Rajasthan High Court - Jaipur
Raj Shiksha Karmi Board vs Assistant Provident Fund on 7 August, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 1913/2016
Rajasthan Shiksha Karmi Board, Through its Secretary, Shiksha
Sankul Premises, Vth Floor, Vth Block, J.l.n. Marg, Jaipur.
----Petitioner
Versus
Assistant Provident Fund Commissioner, Regional Office, Nidhi
Bhawan, Vigyan Nagar, Kota.
----Respondent
Connected With S.B. Civil Writ Petition No. 1914/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent S.B. Civil Writ Petition No. 1915/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent S.B. Civil Writ Petition No. 1917/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent S.B. Civil Writ Petition No. 1918/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent (Downloaded on 29/08/2019 at 10:59:28 PM) (2 of 10) [CW-1913/2016] S.B. Civil Writ Petition No. 1919/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent S.B. Civil Writ Petition No. 1920/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent S.B. Civil Writ Petition No. 1921/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent S.B. Civil Writ Petition No. 1922/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent S.B. Civil Writ Petition No. 1923/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent S.B. Civil Writ Petition No. 1924/2016 Raj Shiksha Karmi Board
----Petitioner (Downloaded on 29/08/2019 at 10:59:28 PM) (3 of 10) [CW-1913/2016] Versus Assistant Provident Fund
----Respondent S.B. Civil Writ Petition No. 1926/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent S.B. Civil Writ Petition No. 1927/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent S.B. Civil Writ Petition No. 1928/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent S.B. Civil Writ Petition No. 1929/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent S.B. Civil Writ Petition No. 1930/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent (Downloaded on 29/08/2019 at 10:59:28 PM) (4 of 10) [CW-1913/2016] S.B. Civil Writ Petition No. 1931/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent S.B. Civil Writ Petition No. 1932/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent S.B. Civil Writ Petition No. 1933/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent S.B. Civil Writ Petition No. 1934/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent S.B. Civil Writ Petition No. 1935/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent S.B. Civil Writ Petition No. 1936/2016 Raj Shiksha Karmi Board
----Petitioner (Downloaded on 29/08/2019 at 10:59:28 PM) (5 of 10) [CW-1913/2016] Versus Assistant Provident Fund
----Respondent S.B. Civil Writ Petition No. 1938/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent S.B. Civil Writ Petition No. 1939/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent S.B. Civil Writ Petition No. 1940/2016 Raj Shiksha Karmi Board
----Petitioner Versus Assistant Provident Fund
----Respondent For Petitioner(s) : Mr. Lokendra Singh Shekhawat For Respondent(s) : Mr. Nikhil Simlote HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Judgment / Order 07/08/2019
1. The present writ petitions have been filed by the petitioner with the following prayers:-
(i) by issuing an appropriate writ, order or direction the impugned order dated 11.09.2014(Annexure-3) passed by the Assistant P.F. Commissioner, Kota and impugned order (Downloaded on 29/08/2019 at 10:59:28 PM) (6 of 10) [CW-1913/2016] dated 03.11.2015(Annexure-4) passed by Employees Provident Fund Appellate Tribunal, New Delhi may kindly be quashed and set-aside;
(ii) by an appropriate order or direction the respondents be directed not to recover any damages or interest from the humble appellant against the E.P.F. Contribution;
(iii) Any other appropriate order or direction which this Hon'ble Court deems just and proper in the facts and circumstances of this case may kindly also be passed in favour of the petitioner.
2. The petitioner is a Board constituted by Government of Rajasthan and falls within the definition of Article 12 of the Constitution of India. The respondent, being an Assistant Provident Fund Commissioner, is an authority of the Union of India and also comes within the definition of Article 12 of the Constitution of India.
3. The petitioner is a principal employer of the establishment and is also a Board which is governed by the Sate of Rajasthan and formulated for uplifting the educational standard in the remote areas. The petitioner-Rajasthan Shiksha Karmi Board is an establishment to which the Employees Provident Fund & Miscellaneous Provisions Act, 1952 (hereinafter referred as the 'Act of 1952') applies and is required to pay the necessary contributions to the respondent within a period of 15 days of the close of every month as under:-
"(i) The provident fund contribution under Section 6 of the Act of 1952;
(ii) The family pension contributions under Section 6-A of the Act of 1952;
(iii) The Insurance Fund contribution under Section 6-C of the Act of 1952;
(iv) The Adm. Charges under Para 38 of the Employees Provident Fund Scheme, 1952, Employees Deposit Linked Insurance Scheme, 1976."
4. Mr. Lokendra Singh Shekhawat, learned counsel for the petitioner-Board submits that the petitioner-Board was running by foreign aid earlier but it was dissolved in the year 2005 and (Downloaded on 29/08/2019 at 10:59:28 PM) (7 of 10) [CW-1913/2016] reconstituted & re-registered as Rajasthan Shiksha Karmi Board since 01/07/2005 and is running with Non-Budget Plan Head of the State Government and is fully owned, controlled and administered by the State Government. Learned counsel further submits that the petitioner-Board sent a letter on 23/02/2010 to the Commissioner, EPFO, Jaipur stating that according to the order of the State Government dated 11/08/2005, the General Shiksha Karmis have not been included in the list of P.F. Contribution and further stated in the letter that the Shiksha Karmis have given social services and no service rules are there to regulate their service conditions and they are receiving meager remuneration, therefore, they are not able to pay their contribution towards E.P.F. Fund and the State Government has decided to include the General Shiksha Karmis in the list of P.F. Contribution from 01/10/2009 and therefore, The Commissioner, EPFO, Jaipur was requested to issue directions to all Assistant P.F. Commissioners that they do not levy the damages upon the petitioner-Board from 2007 to 01/10/2009.
