Himachal Pradesh High Court
________________________________________________________ vs Presiding Officer on 3 April, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 1649 of 2016
Decided on: April 3, 2023
________________________________________________________
M/s Maharaja Lakshman Sen Memorial College, Sunder Nagar
.........Petitioners
.
Versus
Presiding Officer, Employees Provident Fund Appellate Tribunal and
another ...Respondents
________________________________________________________
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
________________________________________________________
For the petitioner: Mr. Yudhvir Singh Thakur, Advocate.
For the respondents: Mr. Rahul Mahajan, Advocate.
________________________________________________________
Sandeep Sharma, J. (oral)
By way of instant petition filed under Art. 226 of the Constitution of India, challenge has been laid to order dated 2.3.2016 Annexure P-2 passed by Provident Fund Appellate Tribunal, New Delhi, whereby appeal filed by the petitioner under S.7(i) of Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter, 'Act' came to be dismissed.
2. Precisely, the facts, as emerge from the record, are that since the petitioner-Institution failed to deposit the provident fund and other allied dues to its employees, as per provisions of the Act and Employees Provident Fund Scheme (hereinafter, 'Scheme') framed thereunder, office of Assistant Provident Fund Commissioner issued a Show Cause Notice on 29.4.2014, calling upon the petitioner to show cause that why damages under S.14B and interest under S.7Q may not be recovered on account of default in making payment within stipulated period. Alongwith aforesaid Show Cause Notice, details of ::: Downloaded on - 04/04/2023 20:33:23 :::CIS -2- default committed by the petitioner-Institution were furnished, enabling the petitioner Institution to deposit the amount of damages under S.14B and interest under S.7Q of the Act, within seven days. Though, the .
petitioner-Institution by way of a detailed reply dated 13.5.2014 (Annexure P-16) rendered explanation for not depositing the provident fund and other allied dues within stipulated time but the Assistant Provident Fund Commissioner vide order dated 23.3.2015 (Annexure P-20) directed the petitioner-Institution to deposit a sum of Rs.95,75,435/- i.e. Rs. 64,42,965 on account of damages under S.14B and Rs.31,32,470/- on account of interest under S.7!. Pursuant to aforesaid direction, petitioner-Institution deposited Rs.31,32,470/-
under S.7Q and 25% of amount levied on account of damages under S.14B and amount of Rs.48,28,671/- remained to be paid by the petitioner-Institution.
3. Being aggrieved by the order dated 23.3.2015 passed by Assistant Provident Fund Commissioner, petitioner-Institution preferred an appeal under S.7I of the Act (Annexure P-22) before Employees Provident Fund Appellate Tribunal, who vide order dated 2.3.2016 rejected the appeal, as such, petitioner-Institution has approached this Court in the instant proceedings, praying therein for quashing and setting aside order dated 2.3.2016 (Annexure P-25) passed by the Employees Provident Fund Appellate Tribunal and order dated 23.3.2015 (Annexure P-20) passed by Assistant Provident Fund Commissioner, Shimla.
::: Downloaded on - 04/04/2023 20:33:23 :::CIS -3-4. Having heard learned counsel for the parties and perused the material available on record, this Court finds that there is no dispute regarding assessment order under S.7Q, which has attained finality, .
because at no stage, same ever came to be laid challenge in the superior court of law. Dispute raised in the instant proceedings is only qua damages imposed under S.14B of the Act. Though, vide order impugned in the instant proceedings, interest was also imposed under S.7Q, but since the same already stands deposited, this Court has no reason to go into the correctness of the order thereby imposing interest under S.7Q of the Act.
