Jharkhand High Court
M/S Nagarmal Modi Seva Sadan vs Employees' Provident Fund ... on 23 February, 2021
Equivalent citations: AIRONLINE 2021 JHA 203, 2021 (2) AJR 296
Author: Sujit Narayan Prasad
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.893 of 2019
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M/s Nagarmal Modi Seva Sadan, a Charitable Trust/Society having
its Multispecialty Hospital & Diagnostic Centre, at Nagarmal Modi
Path, Upper Bazar, P.O. G.P.O, Ranchi, P.S. Sadar (Kotwali), District
Ranchi through its Honorary President Shri Rajendra Kumar
Sarawgi Son of Surajmal Sarawgi, Resident of Ranchi Metal Supply
Co., S.N.Ganguly Road, Ranchi, P.O. G.P.O., P.S. Kotwali, District
Ranchi.
... ... Petitioner/Appellant
Versus
1. Employees' Provident Fund Organization, Regional Office, Ranchi
having its Office at Bhagirathi Complex, Near Circuit House,
Karamtoli, P.O. & P.S. Lalpur, District Ranchi, through the
Regional Provident Fund Commissioner, Regional Office Ranchi
having its office at Bhagirathi Complex, Near Circuit House,
Karamtoli, P.O. & P.S. Lalpur, District Ranchi.
2. Employees' Provident Fund Organization, Regional Provident
Fund Commisisoner-II, Ranchi having its Office at Bhagirathi
Complex, Near Circuit House, Karamtoli, P.O. & P.S. Lalpur,
District Ranchi, through the Regional Provident Fund
Commissioner, Regional Office Ranchi having its office at
Bhagirathi Complex, Near Circuit House, Karamtoli, P.O. & P.S.
Lalpur, District Ranchi.
3. Branch Manager, Union Bank of India, Upper Bazar, P.O. G.P.O.
P.S. Sadar, District - Ranchi-834001.
... ... Respondents/Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant : Mr. Nipun Bakshi, Advocate
For the Respondents : Mr. Kislay Prasad, Advocate
Mr. Parth S.A. Swaroop Pati, Advocate
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C.A.V. on 22.09.2020 Pronounced on 23.02.2021
Per Sujit Narayan Prasad, J.
With consent of the parties, hearing of the matter was done through video conferencing and there was no complaint whatsoever regarding audio and visual quality.
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2. Heard parties.
3. The instant intra-court appeal is directed against the order dated 05.11.2019 passed by learned Single Judge of this Court in W.P.(C) No. 1298 of 2010 whereby and whereunder the writ Court has declined to interfere with the order dated 18.02.2010 passed by the Regional Provident Fund Commissioner-II, Regional Office, Jharkhand, Ranchi whereby a demand of Rs.7,24,038/- under Section 14-B and interest under Section 7-Q of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 has been directed to be paid by the writ petitioner and further, refused to interfere with the order of attachment dated 15.03.2010 issued by the Respondent No.2 for realization of the aforesaid amount in pursuance of the order dated 18.02.2010.
4. The brief facts of the case which are required to be referred read as under :-
The writ petitioner/appellant is an establishment under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act, 1952) for which a code being Code No.JH/2052 has been allotted. The Authority under the Act, 1952 initiated a proceeding under Section 7-A of the Act, 1952 for the alleged allegation of committing default in depositing the subscription in the respective PF Account of the employees for the period from July, 2000 onwards. The Authority under the Act, 1952 issued a notice on 04.04.2007 to the writ petitioner/appellant for appearance with relevant records. The proceeding under Section 7-A of the Act, 1952 has been concluded by holding therein that the -3- writ petitioner/appellant is liable to make payment of Rs.9,89,688/-
for the period July, 2000 onwards and simultaneously, the liability to pay interest under the provision of Section 7-Q of the Act, 1952 was also passed fixing of liability for an amount of Rs.2,43,887/-. The establishment, in pursuance of order dated 05.11.2007 passed under Section 7-A and 7-Q of the Act, 1952, deposited an amount of Rs.5,25,991/- vide cheque No.85072 dated 23.11.2007 with a prayer for reasonable time to deposit the balance amount of employees' share in installments and as regards the interest, prayer was made to waive the same. The establishment further deposited an amount of Rs.4,63,697/- on 12.01.2008 with due intimation to the Authority.
Further, the interest amount of Rs.2,43,887/- was deposited by the writ petitioner/appellant on 22.01.2008. The Authority under the Act, 1952 further issued a notice on 03.02.2010 with regard to payment of interest and damages for the belated remittance under Section 7-Q and 14-B of the Act, 1952 wherein it was mentioned that total amount of interest under Section 7-Q is Rs.2,67,743 and damages under Section 14-B is Rs.7,00,082/-. The writ petitioner/appellant, however, has paid the entire amount of interest under Section 7-Q of the Act, 1952.