5. Learned counsel for the petitioner further submits that the Assistant P.F. Commissioner, Kota initiated proceedings under Section 14 (B) of the Act of 1952 while the representative of establishment was present before the Assistant P.F. Commissioner and a specific plea was taken that the establishment has not caused any delay for depositing the P.F. Contribution of employees and submitted copy of challans, account books and other records before the Assistant P.F. Commissioner. The Assistant P.F. Commissioner passed an order on 11/09/2014 and directed the petitioner to deposit arrears within a period of 15 days of receipt of the order and also ordered that on default, action shall be taken under Section 8 of the Act of 1952. The order was passed under Section 14(B) of the Act of 1952. The petitioner thereafter, preferred an appeal before the Employees Provident Fund Appellate Tribunal, New Delhi under Section 7(I) of the Act of 1952. However, the learned Appellate Tribunal dismissed the appeal vide order impugned dated 03/11/2015 on the ground that (Downloaded on 29/08/2019 at 10:59:28 PM) (8 of 10) [CW-1913/2016] no cogent reason is made out for interference and declared the appeal to be devoid of merit. Counsel further submits that the liability under Section 7-A and 7-Q of the Act of 1952 has already been discharged by the petitioner and the narrow issue, which remains for adjudication of this Court, pertains to only levy of damages under Section 14(B) of the Act of 1952. Learned counsel further submits that since the petitioner-Board is wholly owned by the State and any liability is the liability of the State of Rajasthan, therefore, a limited intervention may be made by this Court for relaxing the damages under Section 14(B) of the Act of 1952. In support of his submissions, learned counsel for the petitioner has relied upon a judgment of the Supreme Court in K. Streetlite Electric Corporation Vs. Regional Provident Fund Commissioner, Haryana: (2001) 4 SCC 449, more particularly Para 5 which reads as under:-
"5. The second contention need not be examined in the view we propose to take in the matter. Even if we hold that the Central Government instructions issued under Section 2 of the Act are not binding on the respondent, still in assessing the damages it will be necessary for us to take note of the manner in which the amounts of damages have been levied and appropriately consider as to what would be the correct rate of damages to be imposed under Section 14-B of the Act. The statement of calculation prepared by the respondent regarding delay in payments discloses that the respondent has imposed damages at different rates, for example, for the month of July 1976 the rate of damages is 50% whereas the period of default is over a month, while in case of December 1976 the damages imposed upon the appellant are at the rate of 20% though the period of delay is over two months, in the case of delay for April 1988 damages imposed are at the rate of 30% though the period of delay is only one month. In certain cases, even for a delay of below 15 days, like October 1977, damages at the rate of 85% have been imposed, while for another period though the delay is for six months 65% damages have been levied. Therefore, it is not possible to discern the rationale adopted by the respondent in the matter of imposition of penalty. In the circumstances, therefore, it would have been (Downloaded on 29/08/2019 at 10:59:28 PM) (9 of 10) [CW-1913/2016] appropriate for us to set aside the order and remit the matter to the respondent, but we do not think that such an exercise is necessary after such a long period. In this case, the amount due towards provident fund has already been deposited and this Court, by order dated December 18, 1998, granted an interim relief to the extent of 75% of the amount of damages sought to be recovered, while out of the disputed amount of damages (that is, Rs. 88,731.25), 25% had already been directed to be deposited. In that view of the matter, we think, it is appropriate to confine the damages leviable in this case on an overall consideration to the extent of 25% of the total damages imposed."
6. Per-contra, Mr. Nikhil Simlote, learned counsel for the respondent vehemently refutes the submissions made by learned counsel for the petitioner and submits that EPF provisions are welfare legislation and damages under Section 14(B) of the Act of 1952 are essential to the scheme of law as unless such stringent provisions are not followed, the purpose of the scheme would be jeopardized. Learned counsel further submits that in case any relaxation is given in the damages under Section 14-B of the Act of 1952, it shall become an example for future to make defaults and seek relaxation in damages.
7. After hearing learned counsel for the parties and perusing the material available on record, this Court is of the view that in ordinary circumstances, this Court ought not to interfere in the activation of the welfare legislation which is the Act of 1952 in this case, however, looking to the peculiar facts and circumstances of the present case where the petitioner-Board is a non-commercial organization meant for welfare of the backward tribal areas and having no income of its own and also that it is fully owned, controlled and administered by the State Government and also looking to the fact that the liability under Section 7-A and 7-Q of the Act of 1952 has already been discharged by the petitioner, this Court is inclined to make limited intervention in the impugned order by reducing the damages awarded under Section 14-B of the Act of 1952 in terms of the precedent law laid down by the Apex (Downloaded on 29/08/2019 at 10:59:28 PM) (10 of 10) [CW-1913/2016] Court in K. Streetlite Electric Corporation Vs. Regional Provident Fund Commissioner, Haryana (supra) holding that the respondents shall be entitled to recover 50% of the damages from the petitioner.
8. The writ petitions are disposed of in the terms as indicated above. All the pending applications including the stay applications in the respective writ petitions shall also stands disposed of.
(PUSHPENDRA SINGH BHATI),J Raghu/Heena/177-201 (Downloaded on 29/08/2019 at 10:59:28 PM) Powered by TCPDF (www.tcpdf.org)