5. Mr. Yudhvir Singh Thakur, learned counsel for the petitioner, while making this Court peruse the reply to Show Cause Notice (Annexure P-16), vehemently argued that once factum with regard to financial condition /inability of the petitioner-Institution to pay the dues within stipulated time was brought to the notice of the authority concerned, it ought to have waived or reduced the damages. While making this Court read provisions of S.14B, learned counsel for the petitioner argued that the law makers have used the word "may" which clearly suggests that the imposition of penalty/damages, if any, by the authority under aforesaid provision of law, would depend on various factors including financial condition of the Institution seeking wager/reduction. In support of his aforesaid submission, learned counsel for the petitioner invited attention of this Court to judgment dated 21.9.2015 passed by High Court of Delhi in LPA No. 629 of 2011 ::: Downloaded on - 04/04/2023 20:33:23 :::CIS -4- titled Assistant Provident Fund Commissioner v. Hi-Tech Vocational Training Centre, wherein High Court, categorically ruled that merely because a power has been vested in a superior authority to .
reduce or waive the damages would not mean that the adjudicatory authority is left with no discretion.
6. Mr. Rahul Mahajan, Advocate appearing for the respondents, while refuting aforesaid submissions made by learned counsel for the petitioner, argued that since there is no dispute, if any, with regard to the fact that provident fund or any other allied dues required to be deposited by the petitioner-Institution were not deposited well within time, no illegality can be said to have been committed by the respondents, while imposing damages under S.14B, which empowers respondents to levy damages on account of default or delay in depositing the provident fund and other allied dues. Mr. Mahajan further argued that though bare perusal of order impugned in the instant proceedings itself suggests that specific argument raised with regard to financial inability of the petitioner-Institution was clearly dealt by the respondents, while passing impugned order, but otherwise also, it is well settled by now that financial crunch or financial inability, if any, of the petitioner-Institution cannot be a ground for waiver or reduction of damages. In support of his aforesaid submission, he placed reliance upon judgment rendered by High Court of Judicature, Orissa in case titled EssKay machinery (Private) Ltd. v. Regional Provident Fund Commissioner, Orissa decided on 11.2.1998, reported in 1998(4) ::: Downloaded on - 04/04/2023 20:33:23 :::CIS -5- L.L.N. 411 and judgment of High Court of Judicature for Rajasthan at Jodhpur in S.B. Civil Writ Petition No. 6631/2010 titled Seva Mandir, Udaipur v. The Employees Provident Fund Appellate Tribunal, .
New Delhi, decided on 15.1.2013. Lastly, Mr. Mahajan invited attention of this Court to latest judgment rendered by Hon'ble Apex Court in Horticulture Experiment Station, Gonikoppal, Coorg v. Regional Provident Fund Organization, (2022) 4 SCC 516, to contend that there is no further requirement upon the authority concerned to examine existence of element of actus reus/ mens rea, or to examine issue of justification, for imposing damages.
7. Before ascertaining the correctness and genuineness of the rival submissions made by learned counsel for the parties, it would be apt to take note of S.14B of the Act and Clause 32A of the Scheme, which read as under:
"14B Power to recover damages.--Where an employer makes default in the payment of any contribution to the Fund 46 [, the 47 [Pension] Fund or the Insurance Fund] or in the transfer of accumulations required to be transferred by him under sub-section (2) of section 15 4[or sub-section (5) of section 17] or in the payment of any charges payable under any other provision of this Act or of 5[any Scheme or Insurance Scheme] or under any of the conditions specified under section 17, 6[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 7[from the employer by way of penalty such damages, not exceeding the amount of arrears, as may be specified in the Scheme:] 8[Provided that before levying and recovering such damages, the employer shall be given a reasonable opportunity of being heard:] 9[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 ::: Downloaded on - 04/04/2023 20:33:23 :::CIS -6- 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.] .
32A. Recovery of damages for default in payment of any contribution (1) Where an employer makes default in the payment of any contribution to the fund, or in the transfer of accumulations required to be transferred by him under sub-section (2) of section 15 or sub-section (5) of section 17 of the Act or in the payment of any charges payable under any other provisions of the Act or Scheme or under any of the conditions specified under section 17 of the Act, the Central Provident Fund Commissioner or such 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, damages at the rates given below: --
TABLE
S.No. Period of default Rates of
r (1) (2) Damages
(percentage of
arrears per
annum)
(3)
(a) Less than two months Five
(b) Two months and above but Ten
less than four months
(c) Four months and above but Fifteen
less than six months
(d) Six months and above Twenty-five
(2) The damages shall be calculated to the nearest rupee, 50 paise
or more to be counted as the nearest higher rupee and fraction of a rupee less than 50 paise to be ignored."