The writ petitioner/appellant had appeared before the Authority in compliance to the notice dated 03.02.2010 and thereafter an order was passed on 18.02.2010 by the Authority under the Act, 1952 casting the liability upon the writ petitioner/appellant about penal damages under Section 14B as also the interest under Section 7-Q of the Act, 1952.-4-
The aforesaid order was questioned by the writ petitioner/appellant by invoking the writ jurisdiction conferred to this Court under Article 226 of the Constitution of India but the learned Single Judge of this Court has dismissed the writ petition vide order dated 05.11.2019 on the ground that the Authority has passed a reasoned order and further, the writ petitioner/appellant has not chosen to file statutory appeal as provided under Section 7-I of the Act, 1952, which is the subject matter of the present intra-
court appeal.
5. Mr. Nipun Bakshi, learned counsel appearing for the writ petitioner/appellant has submitted that the order dated 18.02.2010 is not sustainable in the eyes of law since the same has been passed without providing an opportunity of hearing and further, no detailed calculation about the penal damages, as has been calculated under Section 14-B, has been provided to the writ petitioner/appellant.
Learned counsel has further taken the ground by putting reliance upon the judgment rendered by the Hon'ble Apex Court in the case of Hindustan Times Ltd. v. Union of India and Others reported in (1998) 2 SCC 242 wherein, according to him, ratio has been laid down that the Authority under Section 14-B has to apply his mind to the facts of the case and has to pass reasoned order after following the principle of natural justice, but having not done so, the impugned order is contrary to the ratio laid down in the case of Hindustan Times Ltd. v. Union of India and Others (Supra) as this aspect of the matter has not been appreciated by the learned Single Judge.
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He has further contended that the upper limit for imposition of damages cannot be applied routinely and mechanically and the highest rate of penalty can be inflicted only in cases of great default and flagrant violation of provision of the Act, 1952.
6. Per contra, Mr. Kislaya Prasad, learned counsel appearing for the respondents, has submitted that there is no infirmity in the impugned order as because, according to him, a proceeding under Section 7-A of the Act, 1952 has been initiated against the writ petitioner/appellant and the Authority determining the dues has come to the conclusive finding that the writ petitioner/appellant has not deposited the statutory subscription from the month of July, 2000 onwards but the writ petitioner did not question the order passed under Section 7-A of the Act, 1952, meaning thereby, the writ petitioner has accepted the fact that the statutory amount has not been deposited within time and once this fact has been admitted, the normal course would be to put the establishment under the purview of deterrent provision as provided under Section 14-B of the Act, 1952 as also the interest to be paid under Section 7-Q of the Act, 1952, taking into consideration this aspect of the matter, the Authority under the Act, 1952 has passed the order which cannot be said to be improper.
Further, it has been submitted that it is incorrect to say that the order passed under Section 14-B and 7-Q of the Act, 1952 has been passed without providing an opportunity of hearing, rather, it would be evident from the impugned order dated 18.02.2010 that the representative of the establishment had put his appearance and -6- represented the establishment not only that he has accepted the default committed on his part and once the default has been accepted the filing of the writ petition is nothing but abuse of the process of court and hence, if the learned Single Judge has declined to interfere with the impugned order, it cannot be said that any illegality has been committed and, therefore, submission has been made by the learned counsel to dismiss the instant appeal.
7. We have heard the learned counsel for the parties and perused the documents available on record as also the finding recorded by the learned Single Judge.
This Court, before proceeding to examine the legality and propriety of the impugned order, deems it fit and proper to refer certain admitted facts which are available on record, which read as under :-
The establishment, the writ petitioner/appellant herein, is covered under the Act, 1952 and as such, the writ petitioner/appellant is statutorily bound to act in pursuance to the Act, 1952 but the statutory subscription has not been deposited in the respective account of the employee and, therefore, a proceeding under Section 7-A of the Act, 1952 has been initiated against the writ petitioner/appellant for the period July, 2000 onwards. The Authority under Section 7-A of the Act, 1952 has disposed of the application vide order dated 05.11.2007 which is available at Annexure-2 to the writ petition wherefrom it is evident that on the basis of a complaint made by Jharkhand State Private Hospital and Nursing Home Employees Union making a complain that the EPF -7- benefit to the employees of the establishment has not been extended.
