bench as per Anx.A-3 judgment and therefore, the continuance of these impugned criminal proceedings against the petitioner company is liable to the interdicted by this Court by resort to exercise of the powers conferred under Sec.482 of the Code of Criminal Procedure as the said criminal complaints have been launched in flagrant violation of the directions given by the Division Bench in Anx.A-3 judgment.
Crl.M.C.2199/15 etc. - : 8 :-
4. Heard Sri.V.B.Harinarayan, learned counsel appearing
for the petitioners in these cases, Sri.Joy Thattil Itoop, learned Standing Counsel appearing for the respondent-EPFO in the above cases and the learned Government Pleader appearing for the State of Kerala.
5. It is beyond dispute that in case Sec.7A principal dues for the periods covered by Anx.A-3 Division Bench judgment have already been paid by the petitioners within the time limited stipulated by Anx.A-3 judgment, then the impugned prosecutions at Anx.A-6 in these cases are not maintainable and are liable to be interdicted. The respondent EPFO themselves have given a solemn undertaking before the Division Bench of this Court that they will withdraw the entire criminal prosecutions against the petitioner company in case the petitioner company paid Sec.7A dues. It is fairly conceded by the respondent EPFO that the petitioner company has already paid the Sec.7Q interest amounts in 24 equal monthly instalments within the time limit granted by the Division Bench in Anx.A-3 judgment. So the only factual issue to be ascertained is as to whether the petitioner company has paid the Sec.7A principal due amount of Rs. 3,54,09,687/- as mentioned in Anx.A-1 dated Crl.M.C.2199/15 etc. - : 9 :-
14.10.2008 within the time limit stipulated in the Division Bench in Anx.A-3 judgment. The petitioners would venture to submit that as a matter of fact, they have paid more than the dues envisaged in Anx.A-3 judgment within the time limit granted by the Division Bench and in that regard, they have given details in Anx.A-5, wherein they have claimed that the total amount paid by them by way of Sec.7A principal dues as covered by Anx.A-3 judgment in respect of liabilities covered by Anx.A-1 comes to Rs. 3.85 crores, whereas the liability covered by Anx.A-1 comes only to Rs.
3,54,09,687/-. On the other hand, the learned Standing Counsel for the EPFO would submit that the amounts shown as paid on 4.6.2008 and 16.9.2008 as mentioned in Anx.A-5 cannot be reckoned for the liabilities covered by Anx.A-3 Division Bench judgment, as the said dates of payments of 4.6.2008 and 14.9.2008 are indisputably prior to 14.10.2008, viz., date of issuance of Anx.A-1 proceedings. It is pointedly argued by the respondent EPFO that the said payment of Rs.65 lakhs made on 4.6.2008 and 16.9.2008 as mentioned in serial No.1 and serial No.2 of Anx.A-5 were already adjusted to the then existing Sec.7A principal dues and it is only after adjusting the said Rs. 65 lakhs, that the total Crl.M.C.2199/15 etc. - : 10 :-
outstanding liability against the petitioners was quantified as Rs.3,54,09,687/- as per Anx.A-1 issued on 14.10.2008, which is issued after the said dates of payments on 4.6.2008 and 16.9.2008. In this regard, this Court had directed the respondent EPFO to furnish all the details to show as to how the said payment of Rs. 65 lakhs made on 4.6.2008 and 16.9.2008 as per serial Nos.1 and 2 of Anx.A-5 has been adjusted towards the Sec.7A principal dues. The respondent EPFO was also directed to ensure that a reasonable opportunity is afforded to an authorised representative of the petitioner company to inspect the documents and records so that the dispute in this area is fully settled. Pursuant to the directions issued by this Court, the respondent EPFO has filed an affidavit dated 11.12.2015, producing the details as to how the said total payment of Rs. 65 lakhs paid by the petitioner company on 4.6.2008 and 16.9.2008 has been adjusted. Anx.R-2(f) is the copy of the relevant extract from the registers and records of the EPFO.
