Madras High Court
M/S.Larsen & Toubro Ltd vs The Presiding Officer on 1 July, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 1.07.2011 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.7723 OF 2011 and M.P.No.1 of 2011 M/s.Larsen & Toubro Ltd rep. by its Vice President ... Petitioner Versus 1.The Presiding Officer, Employees' Provident Fund Appellate Tribunal, 4th Floor, Core 2, Scope Minar, Lakshmi Nagar, New Delhi-110 092. 2.The Assistant Provident Fund Commissioner, Employees Provident Fund Organisation, Sub Regional Office, 3, Rajaji Salai, Tambaram, Chennai-45. ... Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorari to call for the records of the first respondent dated 28.1.2011 in proceedings No.ATA 546(13)/2009 and quash the same. For Petitioner : Mr.S.Ravindran for M/s.T.S.Gopalan & Co. For Respondents : Mr.K.Gunasekar (R2) O R D E R
The petitioner is an employer. They filed the present writ petition to challenge the order passed by the first respondent Employees Provident Fund Appellate Tribunal, dated 28.1.2011 made in ATA.No.546 (13) /2009.
2.By the impugned order, the first respondent Tribunal dismissed the appeal filed by the petitioner against the levy of damages under Section 14-B of the Employees Provident Fund and Miscellaneous Provisions Act, 1952.
3.The writ petition was admitted on 25.3.2011. Pending the writ petition, this Court granted interim stay on condition that the petitioner deposits 50% of the amount within four weeks. Today, when the matter came up, Mr.S.Ravindran, learned counsel appearing for M/s.T.S.Gopalan & Co. for the petitioner states that the conditional order has been complied with. On notice from this Court, the respondents have filed a counter affidavit dated 22.6.2011.
4.The short facts of the case lie in a narrow campus. The contribution received from the employees were earlier kept in an Exempted PF Trust known as L&T McNeil PF Trust. Subsequently, the entire contributions were entrusted to Regional Provident Fund Commission maintained by the petitioner. In doing so, there was a delay of 1 year and 61 days in transferring the Provident Fund amount. Hence, there was a violation of Section 15(2) of EPF and MP Act r/w Para 28 of the Employees Provident Funds Scheme, 1952. In view of the delay in remittance, as per the provisions of the Scheme, referred to above, the authority by an order dated 1.6.2009 levied damages under Section 14-B and also interest in terms of Section 7Q of the Act. Challenging the same, the petitioner preferred appeal under Section 7-I of the Act before the first respondent Tribunal. As a condition precedent, the Tribunal directed the petitioner to deposit 20% of the amount claimed, which was also done by the petitioner. The ground raised by the petitioner before the Tribunal was that levy of damages have been mechanically made and there was no application of mind and that, the amounts have been duly collected and credited to the erstwhile Trust and there was a delay only in transferring the amount and therefore, the question of claiming interest for the delay in remittance is unjust levy for second time. The Tribunal took the appeal on file and numbered the appeal as ATA No.546 (13)/2009. The Tribunal found that the facts were not disputed and observed that it was the duty of the appellant to transfer the amount within the time and the procedural difficulty or administrative inconvenience was not a justifiable ground to justify the delay and hence, no infirmity was noticed in the order of the authority. Challenging the same, the present writ petition came to be filed.
5.The learned counsel for the petitioner contended that there was no delay in collecting the Provident Fund dues from the workmen and the contributions were entrusted in the erstwhile Trust by the employer and that, the delay was occasioned only in transferring the amount from the erstwhile Trust to Employees Provident Fund department. Hence, levy of damages was unwarranted.
6.However, a perusal of Section 15(2) of EPF and MP Act, would clearly show that it is mandate on the part of the exempted Trust to transfer the contribution to the Scheme, but while r/w Para 28 (1)(ii) of the EPF Scheme, it conveys that the transfer shall be effected within 10 days from the date of application of the Scheme or cancellation of the exemption, as the case may be. When the payment is made based on the statutory Scheme, it is mandate by law and it is not open to the petitioner to contend that there was no default on the part of the employer and the delay was only due to transferring the amount and hence, the question of levying damages may not arise. The Tribunal has not committed any illegality or irregularity in rejecting the appeal filed by the petitioner. This court also does not find any merit to interfere with the impugned order of the Tribunal.
7.In the result, the writ petition stands dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
rk To
1.The Presiding Officer, Employees' Provident Fund Appellate Tribunal, 4th Floor, Core 2, Scope Minar, Lakshmi Nagar, New Delhi-110 092.
2.The Assistant Provident Fund Commissioner, Employees Provident Fund Organisation, Sub Regional Office, 3, Rajaji Salai, Tambaram, Chennai 45