The Authority under the Act, 1952, acting on the basis of the aforesaid complaint, has constituted a team to visit the establishment in order to verify the record and accordingly, on verification of the record it was found that the earlier dues were not cleared from July, 2000, hence a proceeding under Section 7-A of the Act for the period July, 2000 onward was initiated against the establishment to determine the EPF like dues payable by the establishment but before that a notice was issued on 04.04.2007 to the establishment with a direction to appear along with relevant records on 30.04.2007. Hearing was further adjourned to 30.05.2007, 12.06.2007, 10.07.2007, 02.08.2007, 09.08.2007, 10.09.2007 and 18.09.2007. Finally, after hearing both the parties, the determination has been made of the amount to be paid under Section 7-A as also under Section 7-Q of the Act, 1952 with a direction for making recovery under the provision of Section 8-B to 8-G of the Act, 1952.
It is admitted fact that the order passed under Section 7-A of the Act, 1952 has not been questioned by the writ petitioner, rather, the order has been complied and the amount so determined under Section 7-A of the Act, 1952 has been paid by the establishment, although in installments. Thereafter, the Authority has initiated a proceeding under Section 14-B of the Act, 1952 and to that effect a notice was issued on 03.02.2010, in pursuance thereto, one Shri Shailesh Kumar Gupta, Manager (HRD) appeared on behalf of the establishment on 16.02.2010. He has submitted that the defaults as -8- mentioned in the notices have been scrutinized/verified with relevant records of the establishment and found to be correct. He has also submitted that they have deposited the 7-Q amount to the extent of Rs.2,43,787/- as assessed vide 7-A order dated 05.11.2007.
The Authority, after taking into consideration the no objection on the part of the representative of the establishment, has assessed the amount in exercise of power conferred under Section 14-B as also under Section 7-Q of the Act, 1952, which has been questioned by the writ petitioner before the writ court.
8. Learned counsel appearing for the writ petitioner/appellant has raised two fold grounds. First, that the order dated 18.02.2010 is not sustainable in the eyes of law since the same has been passed without providing an opportunity of hearing which is against the judgment rendered by the Hon'ble Apex Court in the case of Hindustan Times Ltd. v. Union of India and Others (Supra) and further, no detailed calculation about the penal damages, as has been calculated under Section 14-B, has been provided to the writ petitioner/appellant.
While on the other hand, learned counsel appearing for the respondents has submitted that since the order passed under Section 7-A of the Act, 1952 has not been questioned, it is suggestive of the fact that the writ petitioner/appellant has committed default in depositing subscription of the employee and, therefore, proceedings under Section 7-A and penal damages under Section 14- B are required to be initiated and accordingly it has been initiated. He further submits that full opportunity of hearing was provided and -9- representative of the management had appeared as would be evident from the order dated 18.02.2010 who has accepted the fact about default and thereafter the order has been passed, hence the same requires no interference by this Court.
9. We, before proceeding with the legality and propriety of the impugned order, deem it fit and proper to make reference about the object and purport of the Act, 1952 which has been enacted by making a provision for future of the industrial worker after his retirement or for his dependants in case of his early death. The Act has been enacted by way of welfare legislation. The object and intent of the Act has been considered by the Hon'ble Apex Court in the judgment rendered in the case of Regional Provident Fund Commissioner, Andhra Pradesh v. Sri T.S. Hariharan reported in (1971) 2 SCC 68 wherein at paragraph 8 it has been laid down that "the basic purpose of providing for provident funds appears to be to make provision for the future of the industrial worker after his retirement or for his dependants in case of his early death. To achieve this ultimate object the Act is designed to cultivate among the workers a spirit of saving something regularly, and also to encourage stabilisation of a steady labour force in the industrial centres. This Act has since its initial enactment been amended several times to extend its scope for the benefit of industrial workers".
The Hon'ble Apex Court in the case of National Textile Workers v. P.R. Ramkrishnan And Others reported in AIR 1983 Hon'ble Supreme Court 75 has been pleased to lay down that the beneficial provision should be considered taking into consideration
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the dominant purpose of the statute, intention of the legislature and the underlying policy.
It is in the backdrop of the aforesaid settled position of law, since the very intent and purpose of the Act is to make provision for the future of the industrial worker after his retirement or for his dependants in case of his early death, this Court has proceeded to examine the issue raised in this appeal.
It is evident from the provision of Section 7-A of the Act, 1952 which provides for a provision about Determination of Moneys Dues from Employers. It would further be evident from Section 7-A (1)(b) which is relevant for the present case, which provides a provision about determination of the amount due from any employer under any provision of the Act, the Scheme or the Pension Scheme or the Insurance Scheme, as the case may be or for any of the aforesaid purpose may conduct such enquiry as he may deem necessary.
In the present case, it is admitted fact that the dues for the month of July, 2000 onwards had not been paid and, therefore, resorting to the provision of Section 7-A(1)(b), a proceeding has been initiated which has been decided holding the writ petitioner liable for making payment of dues. The aforesaid amount, so determined under Section 7-A of the Act, 1952, has been paid, meaning thereby that the dues have been accepted by the establishment, the writ petitioner herein.