The details in Anx.A-2(d) recovery register have been tabulated as Anx.R-2(f) for easy reference of the matter. A perusal of Anx.R-2(d) and Anx.R-2(f) would reveal that the total amount of Rs. 63,71,165/- has been adjusted as against Sec.7A dues and an Crl.M.C.2199/15 etc. - : 11 :-
amount of Rs. 1,28,835/- (out of Rs.15 lakhs remitted on 16.9.2008) has been deducted by the EPFO as recovery cost. It can be seen that the total amount adjusted as per Anxs.R-2(d) and R-2
(f) comes to Rs. 65 lakhs (Rs. 63,71,165 + Rs. 1,28,835 = Rs. 65 lakhs). Thus Anx.R-2(d) and Anx.R-2(f) would clearly show that after adjusting the aforestated payments made as serial No.1 and 2 of Anx.A-5, the total outstanding liability of the petitioner company by way of Sec.7A principal dues come to Rs. 3,54,09,687/- as on 14.10.2008 and it is this amount that has been quantified in Anx.A-
1 dated 14.10.2008. Therefore, the submission made by the respondent EPFO that the amount of Rs. 65 lakhs shown as serial Nos.1 and 2 of Anx.A-5 paid by the petitioner on 4.6.2008 and 16.9.2008 was adjusted to the liabilities that existed prior to the issuance of Anx.A-1 dated 14.2.2008 and it is after adjusting this amount that the total outstanding Sec.7A dues liabilities have quantified as Rs.3,54,09,687/- as per Anx.A-1 on 14.10.2008 appears to be correct. Thus, after deducting the aforestated amount of Rs.65 lakhs as per serial Nos.1 and 2 of Anx.A-5, the total amounts paid as per Anx.A-5 would come only to Rs. 3.2 crores (Rs. 3.85 lakhs - Rs. 65 lakhs = Rs. 3.2 crores). Whereas, the total Crl.M.C.2199/15 etc. - : 12 :-
outstanding dues come to Rs. 3,54,09,687/-. The learned counsel for the petitioners would submit that the grace period granted by the Division Bench to pay Sec.7A principal due amounts within six equal monthly instalments was upto 9.4.2010. Though initially the respondent E.P.F.O. had raised some objections as regards the acceptability of the payment as per serial No.12 of Anx.A-5 for an amount of Rs. 40 lakhs on the ground that the said payment was actually credited to the account of the E.P.F.O. only on 19.4.2010, the respondents have fairly withdrawn such objections. This is because Anx.A-15 certificate dated 4.5.2010 issued by the State Bank of Travancore would clearly show that the aforestated chalan payment was actually made by the petitioner company on 9.4.2010 itself. Presumably, the said payment remitted by the petitioner company on 9.4.2010 was credited by the State Bank of Travancore to the account of the E.P.F.O. only on 19.4.2010. Since the payment as per serial No.12 of Anx.A-5 was made by the petitioner company on 9.4.2010, there cannot be any objection as regards the acceptance of that payment as the time limit granted by the Division Bench was till 9.4.2010.
6. The relevant portion of Sec.7A dues mentioned in the tabular column attached to Anx.A-1 dated 14.10.2008 reads as follows:
Crl.M.C.2199/15 etc. - : 13 :-
Arrear (Certificate Dues)
S.l. Code Name of the Dues
No No Estt. Period Rs.
1 KR/395 Ladrum Estate 10/2000 to 11/07 64,35,865
2 395 A Hope G.M's Office 10/2000 to 12/07 30,01,191
3 396 Kaduakarnam Estate 3/2000 to 11/07 1,05,67,151
4 401 Gelenmary Estate 3/2000 to 11/07 1,38,03,205
5 5361 Hope Cardomon Division 3/2000 to 02/07 36,02,275
TOTAL 3,54,09,687
7. It would be profitable to refer to the tabular column of Anx.A-5, which shows the details of the payments made by the petitioner company upto 9.4.2010, which reads as follows:
HOPE PLANTATIONS, PROVIDENT FUND PAYMENT DETAILS ON OLD DUES S.l. Date of Glenmary Kudua 396 Landrum 395 Cardamom 5361 Staff/Exe Total Ref:-
No Payment 401 Rs. Rs. Rs.. 395A Rs..
