Delhi High Court
M/S B.L. Kashyap And Sons Ltd. vs Central Board Of Trustee Employees ... on 16 July, 2021
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:17.07.2021
10:09:45
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16th July, 2021
+ W.P.(C) 6630/2021 & CM APPLs. 20822/2021, 20823/2021
M/S B.L. KASHYAP AND SONS LTD. ..... Petitioner
Through: Mr. A.K. Singla, Sr. Advocate with
Mr. S.K. Khanna, Mr. H.D. Sharma &
Mr. Akshit Sachdeva, Advocates.
versus
CENTRAL BOARD OF TRUSTEE EMPLOYEES PROVIDENT
FUND & ANR. ..... Respondents
Through: Mr. Rajesh Kumar, Advocate for
EPFO.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through video conferencing. CM APPL.20823/2021 (for exemption)
2. Allowed, subject to all just exceptions. Application is disposed of. W.P.(C) 6630/2021 & CM APPL.20822/2021 (for stay)
3. The present petition has been filed challenging order dated 28th April, 2021 passed by the Central Government Industrial Tribunal-cum-Labour Court (hereinafter referred as "CGIT"). By the said order, the levy of interest and imposition of damages under Sections 7Q and 14B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter, "Act") have both been upheld by the CGIT.
4. Insofar as the order under Section 7Q of the Act is concerned, the W.P.(C) 6630/2021 Page 1 of 4 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:17.07.2021 10:09:45 CGIT has held that the same is not appealable as two separate orders under Sections 14B and 7Q of the Act have been passed. Insofar as the appeal qua the imposition of damages under Section 14B of the Act is concerned, the CGIT has upheld the imposition of damages on the ground that mens rea has been established.
5. Mr. A.K. Singla, ld. Senior Counsel appearing for the Petitioner has made two submissions. Firstly, he submits that in terms of the judgment of the Supreme Court in Arcot Textile Mills Ltd. v. RPFC & Ors., (2013) 16 SCC 1, whenever a composite order is passed by the authority under Sections 7Q and 14B of the Act, the same would be appealable before the CGIT. In the present case, the show cause notice dated 26th June, 2018 is the same notice in respect of both interest and damages. Written submissions were also common. Even the order which has been passed was communicated by a common covering letter. Both orders bear the same number i.e., No.4841 and are dated 17th September, 2018. Ld. counsel further submits that the text of both these orders is also the same and therefore, they should be treated as a composite order though they may be shown to be separate orders. Thus, the CGIT is incorrect in holding that the orders would not be appealable.
6. Secondly, his submission is that the imposition of damages is also not valid inasmuch as, as per the notification, the authority which has imposed the damages does not have the power to do so. According to ld. Sr. counsel, the power to levy damages and order recovery are two distinct powers which have been conferred under the Act. Unless there is a specific notification for each of the issues, the authority cannot exercise the said power.
7. On behalf of the department, Mr. Rajesh Kumar, ld. Counsel submits W.P.(C) 6630/2021 Page 2 of 4 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:17.07.2021 10:09:45 that in this case, the Petitioner is a chronic defaulter and was involved in various fraudulent activities. In fact, there are criminal complaints pending against the Petitioner. He further submits that the computation chart would show that the Petitioner is a frequent defaulter and the number of defaults are several in number and huge amounts are involved. He thus submits that he would like to file a reply to this petition and place on record relevant documents.
8. The Court has perused the impugned order. Insofar as the arguments qua the appealable nature of an order passed under Section 7Q of the Act is concerned, there is no doubt that the orders, though passed separately, bear the same number and all the proceedings before the authority have been common, commencing from the show cause notice till the final order.
9. Thus, this Court is of the opinion that the appeal under Section 7Q of the Act ought to have been decided by the CGIT on merits. However, in this case, since the matter is composite in nature and the damages under Section 14Q of the Act have been upheld by CGIT, no useful purpose would be served in remanding the matter back to the CGIT.
10. The other feature of this case that this Court notices is that qua almost every default, even if there is a delay of a few days, both interest and damages are levied under Sections 7Q and 14B of the Act. This Court would like to examine this issue as to whether damages were leviable in respect of all the defaults or only some of the defaults where the deposits are considerably delayed.
11. Issue notice. Notice is accepted by Mr. Rajesh Kumar, ld. Counsel for the Respondents. Let the counter affidavit be filed within six weeks. Rejoinder thereto, if any, be filed within four weeks thereafter.
W.P.(C) 6630/2021 Page 3 of 4 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:17.07.2021 10:09:4512. The total amount of levy by way of interest and damages is to the tune of Rs.4.37 crores. Accordingly, subject to the deposit of a sum of Rs.2 crores before the ld. Registrar General of this Court, the impugned order shall remain stayed. The said deposit shall be made within a period of 6 weeks and shall be kept in the form of an FDR on auto renewal mode. If the Respondent-authority is able to identify any of the beneficiaries, the Respondent is permitted to move an application seeking release of pro-rata amount in this regard.
13. List before the Registrar on 28th September, 2021 for completion of pleadings.
14. List before Court on 30th October, 2021.
PRATHIBA M. SINGH JUDGE JULY 16, 2021/dk/T/Ad W.P.(C) 6630/2021 Page 4 of 4