Calcutta High Court
Allied Electricals And Switch Fuses And ... vs Assistant Provident Fund Commissioner ... on 10 February, 2003
Equivalent citations: (2003)3CALLT25(HC), 2004(2)CHN194, (2003)IIILLJ360CAL
Author: Amitava Lala
Bench: Amitava Lala
JUDGMENT Amitava Lala, J.
1. It appears to this Court that by filing this writ petition on January 8, 2003, the petitioners challenged the notice of the Assistant Provident Fund Commissioner dated December 20, 2002, asking for payment of interest and damages for the belated remittances under Sections 7-Q and 14-B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. According to the petitioners, an application was made by the employees of the first petitioner on March 27, 1996, for the purpose of availing of the facilities of the Provident Fund Scheme and show willingness to contribute money per month from the salary as per rules and regulations of the authority. Since the authority concerned did not give any heed to such application, on May 18, 1998, the employer made similar application. On December 8, 1999, the authority concerned issued a notice of inspection under Section 13 of the Act. Necessary documents were forwarded by the first petitioner on December 17, 1999. Even as against such inspection an order was passed only on January 24, 2000, by the authority concerned that on the basis of the particulars furnished by the petitioners on December 17, 1999, the first petitioner is liable to pay the provident fund contribution under Section 16(1)(d) of the Act. Thereafter, on May 5, 2000, a show cause notice was issued to pay the contributions from November, 1996 to December, 1999. A reply was given to that claim expressing the facts and circumstances of this case. On February 19, 2001, an order was passed by the authority concerned waiving the employees' share of contributions from November, 1996 to December 1999. Thereafter, the authority concerned issued a notice of demand on September 14, 2001, under Section 7-A of the Act calling upon the petitioners for payment of the employer's share for a sum of Rs. 1, 14,237 within 15 days from the receipt of the demand notice.
2. Learned counsel appearing for the petitioners contended that even immediately thereafter within October 5, 2001, the bank account of the first petitioner-company was attached and principal sum being Rs. 1, 14,237 was recovered. By November 13, 2001 order of attachment was revoked. Thereafter, on December 20, 2002, the impugned notice was issued for recovery of Rs. 1,38,506 on account of interest and damages for the period from March, 1997 till December, 1999, taking the plea of expiry of 15 days from the following month from such period. From the break up, it appears that a sum of Rs. 34,806 is due on account of interest under Section 7-Q of the Act and a sum of Rs. 1,03,700 is due on account of damages under Section 14-B of the Act. At the end of the particulars, I find a direction has been given to the petitioners to deposit the quantified amount of interest under Section 7Q of the Act and so far as damages are concerned either by remittance or by availing of an opportunity of being heard on the basis of writing immediately fixing for enquiry.
3. Learned counsel appearing for the petitioners contended before this Court that unless and until there is a default on the part of the petitioners, there cannot be any liability of payment of interest and and/or damages. The petitioner's employees are voluntarily repeatedly requesting from 1996 for the purpose of covering them under the scheme. The authority concerned waived the contribution of the employees for a considerable period. The attachment has been made even without giving any opportunity of hearing and recovered the principal sum as far back as on October 5, 2001. Therefore, without any default, the petitioners will not be penalised for payment of interest and/or damages at this belated stage under the notice dated December 20, 2002. In answer to this, learned counsel appearing for the Provident Fund Authority contended that as per paragraph 38 of the Employees' Provident Fund Scheme, 1952, payment will be recovered within 15 days of every month meaning thereby if any payment is due and payable for the current month, the 15th of the following month will be the cut off date of recovery. In such case, if any amount is not paid within such period, the authority concerned will be entitled for recovery of interest. The authority is also entitled to recover the damages due to default. He has relied upon a single Bench decision of this Court in Andrew Yule and Co. Ltd. v. Regional Provident Fund Commissioner 2001-I-LLJ-1385 (Cal) under which the question of payment under Section 14B was discussed. However, the same stands on a different context. Each case has to be determined on the basis of the situation available before the Court. The learned counsel appearing for the authority concerned very much relied upon different paragraphs of the Scheme 1952, i.e., paragraphs 30, 32, 32-A and 38.
4. According to me, if I go on the basis of the submission of the learned counsel appearing for the authority that 15 days period of the preceding month is the cut-off date for payment of provident fund dues, then that will definitely expire on October 15, 2001, but not before. In such case giving time of 15 days in the notice will be deemed to be an administrative direction overriding the mandatory requirement under the scheme or under the Act. Therefore, the Bank account cannot be attached before such date. In a case where the element of delay on the part of the authority in realising the employer's and employees' shares are available, the Court has no other alternative but to deprecate the stand of such authority. Such onus of such delay cannot be automatically shifted upon the payee. Therefore, the question of default is a determinable issue before the issuance of any notice or recovery of interest and damages and since the petitioners are not inclined to say anything in respect of the principal sum already paid. I do not want to say anything more in respect of such recovery. But, since the recovery has been made prior to the date of expiry, the payment of interest and/or damages is definitely a determinable issue before the authority concerned.
5. Although neither of the parties agitated any question in respect of the alternative remedy but it is my responsibility to discuss on that score. Section 7I of the Act gives provision for appeal to the Tribunal. I find that Section 14B is appealable but there is no provision of appeal in respect of Section 7Q. Good, bad or indifferent both are merged here. A sum can be said to be due when it is determined against a notice. Question of appeal arising therefrom. But, when the root of the notice is under challenge, the Court cannot shut out the eye. Whenever the element of violation of principle of natural justice is available, on the ratio of the Whirlpool Corporation's case , will be applicable even having alternative remedy.
6. Hence, taking into totality of the matter, I am of the view that the notice dated December 20, 2002, for the purpose of recovery of interest and damages should be stayed, unless and until a fullest opportunity of hearing is given by the authority concerned in coming to a conclusion as to why the petitioners are treated as defaulter in payment of interest and damages.
7. Therefore, the writ petition is disposed of by making a time bound programme of one month from the date of communication of the order for the purpose of hearing of the matter upon giving fullest opportunity of hearing and by passing a reasoned order. A Copy of the writ petition along with all annexures will be supplied to the authority for the purpose of making effective adjudication.
8. Since no affidavit-in-opposition has been filed by the respondent, no factual allegations are taken to be admitted by them.
9. Thus, the writ petition stands disposed of. There will be no order as to costs.
10. Let urgent xeroxed certified copy of this order, if applied for, be given to learned counsel for the parties within a fortnight from the date of putting the requisites.