8. Careful perusal of S.14B clearly suggests that Department is empowered 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 required to ::: Downloaded on - 04/04/2023 20:33:23 :::CIS -7- 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.
Similarly provision contained under Clause 32A of the Scheme, clearly provide that where an employer makes default in the payment of any contribution to the fund, or in the transfer of accumulations required to be transferred by him under sub-section (2) of section 15 or sub-section (5) of section 17 of the Act or in the payment of any charges payable under any other provisions of the Act or Scheme or under any of the conditions specified under section 17 of the Act, the Central Provident Fund Commissioner or such 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, damages at the rates given in table under Clause 32A of the Scheme.
9. Since, in the case at hand, there is no dispute that there was delay in deposit of provident fund dues payable by the petitioner-
Institution, no illegality can be said to have been committed by the Department so far as initiation of proceedings under S.14B of the Act is concerned. The question, which falls for determination in the case at hand is, "whether the authority responsible for levying damages under S. 14B is under obligation to assess the damages strictly in terms of Table given under Clause 32A of the Scheme or it after having taken ::: Downloaded on - 04/04/2023 20:33:23 :::CIS -8- note of plausible explanation, if any, on record by petitioner-Institution qua delay in depositing provident fund dues, can waive or reduce the damages, as required to be recovered under S.14B?"
.
10. Aforesaid question has been already adjudicated by Delhi High Court in Hi-Tech Vocational Training Centre supra. In the aforesaid judgment, Delhi High Court has categorically held that para 32A of the Scheme would mean that the damages indicated in the table of said paragraph fix the upper limit and leave it to the discretion of the authority to determine in each case as to whether or not damages have to be levied, and if yes the extent thereof. Para 32B mirrors the power conferred on the Central Board under the second proviso to Section 14B and thus the argument that since power to waive or lower the penalty is conferred on the Central Board as per Para 32B of the Scheme, the Commissioner would have no power to waive or lower the penalty as per Para 32A of the Scheme, has to be rejected. It would be apt to take note of following paragraphs of the judgment supra:
"5. The legislature has used the word 'may' twice. Firstly with reference to the very recovery itself, apparent from the use of the expression 'may recover'; and secondly with reference to the quantum, apparent from the use of the expression 'not exceeding the amount of arrears as may be specified in the scheme'.
6. In the decision reported as AIR 1979 SC 1803 Organo Chemical Industries Vs. Union of India it was emphasized that imposition of damages under Section 14B is not only meant to penalize the defaulting employer but is also to provide reparation for the amount of loss suffered by the employees. The Madras High Court, the Andhra Pradesh High Court, the Bombay High Court and the Punjab & Haryana High Court, in the decisions reported as 90 ::: Downloaded on - 04/04/2023 20:33:23 :::CIS -9- Factories Journal Reports 220 Snap Tap Machine Accessories (India) Pvt. Ltd. Vs. Regional Provident Fund Commissioner, 34 Factories Journal Report 140 Pioneer Sports Works Pvt. Ltd. Vs. State of Punjab, (1998) III LLJ (Supp.) Dhandava Co-operative Sugar Ltd. Vs. Regional Provident Fund Commissioner, 1986 Lab.IC 650 Regional .
Provident Fund Commissioner Vs. The South India Flour Mills Pvt. Ltd. and (1995) I LLJ 1145 Vegetable Vitamins Food Co. Ltd. Vs. Regional Provident Fund Commissioner have consistently taken a view that the Commissioner is bound to take into account aggravating and mitigating circumstances while determining damages and cannot levy damages mechanically. While considering a pari-materia provision under the Employees State Insurance Act, 1948, in the decision reported as (2008) 3 SCC 35 ESI Corporation Vs. HMT Ltd., the Supreme Court held that the statute does not mandate that in every case a penalty has to be levied and has left it to the discretion of the authority to decide whether penalty has to be levied, as also quantum thereof. The said decision brings out that if the provision concerning imposition of penalty contemplates adjudicatory proceedings, imposition of penalty would ordinarily not be mandatory and existence of mens rea i.e. what triggered the late deposit would be relevant.