Rs. Rs..
1 04.06.2008 1500000 1500000 150000 500000 5000000 Chellan
2 16.09.2008 1500000 1500000 DD No.221174
3 17.10.2008 400000 350000 350000 200000 200000 1500000 Chellan
4 18.04.2009 2500000 2500000 D.D.Handedover
to Advocate
5 23.04.2009 2500000 2500000 D..DHanded over
to pf Dept
6 22.06.2009 500000 500000 D.D Handed over
to Advocate
7 14.10.2009 1325679 1394383 1217074 446512 616352 5000000
8 01.12.2009 1167237 1196947 985802 286448 363566 4000000
9 01.01.2010 1304846 1095451 927733 238087 433883 4000000
10 01.02.2010 1670402 727007 249972 759582 593037 4000000
11 05.03.2010 1677001 584548 776758 961693 4000000
12 09.04.2010 1689627 473706 765129 1071538 4000000
Total 16057791 8414495 6580258 3778925 3668531 38500000
8. The petitioners have a specific case that that Anx.A-16 Crl.M.C.2199/15 etc. - : 14 :-
series certificates issued by the State Bank of India/Travancore would clearly show that an amount of Rs.19,02,033/- has been paid on 17.10.2008 as per Anx.A-16(1), Rs.4,09,786/- has been paid on 2.12.2008 as per Anx.A-16(1), Rs.9,69,280/- has been paid on 23.10.2009 as per Anx.A-16(2), Rs.8,04,143/- has been paid on 16.10.2009 as per Anx.A-16(3), Rs.10,89,379/- has been paid on 12.09.2009 as per Anx.A-16(4) and Rs. 2,79,351/- has been paid on 23.1.2009 as per Anx.A-16(5) and all these payments have been made by the petitioners prior to the cut of date of 9.4.2010 stipulated in Anx.A-3 judgment and that these amounts should have been adjusted as against the balance dues covered by Anx.A-1 and instead of that, the respondent EPFO has arbitrarily adjusted the aforestated payments made by the petitioners as per Anx.A-16 series certificates for the months of September, 2008, August, 2009, November, 2008 and June, 2008 and October, 2008, etc. It is the specific contention of the petitioners that if these payments covered by Anx.A-16 series certificates issued by the State Bank of India are also reckoned, then the total amount paid by the petitioners will be much more than the total liability of Rs.3,54,09,687/- mentioned in Anx.A-1 dated 14.10.2008.
Crl.M.C.2199/15 etc. - : 15 :-
9. Though the petitioner has also relied on Anxs.A-17 and A-18 certificates issued by the State Bank of India, the said payments are admittedly made on 2.2.2013 and 22.2.2013 and therefore the said payments need not be reckoned at all for the present purpose. The respondent E.P.F.O has filed an additional counter statement dated 30.11.2015 and has produced Anx.R-2(c) chart/statement showing the details of said payments made by the petitioner as per A-16 series of certificates. The said details given as per serial Nos.1 to 6 of Anx.R-2(c) chart reads as follows (Serial Nos.7 & 8 are in respect of Anxs.A-17 & 18 and are not relevant for the present purpose and hence they are not included in the extract given below):
S.l. Annexur Amount remitted Remarks No. e by the petitioner 1. A16 Rs.19,02,033/- Annexure
Dated 17.10.2008 Out of this amount Rs.15,00,000/- was already included inRemaining A12. Details are shown in Annexure R2(b).
Rs.4,02,033/- is remitted against the dues for the month 09/08. this period is not involved in the judgment in WA 1197/09.
2. A16 Rs.4,09,786/- This remittance is made against the dues for the month 09/2008.
Dated 02.12.2008 This period is not involved in the judgment in WA 1197/09.
3. A16/2 Rs.9,69,280/- This remittance is made against the dues for the months fo 08/2009.
Dated 23.10.2009 This period is not involved in the judgment in WA 1197/09.
