Karnataka High Court
M/S Alvares And Thomas vs The Regional Provident Fund on 19 February, 2014
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1
W.P.2932/11
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 19TH DAY OF FEBRUARY, 2014
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
WRIT PETITION NO. 2932 OF 2011 (L-PF)
BETWEEN :
M/S. ALVARES & THOMAS
ALVARES CENTRE
NANTHOOR
MANGALORE - 575 005
REP.BY ITS MANAGER
SRI. KESHAV.
... PETITIONER
(BY SRI. C K SUBRAMANYA, ADVOCATE FOR
B C PRABHAKAR, ADVOCATE)
AND :
THE REGIONAL PROVIDENT FUND
COMMISSIONER, GR.II
EPFO, SRO, P B No. 572
MANGALORE - 575 002.
... RESPONDENT
(BY SMT. VIJAYA R HANMANTHGAD &
SRI. B PRAMOD, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS LEADING TO THE PASSING OF THE ORDER ON
4.10.2010 PASSED BY THE EPF APPELLATE TRIBUNAL NEW
DELHI, IN ATA No. 450 (6) 2007 VIDE ANN-F AND QUASH THE
ORDER ON 4.10.10 PASSED BY THE EPF APPELLATE TRIBUNAL
NEW DELHI, IN No. ATA No. 450(6) 2007 VIDE ANN-F; ETC.
2
W.P.2932/11
THIS WRIT PETITION COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner assailing the order dated 4th October, 2010 dismissing ATA No. 450(6) 2007 (Annexure-F) of the P.F Appellate Tribunal, New Delhi and confirming the order dated 11/16.4.2007 passed by the Regional Provident Fund Commissioner, Mangalore (Annexure-D) directing the petitioner to deposit Rs.2,41,480/-, has presented this petition.
2. Briefly stated facts are:
Petitioner an establishment for the purposes of Employees' Provident Funds and Miscellaneous Provisions Act, 1952 suffered an order under Sec.14-B of the Act determining damages for delay in payment of contribution for the period from August 1990 to March 1996 in a sum of Rs.2, 41, 480/-That order when called in question before the Employees' Provident Funds Appellate Tribunal was confirmed by rejection of the 3 W.P.2932/11 appeal, whence the petitioner preferred W.P.39902/94. A learned Single Judge by order dated 1st December, 2004, Annexure-B quashed the orders of the R.P.F. Commissioner as well as the Appellate Tribunal and remitted the proceeding for a fresh consideration over mitigating circumstances for the delay in the remittance including the delay in initiating proceedings under Sec.14-B of the Act. On remand the R.P.F Commissioner by order dated 11/16.4.07, Annexure-D levied damages of 100% of the contribution remitted belatedly and in a same sum of Rs.2,41,480/-. That order when called in question in ATA 450(6) 2007 before the Provident Fund Appellate Tribunal led to the order impugned.
3. There is force in the submission of the learned counsel for the petitioner that the order is not a speaking order in as much as reasons, findings are not recorded except conclusions.
4W.P.2932/11
4. The RPF Commissioner and the appellate authority failed to notice that Sec.14-B must be read with paragraph 32-A of the Employees' Provident Fund Scheme, 1952, permitting damages of an upper limit of 25% of the amount of contribution and not 100%. Learned counsel is also correct in his submission that the authorities having not considered mitigating circumstances for the delay in payment of the contribution as well as the delay on the part of the R.P.F Commissioner in initiating proceeding for determination of damages, the orders of the authorities suffer from legal infirmities.
5. A learned Single Judge in the order dated 21st August, 2012 in W.P.588/2012 having noticed the provisions of Sec.14-B of the Act and paragraph 32-A of the scheme held that so far as levy of damages is concerned, it is by way of penalty and it is in these circumstances, the legislation has conferred a discretion 5 W.P.2932/11 on the Commissioner by using the word 'may recover' both under Sec.14-B of the Act and also para 32-A of the Scheme and an interpretation of these provisions, the Apex Court too observed that, the discretion vests with the Commissioner to consider mitigating circumstances and pass a speaking order supported by reasons. So also in the order dated 25th September, 2013 in W.P.30297/2012 filed by the RPF Commissioner against Anjali Silks, this court held that the order of the Regional Commissioner for Provident Fund did not disclose application of mind over the determination of the damages while the appellate authority having applied its mind, set aside the order of the RPF Commissioner levying damages, hence neither illegal nor arbitrary.
6. For the very same reasons as are found in the aforesaid two decisions, this petition deserves to be allowed and is accordingly allowed and the order of the 6 W.P.2932/11 R.P.F Commissioner and the appellate authority are quashed and proceeding remitted for consideration afresh by the RPF Commissioner and to pass orders afresh after affording an opportunity of hearing to the petitioner and in the light of the observations made in the aforesaid orders of this court.
Sd/-
JUDGE ssy/-