7. In light of the case law and the language of Section 14B it is apparent that the legislature has vested a discretion in the Commissioner to levy damages with further discretion to determine such damages as he may determine.
8. The argument of learned counsel for the appellant based on the second proviso to Section 14B was that the legislature had vested the power in the Central Board to reduce or waive the damages and thus it would be mandatory upon the Commissioner to not only levy damages but even the quantum as specified in the scheme.
9. Merely because a power has been vested in a superior authority to reduce or waive the damages would not mean that the adjudicatory authority is left with no discretion.
10. A perusal of Para 32A of the Employees Provident Fund Scheme, 1952 would show that the legislature has once again used ::: Downloaded on - 04/04/2023 20:33:23 :::CIS
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the word 'may' in the phrase 'may recover from the employer by way of penalty'. Para 32A of the scheme is in conformity with the main section. The discretion in the Section is retained in the scheme. The table referred to in Para 32A is indicative of, and to put it differently by way of guidance to the Commissioner as to the rate of damages which .
could be levied as the maximum levy. Thus, Para 32A of the scheme would mean that the damages indicated in the table of said paragraph fix the upper limit and leave it to the discretion of the authority to determine in each case as to whether or not damages have to be levied, and if yes the extent thereof. Para 32B mirrors the power conferred on the Central Board under the second proviso to Section 14B and thus the argument that since power to waive or lower the penalty is conferred on the Central Board as per Para 32B of the Scheme, the Commissioner would have no power to waive or lower the penalty as per Para 32A of the Scheme, has to be rejected on the reasoning given by us in para 8 and 9 above.
11. Though, aforesaid judgment rendered by High Court of Delhi was taken in appeal before Hon'ble Apex Court, but the appeal/SLP diary No. 18170/2016 titled Central Provident Fund Commissioner v.
M/s D.C.N. Shriram Consolidation Ltd. was dismissed for non-
prosecution vide order dated 22.2.2017, and as such, judgment passed by Delhi High Court supra, has attained finality.
12. At this stage, learned counsel for the petitioner invited attention of this Court to judgment rendered by Hon'ble Apex Court in ESI Corpn. V. HMT Ltd. (2008) 3 SCC 35 to argue that even if the regulations have prescribed general guidelines and the upper limits at which the imposition of damages can be made, it cannot be contended that in no case, the mitigating circumstances can be taken into ::: Downloaded on - 04/04/2023 20:33:23 :::CIS
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consideration by the adjudicating authority. It would be apt to take note of following paras of aforesaid judgment:
"21. A penal provision should be construed strictly. Only because a provision has been made for levy of penalty, the same by itself would .
not lead to the conclusion that penalty must be levied in all situations.
Such an intention on the part of the legislature is not decipherable from Section 85B of the Act. When a discretionary jurisdiction has been conferred on a statutory authority to levy penal damages by reason of an enabling provision, the same cannot be construed as imperative. Even otherwise, an endeavour should be made to construe such penal provisions as discretionary, under the statute is held to be mandatory in character.
22. In Prestolite (India) Ltd. v. Regional Director and Anr. [1994 Supp.(3) SCC 690], this Court rejected a contention raised by the Regional Director of Employees Insurance that under the Employee's State Insurance General Regulations guidelines have been indicated showing as to how damages for delayed payment are to be imposed and since such guidelines have been followed, no exception should be taken thereto made to the impugned adjudication, stating :
"5......Even if the regulations have prescribed general guidelines and the upper limits at which the imposition of damages can be made, it cannot be contended that in no case, the mitigating circumstances can be taken into consideration by the adjudicating authority in finally deciding the matter and it is bound to act mechanically in applying the uppermost limit of the table. In the instant case, it appears to us that the order has been passed without indicating any reason whatsoever as to why grounds for delayed payment were not to be accepted. There is no indication as to why the imposition of damages at the rate specified in the order was required to be made. Simply because the appellant did not appear in person and produce materials to support the objections, the employee's case could not be discarded in limine. On the contrary, the objection ought to have been considered on merits."::: Downloaded on - 04/04/2023 20:33:23 :::CIS
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23. In Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai and Anr. [(2007) 6 SCC 329], this Court stated :
"40. Thus, it appears that there is distinct line of authorities which clearly lays down that in considering a question of penalty, means rea is not .