4. A16/3 Rs.8,04,143/- This remittance is made against the dues for the month of 11/2008.
Dated 16.10.2009 this period is not involved in the judgment in WA 1197/2009.
5. A16/4 Rs.10,89,379/- This remittance is made against the dues for the month of 06/2008 Dated 12.09.2009 and 10/2008. this period is not involved in the judgment in WA 1197/09.
A16/5 Rs.2,79,351/- This remittance amount not tallied with the office records. This can 6 Dated 23.01.2009 be verified on production of the 8 challans by the Petitioner. It has been clearly stated by the respondent-EPFO in their additional Crl.M.C.2199/15 etc. - : 16 :-
counter statement as well as Anx.R-2(c) that out of the amount of Rs.19,02,033/- paid by the petitioner on 17.10.2008 as per A-16 an amount of Rs.15 Lakhs was already included in Anx.A16 and the remaining amount of Rs.4,02,033/- has been remitted against dues for the month of September, 2008 and that the said period is not involved in Anx.A-3 judgment. Further it is stated that out of Rs.4,09,786/- remitted by the petitioner on 2.12.2008 as per A16, the said dues is adjusted for the month of September, 2008 and this period is also not involved in Anx.A-3 judgment. Further that out of the amount of Rs.9,69,280/- remitted on 23.10.2009 as per A- 16/2, this remittance is made against the dues for the month of August, 2009. That period is also not involved in Anx.A-3 judgment. Out of the amount of Rs.8,04,143/- remitted by the petitioner on 16.10.2009 as per A-16/3, the same has been adjusted in the dues for the month of November, 2008 and that this period is also not involved in Anx.A-3 judgment. Further an amount of Rs.10,89,379/- remitted on 12.9.2009 as per A-16(4), the said remittance is made for the dues for the month of June, 2008 and October, 2008 and this period is not involved in Anx.A-3 judgment. Lastly, the amount of Rs.2,79,351/- remitted by the Crl.M.C.2199/15 etc. - : 17 :-
petitioner on 23.1.2009 as per A-16/5, the said remittance does not tally with the office records and this can be verified on production of the challans by the petitioner, etc. During the course of hearing, this Court had observed that if the respondent have any doubts regarding the payment shown as serial No.6 of Anx.R-2(c) coming to Rs.2,79,351/- as covered by A-16/5 certificate issued by State Bank of Travancore, then this Court could direct the said State Bank to clarify as to whether the said payment was actually made or not. On further instructions, the learned standing counsel for the respondent-EPFO said that the since the said payment covered by serial No.6 amounting to Rs.2,79,351/- dated 23.1.2009 is covered by A-16/5 certificate issued by the State Bank of Travancore, they are not raising any objection as regards the said payment. As regards serial Nos.1 to 5 of Anx.R-2(c), the specific contention of the respondent-EPFO is that the said payments referred to above for seal Nos.1 to 5 on Anx.R-2(c) has been adjusted for the periods subsequent to liability period covered by Anx.A-1. As can be seen from serial Nos.1 to 5 of Anx.A-1 dated 14.10.2008 issued by the respondent-EPFO, the liability period covered thereunder is from October-2000 to November-2007, October-2000 to December-2007, March-2000 Crl.M.C.2199/15 etc. - : 18 :-
to November-2007, March-2000 to November-2007 and March- 2000 to February-2007, respectively. Both sides would submit that the time limit granted by the Division Bench as per Anx.A-3 was up to 9.4.2010. The respondent in their counter statement as well as in Anx.R-2(c) chart would clearly admit that the payments covered by serial Nos.1 to 6 of Anx.R-2(c) has actually been remitted by the petitioner on 17.10.2008, 2.12.2008, 23.10.2009, 16.10.2009, 12.9.2009 and 23.1.2009 respectively, and this can also be seen from Anx.A-16 series of certificates issued by none other than State Bank of India/Travancore. Therefore, the respondent-EPFO also admits that the said payments are for liabilities towards Sec.7A principal dues. But the respondent's only objection is that though the date of remittance of the payments as per serial Nos.1 to 6 of Anx.R-2(c) are before the cut off date of 9.4.2010, the said remittance has actually been adjusted as against Sec.7A principal dues of the petitioner-Company for subsequent periods like September-2008, August- 2009, November-2008, June-2008 and October-2008 which are outside the liability period covered by serial Nos.1 to 5 of Anx.A-1 and that therefore the said payment cannot be reckoned in respect of the liabilities covered by Anx.A-1.
