Kerala High Court
Assistant Provident Fund Commissioner vs Indian Telephone Industries Ltd on 28 August, 2008
Author: H.L.Dattu
Bench: H.L.Dattu, A.K.Basheer
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2182 of 2006()
1. ASSISTANT PROVIDENT FUND COMMISSIONER,
... Petitioner
2. THE RECOVERY OFFICER,
3. THE CENTRAL BOARD OF TRUSTEE,
4. CENTRAL PROVIDENT FUND COMMISSIONER,
Vs
1. INDIAN TELEPHONE INDUSTRIES LTD.,
... Respondent
2. THE BRANCH MANAGER, STATE BANK OF INDIA,
For Petitioner :SRI.S.GOPAKUMARAN NAIR, SC, P.F.
For Respondent :SRI.K.JAYAKUMAR
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER
Dated :28/08/2008
O R D E R
H.L.DATTU, C.J. & A.K.BASHEER, J.
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W.A.No.2182 of 2006
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Dated, this the 28th day of August, 2008
JUDGMENT
H.L.Dattu, C.J.
This writ appeal is directed against the orders passed by the learned Single Judge in W.P.(C) No.32515 of 2005 dated 10th October, 2006. The learned Single Judge has allowed the writ petition and has granted certain reliefs to the petitioner. Aggrieved by the said order passed by the learned Single Judge, the contesting respondents in the writ petition are before us in this writ appeal.
(2) The factual matrix is as under: The Indian Telephone Industries Limited ('ITI Limited' for short) is a Company incorporated under the provisions of the Companies Act. It is a public sector undertaking having its corporate office at Bangalore and having several manufacturing units spread over the country including the unit at Palakkad.
(3) In the writ petition filed, the petitioner had sought for a writ in the nature of certiorari to quash Ext.P2 order, wherein the respondent has levied interest under Section 7Q of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter for the sake of brevity referred to as 'the Act'), Ext.P3 order, wherein damages W.A.No.2182 of 2006 2 under Section 14B of the Act has been levied, Ext.P5 notice which is in the form of a garnishee notice issued for recovery of the damages under Section 14B of the Act, Ext.P7 recovery notice which is again in the form of garnishee notice, to recover the damages under Section 14B of the Act and lastly Ext.P8 order passed by the Central Provident Fund Commissioner in Case No.RRC/12(2)SZ/Damages/KR/05 dated nil. The second prayer in the writ petition was to declare that the petitioner industry being a sick industrial unit is not liable for damages under Section 14B of the Act for the belated remittance of the provident fund dues under the provisions of the Act and lastly, for a mandamus to the Central Board of Trustees to reconsider and dispose of Ext.P4 appeal (sic) application/representation in the light of Ext.P9 proceedings of the Board for Industrial and Financial Reconstruction (BIFR) and further to direct the contesting respondents not to give effect to their orders passed in Exts.P2, P3, P5, P7, etc. (4) The learned Single Judge has allowed the writ petition. It is the correctness or otherwise of the said order is called in question by the contesting respondents in the writ petition, in the present writ appeal.
(5) Sri.S.Gopakumaran Nair, learned Senior Counsel appearing for the appellants in this writ appeal, would submit that the learned Single Judge having taken exception to the orders passed by the W.A.No.2182 of 2006 3 Central Provident Fund Commissioner on Ext.P4 representation filed by the petitioner industry, ought to have remanded the matter to the Central Board of Trustees for a fresh disposal in accordance with law instead of directing the Central Board of Trustees, to pass an order on the application/representation filed by the petitioner, the way it is suggested in the course of the order while disposing of the writ petition.
(6) Per contra, Sri.N.Raghuraj, learned counsel appearing for the contesting respondent in this appeal, would submit that the learned Single Judge was justified in going into the details of the case and declaring that since the petitioner industry is a sick industrial unit is not liable for payment of the damages under Section 14B of the Act.
(7) The issue that would arise for our consideration is, whether the learned Single Judge was justified in considering the merits of the writ petition, especially when the petitioner was primarily questioning Ext.P8 order passed by the Central Provident Fund Commissioner, who had no authority of law or jurisdiction to decide an application filed for waiver of the damages quantified under section 14B of the Act.