Section 7-Q of the Act, 1952 which provides about interest to be paid by the employer, reads as under :-
"7Q. Interest payable by the employer.--The employer
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shall be liable to pay simple interest at the rate of twelve per cent. per annum or at such higher rate as may be specified in the Scheme on any amount due from him under this Act from the date on which the amount has become so due till the date of its actual payment:
Provided that higher rate of interest specified in the Scheme shall not exceed the lending rate of interest charged by any scheduled bank."
It is evident from the provision of Section 7-Q that the employer shall be liable to pay simple interest @ 12% per annum or at such higher rate as may be specified in the Scheme on any amount due from him under this Act from the date on which the amount has become so due till the date of its actual payment, provided that higher rate of interest specified in the Scheme shall not exceed the lending rate of interest charged by any scheduled bank. It requires to clarify herein that the writ petitioner/appellant has no made out a case about proviso to Section 7-Q. Section 14-B of the Act, 1952 has been inserted by way of Act 99 of 1976 which provides power to recover damages. It reads as under :-
"14B. Power to recover damages.--Where an employer makes default in the payment of any contribution to the Fund the Pension Fund or the Insurance Fund or in the transfer of accumulations accumulations required to be transferred by him under sub-section (2) of section 15 or sub-section (5) of section 17 or in the payment of any charges payable under any other provision of this Act or of any Scheme or Insurance Scheme or under any of the conditions specified under section 17, the Central Provident Fund Commissioner or such other officer as may be authorised by the Central Government, by notification in the Official Gazette, in this behalf may recover from the employer by way of penalty such damages, not exceeding the amount of arrears, as may be specified in the Scheme:
Provided that before levying and recovering such damages, the employer shall be given a reasonable reasonable opportunity of being heard:
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Provided further that the Central Board may reduce or waive the damages levied under this section in relation to an establishment which is a sick industrial company and in respect of which a scheme for rehabilitation has been sanctioned by the Board for Industrial and Financial Reconstruction established under section 4 of the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986), subject to such terms and conditions as may be specified in the Scheme."
It is evident from the provision of Section 14-B of the Act, 1952 which provides that where an employer makes default in the payment of any contribution to the Fund, the Authority may recover the amount of arrears provided that before levying and recovering such damages, the employer shall be given a reasonable opportunity of being heard.
The vires of Section 14-B has been tested by Hon'ble Apex Court in the case of Organo Chemical Industries and Another v. Union of India and Others reported in (1979) 4 SCC 573. The Hon'ble Apex Court in the aforesaid judgment has been pleased to declare the Act intra-vires holding it not violative of Article 14 of the Constitution of India. However, it has further been laid down that the proceeding under Section 14-B being a quasi-judicial function, it must be exercised after notice to the defaulter and after giving him an opportunity of being heard as also the order must be speaking order containing the reasons in support of it.
Hon'ble Mr. Justice V.R. Krishna Iyer, as he then was, by giving a concurrent view in the aforesaid judgment, has been pleased to lay down at paragraph 43 thereof which reads as under :-
43. I am clearly of the view that "damages", as imposed by Section 14-B, includes a punitive sum quantified according to the circumstances of the case. In "exemplary damages"
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this aggravating element is prominent. Constitutionally speaking, such a penal levy included in damages is perfectly within the area of implied powers and the legislature may, while enforcing collections, legitimately and reasonably provide for recovery of additional sums in the shape of penalty so as to see that avoidance is obviated. Such a penal levy can take the form of damages because the reparation for the injury suffered by the default is more than the narrow computation of interest on the contribution.
In the case of Regional Provident Fund Commissioner v. K.T. Rolling Mills Pvt. Ltd. reported in (1995) 1 SCC 181 it has been laid down by making reference of the judgment rendered in the case of Organo Chemical Industries and Another v. Union of India and Others (Supra) that the purpose of imposition of damages, meant to penalise defaulting employer, as also to provide reparation for the amount of loss suffered by the employees. It is not only a warning to employers in general not to commit a breach of the statutory requirements, but at the same time it is meant to provide compensation or redress to the beneficiaries i.e. to recompense the employees for the loss sustained by them.