Crl.M.C.2199/15 etc. - : 19 :-
The amount admitted by the respondent-EPFO as per serial Nos.1 to 6 come to Rs.39,53,972/- (viz., Rs.4,02,033 + Rs.4,09,786 + Rs.9,69,280 + Rs.8,04,143 + Rs.10,89,379 + Rs.2,79,351 = Rs.39,53,972/-). Therefore, if the aforesaid total payments coming to Rs.39,53,972/- covered by serial Nos.1 to 6 of Anx.R-2(c) are also reckoned, then the total amount paid by the petitioner by way of principal dues for the periods covered by Anx.A-1 would come to Rs.3.2 Crores + Rs.39,53,972/- = Rs.3,59,53,972/-, which is more than the total liability of Rs.3,54,09,687/- covered by Anx.A-1. The aforesaid objections raised by the respondent-EPFO to justify their stand that the aforestated payment covered by serial Nos.1 to 6 of Anx.R-2(c) cannot be reckoned for Anx.A-1 liability, has no legs to stand due to the following reasons:
10. Firstly, even if it is assumed that the aforestated payment coming to Rs.39,53,972/- covered by serial Nos.1 to 6 of Anx.R-2(c) is excluded, still the respondent would admit that the net payment made by the petitioner comes to Rs.3.2 Crores. The respondent would submit that the total amounts by way of Sec.7A principal dues allegedly not paid by the petitioner company as alleged in the initial 140 criminal cases comes to Rs.2,52,02,837/-.
Crl.M.C.2199/15 etc. - : 20 :-
The respondent would also point out that the total Sec.7A principal due amounts allegedly not paid by the petitioner company as raised in the present impugned 19 criminal complaints come to Rs.27,59,368/-. Thus, total Sec.7A principal due amounts allegedly not paid as per present 159 criminal complaints (original 140 cases + present 19 cases) come to Rs.2,79,62,205/-. The respondent-
EPFO would clearly admit that as of now the petitioner's company have already paid an amount of Rs.3.2 Crores within 9.4.2010, the time limit granted by the Division Bench as per Anx.A-3. It is their case that due to administrative delay they could not so far complete the steps for filing the rest of the proposed criminal complaints.
11. That apart, certain aspects borne out by Anx.A-9 judgment of this Court dated 19.3.2014 in W.P.(C).Nos.19934 and 28839/2013 are very crucial and relevant in this aspect of the matter. That case related to certain other off shoots emanating from Anx.A-3 Division Bench judgment as the petitioner was aggrieved by the respondent in adjusting the amounts paid by the petitioner company against Sec.7A principal dues towards Sec.14B damages. The petitioner contended therein that such adjustment is illegal and wrong in so far as Anx.A-3 Division bench judgment has Crl.M.C.2199/15 etc. - : 21 :-
clearly directed that steps for levying Sec.14B damages should be kept in abeyance until the matter is considered and decided by the Central Board of Trustee of the respondent-EPFO. This court in Anx.A-9 judgment has clearly recorded in para 6 of Anx.A-9 judgment, the submission of the respondent-EPFO that the remittance of the principal dues (covered by Sec.7A) as also Sec.7Q interest has been made by the petitioner company in accordance with the directions of the Division Bench judgment in W.A.No.1197/2009 and that what remains is only the liability towards Sec.14B damages which was directed to be considered by the Central Board of Trustees. Therefore, the respondent-EPFO has clearly taken the stand that the petitioner company has fully paid Sec.7A dues and 7Q interest in compliance with the directions of the Division Bench judgment in Anx.A-3. So the present objections of the respondent are raised without any bona fides.