(8) The admitted facts are: The competent authority under the Act has passed Ext.P3 order, wherein he has quantified the damages payable by the petitioner industry for belated payment of the provident fund dues. The petitioner industry being of the view that the authority was W.A.No.2182 of 2006 4 not justified in levying and demanding the damages quantified under Section 14B of the Act, has filed Ext P4 application dated 18th July, 2005. The prayer in the application was to waive the levy of damages quantified by the respondent authority under Section 14B of the Act. This application had to be considered by the Central Board of Trustees. However, for the reasons best known, the Central Provident Fund Commissioner has rejected the application so filed by the petitioner by his cryptic order.
(9) While the petitioner's application was pending for consideration before the Central Board of Trustees, the respondents had initiated recovery proceedings by issuing garnishee notices Exts.P5 and P7. Those notices came to be questioned by the petitioner industry before this Court in W.P.(C) No.23176 of 2005. This Court while disposing of the writ petition by its order dated 5th August, 2005, had restrained the respondents in the writ petition from giving effect to Exts.P5 and P7 notices till the application filed by the petitioner industry is decided by the Central Board of Trustees.
(10) It is not in dispute, nor it can be disputed by either side that the application for waiver of damages imposed under Section 14B of the Act by the competent authority can only be considered by the Central Board of Trustees. The petitioner industry has filed such an application. W.A.No.2182 of 2006 5 That application ought to have been considered by the Central Board of Trustees, but it has been considered by the Central Provident Fund Commissioner and has rejected the same. It is that order which persuaded the petitioner industry to approach this Court for the reliefs indicated by us earlier.
(11) The learned Single Judge while disposing of the writ petition, has granted what should have been considered and decided by the Central Board of Trustees. In fact, in the application filed before the Central Board of Trustees, the petitioner's primary grievance was that it is not liable to pay any damages, much less, the damages quantified under Section 14B of the Act, on the ground that it is a sick industrial unit and it is already before the BIFR for appropriate relief.
(12) The Act provides for consideration of an application for waiver of the damages by the Central Board of Trustees. What requires to be done by an authority under the Act requires to be done only by that authority and it cannot be done by any other person. When the Legislature says that an application for waiver of the damages requires to be considered only by the Central Board of Trustees, it is that authority alone which has to consider the application.
(13) In the instant case, the petitioner having filed an application for waiver of the damages imposed under Section 14B of the W.A.No.2182 of 2006 6 Act before the Central Board of Trustees, and that application being considered by an incompetent authority, was before this Court indirectly seeking a further declaration by this Court to declare that the petitioner industry is not liable to pay any damages, and this Court has granted that declaration. This in our opinion, is impermissible in law. A proceeding under Article 226 cannot have any analogy to what is known as declaratory relief. The writ jurisdiction cannot be exercised for the purpose of granting merely declaratory reliefs, though it cannot be laid down as an axiom that no kind of declaration can be given by way of relief under Article 226, but in any case, no declaration can be given unless it be necessary for the exercise of the applicants rights. The primary purpose of Article 226 being enforcement of legal rights, there cannot be no declaration in vacuo. Declaration can however be made where the basic facts are undisputed, though ordinarily a person seeking declaration should have recourse to the ordinary combs. (See Law of Writs by Sri.Chaudhary). In the present case, as we have already noticed, the application filed by the petitioner is pending before the Central Board of Trustees, but that application was rejected by an authority which did not have jurisdiction. In such circumstances, the writ court should have set aside the impugned order passed and directed the competent authority to decide the application in accordance with law.
W.A.No.2182 of 2006 7
(14) In view of the above discussion, the orders passed by the learned Single Judge cannot be sustained by us. Accordingly, while allowing this appeal, we have to remit the matter to the Central Board of Trustees to consider Ext.P4 application/representation filed by the petitioner industry in accordance with law.
(15) Accordingly, we pass the following:
ORDER
i) Writ appeal is disposed of.
ii) A direction is issued to the Central Board of Trustees/respondent No.3 in the writ petition to consider Ext.P4 application/representation filed by the petitioner industry on 18th July, 2005 on its merits and in accordance with law, untrammelled by any one of the observations made by the learned Single Judge while disposing of the writ petition.
iii) In the peculiar facts and circumstances of this case we direct the Central Board of Trustees to afford an opportunity of hearing to the representative of the petitioner industry.
iv) We will make it clear that the representative of the petitioner industry is permitted to put-forth all the contentions which it had raised in the writ petition and also in the writ appeal and also the subsequent events that have taken place during the pendency of this writ W.A.No.2182 of 2006 8 appeal.
v) We also make it clear that we have not expressed any opinion on the merits or demerits of the case pleaded by both the parties.
Ordered accordingly.
(H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE vns/dk