In the case of Hindustan Times Ltd. v. Union of India and Others (Supra) on which learned counsel for the writ petitioner/appellant has put reliance wherein consideration has been given that even in absence of period of limitation under the provision of Section 14-B of the Act, 1952, the amount of damages under Section 14-B is required to be recovered. Making observation to that effect at paragraph 22, it has been observed as referred hereinbelow :-
22. The reason is that while in the above cases decided by this Court the exercise of powers by the authority at a very belated stage was likely to result in the deprivation of property which
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rightly and lawfully belonged to the person concerned, the position under Section 14-B of the Act of an employer is totally different. The employer who has defaulted in making over the contributions to the Trust Fund had, on the other hand, the use of monies which did not belong to him at all. Such a situation cannot be compared to the above line of cases which involve prolonged suspense in regard to deprivation of property. In fact, in cases under Section 14-B if the Regional Provident Fund Commissioner had made computations earlier and sent a demand immediately after the amounts fell due, the defaulter would not have been able to use these monies for his own purposes or for his business. In our opinion, it does not lie in the mouth of such a person to say that by reason of delay in the exercise of powers under Section 14-B, he has suffered loss. On the other hand, the defaulter has obviously had the benefit of the "boon of delay" which "is so dear to debtors", as pointed out by the Privy Council in Nagendranath De v. Sureshchandra De [ILR (1932) 60 Cal 1 : AIR 1932 PC 165] . In that case, it was observed that equitable considerations were out of place in matters of limitation and the strict grammatical construction alone was the guide. Sir Dinshaw Mulla stated:
"Nor in such a case as this is the judgment-
debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and if he is virtuously inclined there is nothing to prevent his paying what he owes into court."
(emphasis supplied) The position of the employer in case of default under Section 14-B is no different.
However, it has also been laid down that before passing such order opportunity of hearing is required to be provided.
10. We have examined the issues involved in the instant case as also the contention raised by the learned counsel for the writ petitioner/appellant.
First contention is that the reasonable opportunity of hearing has not been provided but such contention is contrary to the record as would be evident from the order passed by the Authority under Section 14-b of the Act, 1952 wherein specific reference about the appearance of representative of the establishment namely Shri Shailesh Kumar Gupta, Manager (HRD) has been made who had
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appeared on 16.02.2010 and admitted about default. The relevant part of the order is being quoted hereinbelow :-
"On 16/02/2010, Sri Shailesh Kumar Gupta, Manager (HRD), appeared on behalf of the establishment.
It has been submitted by the authorized representative of the establishment that the default as mentioned in the notices have been scrutinized/verified with relevant records of the establishment and found to be correct. He is also submitted that they have deposited the 7-Q amount Rs.2,43,787/- as assessed vide 7-A order dated 05/11/2007. The contention of the establishment is verified with the office records and necessary adjustment has been made accordingly."
Therefore, we are of the view that it is not a case where the establishment has not been provided an opportunity of hearing before passing the order under Section 14-B of the Act, 1952 as provided under the first proviso to Section 14-B, rather, the representative of establishment has admitted the default saying to be "correct" and it is settled that in absence of dispute or denial of claim it will not be available for the party to take the ground of denial of an opportunity since opportunity of hearing is required to be provided only in case the claim/fact, if disputed, and in such circumstances if it will be remitted, no purpose will be served rather it will be empty formality and futile exercise, reference in this regard may be made to judgment rendered by Hon'ble Apex Court in the case of Escorts Farms Ltd. Vrs. Commissioner, Kumaon Division, Nainital, U.P. and Ors., reported in (2004) 4 SCC 281 wherein Hon'ble the Apex Court has held at paragraph-64 which is being quoted herein below:-
"64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of land and some other
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transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India".
In the case of Dharampal Satyapal Ltd Vrs. Deputy Commissioner of Central Excise, Gauhati and Ors., reported in (2015) 8 SCC 519 wherein their Lordships have held at paragraph- 39 which is being quoted herein below:-
"39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straight jacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason perhaps because the evidence against the individual is thought to be utterly compelling- it is felt that a fair hearing "would make no difference"- meaning that a hearing would not change the ultimate conclusion reached by the decision-maker".
Therefore, the contention raised to that effect by the learned counsel for the petitioner/appellant is rejected.
The second ground to the effect that no detailed calculation about the penal damages, as has been calculated under Section 14- B of the Act, 1952, has been provided to the writ petitioner/appellant, has never been the subject matter before the writ court and further, the writ petitioner/appellant has taken the
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said ground without any reasonable explanation and hence, being a bald ground, the same is also rejected.
11. Further, the writ petitioner/appellant has not availed the opportunity of appeal as provided under Section 7-I of the Act, 1952, rather he has preferred the writ petition.
So far as the determination under Section 7-Q of the Act, 1952 is concerned, the same is also not fit to be entertained as because the provision has been made under Section 7-Q about making payment of interest in case of default till the date of the realization of the defaulted amount.
12. This Court has further considered that when the determination has been made under Section 7-A of the Act, 1952 as under Section 7-A(1)(b) and the said order has not been questioned by the writ petitioner/appellant, rather the amount has been paid, meaning thereby the dues has been accepted and once there is a dues, there is no denial about the fact that the provision of the Act, 1952 has been flouted and for this reason the provision of Section 14-B has been inserted apart from Section 14 which provides for penal action.