12. Still further, this Court in para 6 of Anx.A-9 judgment has clearly held therein that subsequent to the clearance of the liability of provident fund dues prior to October, 2008 and interest under Sec.7Q as per the judgment of the Division Bench in W.A.No.1197/2009, any amounts paid have to be adjusted towards Crl.M.C.2199/15 etc. - : 22 :-
provident fund dues and Sec.7Q interest for the subsequent periods. Even now the respondent-EPFO would fully and fairly admit that entire Sec.7Q interest payable in terms of Anx.A-3 Division Bench judgment has already been remitted by the petitioner company within the time limit granted by the Division Bench. The levy of Sec.14B damages will have to await the consideration of that aspect of the matter and the decision thereon by the Central Board of Trustees as directed in Anx.A-3 judgment of the Division Bench. Therefore, any payment of the dues made by the petitioner company within the time limit of 9.4.2010 granted by the Division Bench should be adjusted only as against Sec.7A principal dues for the liability period covered by serial Nos.1 to 5 of Anx.A-1 dated 14.10.2008. It is only after exhausting that liability in that regard, that any further payment could be adjusted against the Sec.7A principal dues for the period subsequent to the liability periods covered by Anx.A-1. In the instant case, it is admitted by the respondent-EPFO that the petitioner company has made total payment of Rs.39,53,972/- covered by serial Nos.1 to 6 of Anx.R-2
(c) well before the cut off date of 9.4.2010 granted by the Division Bench. But, their objection is that the said amounts have been Crl.M.C.2199/15 etc. - : 23 :-
adjusted to liability periods subsequent to the periods covered by Anx.A-1. This action of the respondent-EPFO is plainly untenable in the light of the clear cut directives issued by this Court in para 6 of Anx.A-9 judgment. The aforesaid amount of 39,53,972/- covered by serial Nos. 1 to 6 of Anx.R-2(c) is bound to be adjusted towards Sec.7A principal dues covered by the liability period mentioned in serial Nos.1 to 5 of Anx.A-1 dated 14.10.2008. Thus, the total payment of Sec.7A principal dues made by the petitioner in terms of Anx.A-3 Division Bench judgment comes to Rs.3.2 Crores (covered by serial Nos.3 to 12 of Anx.A-5) + Rs.39,53,972/- (covered by serial Nos.1 to 6 of Anx.R-2(c)) thus totalling to Rs.3,59,53,972/-, which is indisputably more than the amount of Rs.3,54,09,687/- covered by Anx.A-1. Therefore, the impugned prosecutions in the instant 19 criminal complaints as well as 140 complaints are plainly and flagrantly violative of the directives issued by the Division Bench in Anx.A-3 judgment. Hence the impugned criminal proceedings are liable to be interdicted. However, this Court is of the considered opinion that sufficient attention should be focused on one crucial aspect of the matter so as to protect the interest of respondent-EPFO. Since the amount of Crl.M.C.2199/15 etc. - : 24 :-
Rs.39,53,972/- covered by serial Nos.1 to 6 of Anx.R-2(c) was earlier wrongly reckoned by the respondent-EPFO for subsequent liability period of September-2008, August-2009, November- 2008, June-2008, October-2008, etc., and the said amount should have been actually reckoned for the prior liability periods covered by serial Nos.1 to 5 of Anx.A-1, the petitioner-Company is bound to make actual payment in respect of the subsequent periods of September-2008, August-2009, November-2008, June-2008, October-2008, etc., as mentioned in serial Nos.1 to 6 of Anx.R-2(c). The total liability covered by Anx.A-1 comes to Rs.3,54,09,687/- and the amounts now reckoned to be paid for the said liability period comes to Rs.3,59,53,972/- as stated above. Therefore, obviously, there is excess amount of Rs.5,44,285/- paid by the petitioner (Rs.3,59,53,972- Rs.3,54,09,687 = Rs.5,44,285/-). The amounts covered by serial Nos.1 to 6 of Anx.R-2(c) comes to Rs.39,53,972/-. Therefore, after adjusting the aforesaid excess amount of Rs.5,44,285/-, the net amount to be paid by the petitioner for subsequent period covered by serial Nos.1 to 6 of Anx.R-2(c) comes to Rs.34,09,687/- (Rs.39,53,972 - Rs.5,44,285 = Rs.34,09,687). The learned counsel for the petitioner was directed Crl.M.C.2199/15 etc. - : 25 :-