a relevant consideration. Even assuming that when the statute says that one is liable for penalty if one furnishes inaccurate particulars, it may or may not by itself be held to be enough if the particulars furnished are found to be inaccurate is anything more needed but the question would still be as to whether reliance placed on some valuation of an approved valuer and, therefore, the furnishing of inaccurate particulars was not deliberate, meaning thereby that an element of mens rea is needed before penalty can be imposed, should have received serious consideration in the light of a large number of decisions of this Court."
24. We agree with the said view as also for the additional reason that the subordinate legislation cannot override the principal legislative provisions.
25. The statute itself does not say that a penalty has to be levied only in the manner prescribed. It is also not a case where the authority is left with no discretion. The legislation does not provide that adjudication for the purpose of levy of penalty proceeding would be a mere formality or imposition of penalty as also computation of the quantum thereof became a foregone conclusion. Ordinarily, even such a provision would not be held to providing for mandatory imposition of penalty, if the proceeding is an adjudicatory one or compliance of the principles of natural justice is necessary thereunder."
13. In the instant case, careful perusal of reply to Show Cause Notice given by the petitioner-Institution clearly reveals that in the proceedings initiated under S.14B for imposition of damages, petitioner-Institution brought to the notice of the authority concerned that it was unable to deposit provident fund dues well within time, on account of reduction/stoppage of Grant-in-Aid to it by the State ::: Downloaded on - 04/04/2023 20:33:23 :::CIS
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Government. Petitioner-Institution in its reply to Show Cause Notice, categorically stated that in 2003-04, Government of Himachal Pradesh removed the element of EPF from the definition of salary in respect of .
95% aided colleges functioning in the State. It is further stated by the petitioner in its reply that in the year 2009, Government of Himachal Pradesh froze 95% Grant-in-Aid to the colleges at the level of 31.3.2008 and even at that level, the Government has not paid the college Rs.2,27,36,575/- due to it as on 31.3.2008. It is stated that the said sum does not include element of EPF and further the Government had recovered Rs.1,28,41,992/- from the college on account of PF.
Relevant portion of the reply is reproduced below:
"However, in 2003-04, the govt. of H.P. removed the element of the EPF from the definition of salary in respect of 955 Aided colleges functioning in the state.
In the year 2009 the Govt. of H.P. had frozen the 95% Grant-in-Aid to the colleges at the level of 31.03.2008. Even at this level, the Govt.
has not paid the college Rs.2,27,36,575/- due to it as on 31.03.2008. This sum does not include the element of the EPF. Further, the govt. has recovered Rs.1,28,41,992/- from the college on account of PF(Annex-III)"
14. Having perused the aforesaid explanation rendered on record qua delay in depositing provident fund dues vis-à-vis the reasoning given in the order passed by Assistant Provident Fund Commissioner, Annexure P-20, this Court finds force in the submission of learned counsel for the petitioner that the authority, while imposing damages under S.14B, failed to take note of aforesaid argument raised by the ::: Downloaded on - 04/04/2023 20:33:23 :::CIS
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petitioner with regard to financial constraints or mitigating circumstances. Order dated 23.3.2015 impugned in the instant proceedings, clearly reveals that pursuant to Show Cause Notice, .
Principal of the petitioner-Institution appeared and sought time to produce record. Since the petitioner-Institution had also raised question with regard to liability to pay/deposit the amount qua certain periods, Provident Fund authorities though granted time to the petitioner-
Institution to produce challans, if any, with regard to deposit of amount by it. Though, it took note of the issue with regard to financial constraints or financial inability of the petitioner-Institution to pay damages, but there is complete non-application of mind to the explanation rendered by the petitioner-Institution for not depositing the provident fund dues in time.