Further, as laid down in the case of Organo Chemical Industries and Another v. Union of India and Others (Supra) read with Regional Provident Fund Commissioner v. K.T. Rolling Mills Pvt. Ltd. (Supra) that even in case of delay there cannot be waiver of any amount under Section 14-B of the Act, 1952, rather the provision has been made by way of a deterrent measure so that the default may not be repeated and if such relaxation would be given by the court of law, as is being sought for, the same would
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ultimately lead in frustrating the very object and intent of the Act, 1952.
13. We, after making such discussions, have also gone through the impugned order passed by the learned Single Judge and found therefrom that the contention agitated by the writ petitioner/appellant to the effect that the order impugned dated 18.02.2010 is not a reasoned one, the same having been rejected by the learned Single Judge, we find no reason to interfere with the same after going through the impugned order dated 18.02.2010 wherein the order has been passed under Section 14-B and 7-Q of the Act, 1952 on the concession of the representative of the establishment and once there is concession of the establishment accepting the dues and default, there will be no occasion to pass reasoned order.
However, as would be evident from the order dated 18.02.2010 the Authority on the basis of verification of record, as per the submission made by the representative of the establishment, has passed such order even adjusted the amount which has been paid under Section 7-Q on earlier occasion and hence the learned Single Judge is right in saying that it is not reasoned one.
Further, the learned Single Judge has also considered the fact about non-filing of the statutory appeal as provided under Section 7- I of the Act, 1952 that also does no suffer from any infirmity as because when the provision of alternative remedy is available, the establishment ought to have approached the appellate authority, more particularly, if the provision of Section 7-I of the Act, 1952
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would be scrutinized along with Rule 7 of the Tribunal (Procedure) Rules, 1997 wherein it has been provided that the appellate forum as under Section 7-I of the Act has got power to adjudicate the issue on the factual dispute but the appellant has not chosen to file an appeal and straightway came to the writ jurisdiction of this Court as provided under Article 226 of the Constitution of India and, therefore, the learned Single Judge is right in making an observation that the writ petitioner did not take step for filing statutory appeal under Section 7-I of the Act, 1952.
However, at this juncture, learned counsel for the writ petitioner/appellant has submitted that the liberty to file an appeal under Section 7-I of the Act, 1952 may be provided but we have consciously refused the said prayer because if such liberty would be granted, the question of limitation will come in way of the writ petitioner/appellant since as per the provision made under Rule 7 of the Tribunal (Procedure) Rules, 1997 any person aggrieved by a notification issued by the Central Government or an order passed by the Central Government or any other authority under the Act, may within 60 days from the date of issue of the notification/order, prefer an appeal to the Tribunal provided that the Tribunal may if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the prescribed period, extend the said period by a further period of 60 days which means an appeal can be filed statutorily within the period of 60 days but subject to extension of limitation for a further period of 60 days, meaning thereby the appeal is only to be entertained if filed within 60 + 60 days beyond
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that the period of limitation cannot be extended otherwise the same would be contrary to the statutory provision as provided under Rule 7 of Tribunal (Procedure) Rules, 1997, therefore, the said prayer is rejected, the issue of applicability of limitation in EPF Act, 1952 has already been decided as would be evident from the judgment rendered in the case of Saint Soldier Modern Senior Secondary School Vs. Regional Provident Fund Commissioner, reported in 2014 (142) FLR 730 (Del.H.C.), wherein it has been laid down that there was no such power with the Appellate Tribunal. The observations made in the judgment are as follows:-
"8. A perusal of the section 7-I of the Act and Rule 7 of the Rules would reveal that the time period for filing an appeal is within 60 days from the date of issue of the notification/order, provided, the Tribunal, if satisfied that for certain sufficient cause, the appeal could not be preferred within the period of 60 days, then, the period to file appeal can be extended to 60 days thereafter. Suffice to state, the provision does not vest any power with the Tribunal to condone a delay beyond that period..."
A similar view was again taken in the case of Lotus Chemicals Pvt. Ltd. v. Assistant Provident Fund Commissioner, (Compl.) Rourkela, reported in 2018 (157) FLR 440 (Ori.H.C.), wherein it was held as follows:-
"8.......The procedure for filing of appeal has been provided under the provision of Rule 7 of the Employees Provident Fund Appellate Tribunal (Procedure) Rules, 1997, wherein it has been provided under Regulation 7(2) that the appeal may be filed within 60 days from the date of issuance of notification/order, provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from preferring appeal within the prescribed period, may extend the said period by a further period of 60 days, meaning thereby the appeal is to be filed before the appellate Tribunal within a maximum period of 120 days subject to its condonation and beyond that it cannot be extended. It is
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settled that if any legislation has been provided, it has to be followed in its strict sense and if there is specific time period framed in the legislation to entertain an appeal, the authorities concerned are not supposed to extend that period by assuming the power conferred under the Limitation Act, 1963. Here in the instant case, the maximum period of filing an appeal is 60 days, subject to its condonation for a further period of 60 days, hence the condonation is only to be done for maximum period of 60 days, which suggests that the provision of Limitation Act, 1963 will not be applicable.