by this court to get instructions from the petitioner Company as to the shortest time within which they can make the payment of the aforestated amounts of Rs.34,09,687/- towards the net liability in respect of Sec.7A principal dues for the subsequent period mentioned in the last column of serial Nos.1 to 6 of Anx.R-2(c). Today, when the matter was taken up for consideration, the learned counsel for the petitioner Company would submit that the petitioner Company would remit the aforestated amount of Rs.34,09,687/- on or before 30.1.2016. The respondent-EPFO was also directed to furnish instructions before this Court as to the course of action to be taken in these aspects of the matter. The learned standing counsel for the respondent-EPFO would submit that on the basis of the instructions from the respondent-EPFO that this Court may pass appropriate orders in the interest of justice and that the respondent-EPFO would comply with such directions that may be issued by this Court. Accordingly, it is ordered that the petitioners should remit the aforestated amount of Rs.34,09,687/- towards Sec.7A principal dues for the subsequent periods covered by the last column of serial Nos.1 to 6 of Anx.R-2(c) before 30.1.2016. The respondent E.P.F. authorities will be at liberty to levy interest on the Crl.M.C.2199/15 etc. - : 26 :-
aforestated payment in accordance with law. As the action of the respondent in adjusting the payment of Rs. 39,53,972/- covered by serial Nos.(1) to (6) of Anx.R-2(c) to the subsequent periods was clearly wrong and against the directives issued in para 9 of Anx.A-9 judgment, the respondent E.P.F. authorities concerned will take a just and fair decision as to whether to levy or waive Sec.14B damages on the aforestated payment to be made by the petitioners.
13. As regards 140 criminal complaints originally instituted by the respondent-EPFO (details of which are given by the respondent in Anx.R-2(g) filed along with their statement dated 11.12.2015) the matter in issue is already covered by Anx.A-3 Division Bench judgment. The respondent-EPFO has already given a solemn undertaking before the Division Bench in Anx.A-3 judgment that they would withdraw those cases in the event of the petitioner Company paying the Sec.7A dues within the time limit stipulated by the Division Bench. Further action in this regard should be taken by the respondent-EPFO in the light of Anxs.A-3 and A-4 judgment of the Division Bench as well as the observations made by this Court hereinabove.
14. In the light of these aspects, it is only to be held that the Crl.M.C.2199/15 etc. - : 27 :-
institution and continuance of 19 impugned criminal complains (which is the subject matter in these Crl.M.Cs.) are clearly and flagrantly in violation of the directives of the Division Bench in Anx.A-3 judgment and therefore the same is liable to be interdicted. Accordingly, it is ordered in the interest of justice that the impugned criminal complaints in these cases are quashed. Both sides will produce a certified copy of this order before the competent criminal court concerned. In case the petitioner Company does not pay the aforestated amount of Rs.34,09,687/- before 30.1.2016, then the respondent-EPFO will be at liberty to take further coercive steps for realisation of such due amounts with interest and it is also made clear that in such eventuality, the respondent will also be at liberty to levy Sec.14B damages for such amounts and to initiate criminal prosecution against the petitioner Company in respect of non-payment of the aforestated amount of Rs.34,09,687/-.
With these observations and directions, these Crl.M.Cs stand finally disposed of.
Sd/-
sdk+ ALEXANDER THOMAS, JUDGE
bkn/-
///True copy///
P.S. To Judge.
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sdk+ ALEXANDER THOMAS, JUDGE
&bkn
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