9. It is settled position of law that the court of law or the Tribunal is supposed to follow the statutory provision and it cannot be interpreted, if there is no ambiguity and it is settled that the things is to be done as per the statutory provision, hence applying the said principle, it is the considered view of this Court that the Tribunal has not committed any error in passing the order under Section 7-I by rejecting it, since appeal was preferred after delay of 260 days, hence the Tribunal is having no power to condone the said delay period, in view of the provision of Rule 7 of the Employees Provident Fund Appellate Tribunal (Procedure) Rules, 1997 as discussed herein above."
Reiterating a similar view, in the case of Bihar Shiksha Pariyojna Parishad v. Regional Provident Fund Commissioner, Employees' Provident Fund Organization and another, reported in 2017 (155) FLR 657 (Pat.H.C.), it has been held as follows :-
"18. Thus, in view of the fact that the limitation is prescribed by specific Rule 7(2) of 'the Rules' as also in view of the ratio laid down by the Supreme Court in Commissioner of Customs and Central Excise v. Hongo India Private Limited & Anr. (supra) and M/s. Patel Brothers v. State of Assam & Ors. (supra), condonation of delay has also to be considered within the purview of the statutory provision and the provisions of the Limitation Act cannot be imported or made applicable into 'the Act' and 'the Rules'. In that view of the matter, no illegality can be found with the order impugned passed by the Tribunal."
The question with regard to condonation of delay by applying Section 5 of the Limitation Act, 1963, in the context of filing an appeal and reference under the Central Excise Act, came up for
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consideration in the case of Commissioner of Customs and Central Excise Vs. Hongo India Private Limited and another12, and taking into consideration that the Central Excise Act is a special law and a complete code by itself, it was held that the time limit prescribed for making a reference thereunder is absolute and unextendable by the Court under Section 5 of the Limitation Act, 1963. The relevant observations made in the judgment are as follows:-
""30. In the earlier part of our order, we have adverted to Chapter VI-A of the Act which provides for appeals and revisions to various authorities. Though Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to the Appellate Tribunal. Also an additional period of 90 days in the case of revision by the Central Government has been provided. However, in the case of an appeal to the High Court under Section 35-G and reference application to the High Court under Section 35-H, Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act."
The principle of implied exclusion of the Limitation Act by a special law was reiterated in the case of Patel Brothers Vs. State of Assam and others13, where in the context of the provision for filing a revision under the Assam Value Added Tax Act, 2003 it was held that even if there exists no express exclusion in the special law, the court has right to examine the provisions of the special law to arrive at a conclusion as to whether the legislative intent was to exclude the operation of the Limitation Act. The judgment of the High Court rendered in the case of Patel Brothers Vs. State of Assam and others14 was affirmed. The relevant observations made in the judgment are as follows :-
"22. The High Court has rightly pointed out the well-settled principle of law that: (Patel Bros. case [Patel Bros. v. State of Assam, 2016 SCC OnLine Gau 124], SCC OnLine Gau para
19)
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"19. ... ''the courts cannot interpret a statute the way they have developed the common law "which in a constitutional sense means judicially developed equity". In abrogating or modifying a rule of the common law the courts exercise "the same power of creation that built up the common law through its existence by the Judges of the past". The court can exercise no such power in respect of statutes. Therefore, in the task of interpreting and applying a statute, Judges have to be conscious that in the end the statute is the master not the servant of the judgment and no Judge has a choice between implementing the law and disobeying it.' [Ed.: See Principles of Statutory Interpretation, 14th Edn., p. 26 by Justice G.P. Singh.] "
What, therefore, follows is that the court cannot interpret the law in such a manner so as to read into the Act an inherent power of condoning the delay by invoking Section 5 of the Limitation Act, 1963 so as to supplement the provisions of the VAT Act which excludes the operation of Section 5 by necessary implication".
On the point of implied exclusion of the Limitation Act by a special law reference may be had to an earlier judgment in the case of Hukumdev Narain Yadav Vs. Lalit Narain Mishra, reported in (1974) 2 SCC 133, wherein while examining whether the Limitation Act would be applicable to the provisions of the Representation of the People Act, it was observed as follows :-
"17.... what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation."
The aforementioned legal position has been reiterated in the case of the State of Himachal Pradesh and others Vs. Tritronics India Private Ltd. reported in 2018 SCC OnLine HP 757, where the issue involved was as to whether a revision under the Himachal Pradesh Value Added Tax Act, 2005 which was beyond the period of
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limitation prescribed under the statute could be entertained by applying Section 5 of the Limitation Act, and it was stated as follows :-
"28..... taking into consideration the fact that Himachal Pradesh Value Added Tax Act, 2005, is a complete code in itself, which, in other words, is both a substantive as well as a procedural law and as there is no provision contained in the Act, making the provisions of Limitation Act applicable to the proceedings which are to originate from the Act, we hold that this Court has no inherent power to condone the delay in entertaining a Revision Petition which stands filed beyond the period of limitation prescribed in the Act."
In a recent judgment in the case of Bengal Chemists and Druggists Association Vs. Kalyan Chowdhury reported in (2018) 3 SCC 41, it was held in the context of the Companies Act, 2013, that the limitation for filing an appeal to the Appellate Tribunal which is 45 days under Section 421 (3) plus additional 45 days grace period in terms of its proviso, are mandatory in nature and no further time can be granted beyond this total period.
In this regard, it is relevant to refer to a judgment of the Hon'ble Apex Court in the case of Commissioner of Customs, Central Excise, Noida v. Punjab Fibres Ltd. Noida reported in (2008) 3 SCC 73 wherein consideration was made as to whether the High Court has power to condone the delay in presentation of the reference under Section 35-H(1) of the Act, the Division Bench of the High Court, taking note of the said provision and the other related provisions following the ratio laid down in the case of Singh Enterprises v. Commissioner of Central Excise, Jamshedpur and Others reported in (2008) 3 SCC 70 and has been pleased to hold at paragraph -8 which is quoted hereunder :-
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"8. Recently in Singh Enterprises v. CCE [(2008) 3 SCC 70 : (2007) 14 Scale 610] the scope for condonation of delay beyond the prescribed period was considered. It was inter alia noted as follows: (SCC pp. 69-70, paras 6-8) "6. At this juncture, it is relevant to take note of Section 35 of the Act which reads as follows:
'35. Appeals to Commissioner (Appeals).--(1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) [hereafter in this Chapter referred to as the Commissioner (Appeals)] within sixty days from the date of the communication to him of such decision or order:
Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.
(2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner.'
7. It is to be noted that the periods 'sixty days' and 'thirty days' have been substituted for 'within three months' and 'three months' by Act 14 of 2001, with effect from 11-5-2001.
8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are not vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided.
It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short the 'Limitation Act') can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days' time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period."
Above being the position, the High Court was justified in holding that there was no power for condonation of delay in filing reference application."
14. In view of the foregoing discussion, the legal position which
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emerges that in terms of Section 7-I (2) every appeal is to be filed in such form and manner, within such time and be accompanied by such fees, as may be prescribed. Rule 7 (2) of the Rules, 1997 provides for filing of the appeal within 60 days from the date of issuance of the order. The first proviso thereunder further stipulates that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the prescribed period, extend the said period by a further period of 60 days.
It is thus seen that the EPF Act is a special law providing for institution of provident funds, pension fund and deposit-linked insurance fund for employees in factories and other establishments and in terms of the rules framed thereunder a certain period of limitation for filing an appeal having been provided for in clear terms and a further provision having been made for extension of such period only upto a specified time period and no further, the Appellate Tribunal would have no jurisdiction to treat within limitation, an appeal filed before it beyond such maximum time limit specified in terms of the statutory rules.
Moreover, in terms of the scheme and the intent of the provisions contained in the EPF Act it is seen that the legislature intended it to be a complete code by itself. As a consequence, even if the provisions of the Limitation Act may be held to have not been expressly excluded the principle of implied exclusion would apply in terms of the nature of the subject matter, the purpose and the scheme of the Act. The provisions contained under the Limitation
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Act, 1963 would therefore not be applicable for seeking extension of time beyond the statutory time period of 60 days from the date of issue of the notification/order, extendable by a further period of 60 days, upon the Tribunal being satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the prescribed period. The maximum period for filing the appeal would be thus 120 (60+60) days from the date of the issuance of the notification/order which is sought to be challenged.
It is a well settled principle of statutory interpretation that where the statute confers power on the authority to condone the delay only to a limited extent the same cannot be stretched or extended beyond what has been provided under the statute.
15. We, after considering the facts in its entirety as discussed hereinabove, are of the view that the order passed by the learned Single Judge requires no interference, therefore, the present appeal is liable to be dismissed. Accordingly, the instant appeal is dismissed.
(Dr. Ravi Ranjan, C.J.) I agree (Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad,J.) Birendra/ A.F.R.