15. Learned counsel for the petitioner placed reliance upon a judgment of Hon'ble Apex Court in Hindustan Times Ltd. v. Union of India, (1998) 2 SCC 242, wherein, it has been held as under:
"10. Section 14.B as amended by Act 40/73 w.e.f. 1.11.1973, confers power on the concerned authority to recover damages. Where an employer makes default in the payment of any contribution to the Trust Fund the concerned authority may recover from the employer by way of penalty such damages, not exceeding the amount of arrears, as may be specified in the scheme. The section itself, after the 1973 amendment, now provides that before levying and recovering damages, the employer shall be given a reasonable opportunity of being hear. The scheme referred to in Section 15-B is the Employees Provident Scheme 1952, so far as provident fund contributions are concerned.::: Downloaded on - 04/04/2023 20:33:23 :::CIS
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29. From the aforesaid decisions, the following principles can be summarised: The authority under Section 14-B has to apply his mind to the facts of the case and the reply to the show cause notice and pass a reasoned order after following principles of natural justice and giving a reasonable opportunity of being heard;...."
.
16. No doubt, during proceedings of the case, learned counsel for the respondent, while referring to certain judgments, which have been taken note above, tried to carve out a case that financial difficulty of the employer cannot be said to be justifiable ground for reduction/waiver of damages, if any, payable under S.14B of the Act but recently, Hon'ble Apex Court in Horticulture Experiment Station supra has categorically held that the authority is under obligation to examine justification for rejecting, while passing order imposing damages under the Act.
17. Though, in the aforesaid judgment, Hon'ble Apex Court had formulated question, 'whether breach of civil obligation or liabilities is committed by the employer is a sine qua non for imposition of penalty/damages' or 'whether the element of actus reus or mens rea is one of the essential elements, has a role to play' but, while answering aforesaid questions, Hon'ble Apex Court categorically held that there is no requirement on the authority concerned to examine element of actus reus or mens rea or examine the issue of justification for imposing damages but it also ruled that the authority is under obligation to examine justification, if any, being tendered, while ordering imposition of damages under the provisions of the Act or not?.In this ::: Downloaded on - 04/04/2023 20:33:23 :::CIS
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regard, it would be apt to take note of following paras of the judgment in Horticulture Experiment Station supra:
"9. Per contra, learned counsel for the respondent(s) in support of submissions, submitted that mens rea is not an essential element for .
imposing penalty for breach of civil obligations or liabilities and mere contravention of the provisions of the Act or default in making compliance of the mandate of law as regards the civil liabilities are concerned, mens rea or actus reus is not the requirement of law to be considered, while imposing damages like, (2008) 3 SCC 35 (2014) 15 SCC 263 (2017) 3 SCC 110 in the instant case, under Section 14B of the Act 1952. In support of submissions, learned counsel has placed reliance on a two- Judge Bench judgment in Chairman, SEBI v. Shriram Mutual Fund and Another5 which has been relied upon by a three-Judge Bench judgment of this Court in Union of India and Others v. Dharmendra Textile Processors and others6.
10. r The question that emerges for our consideration in the instant appeals is that what will be the effect and implementation of Section 14B of the Act 1952 and as to whether the breach of civil obligations or liabilities committed by the employer is a sine qua non for imposition of penalty/damages or the element of mens rea or actus reus is one of the essential elements has a role to play and the authority is under an obligation to examine the justification, if any, being tendered while passing the order imposing damages under the provisions of the Act 1952.
11. Undisputedly, the establishment of the appellant(s) was covered under the provisions of the Act 1952, but still failed to comply with the same and for such non-compliance of the mandate of the Act 1952, initially the proceedings were initiated under (2006) 5 SCC 361 (2008) 13 SCC 369 section 7A and after adjudication was made in reference to contribution of the EPF which the appellant was under
an obligation to pay and for the contravention of the provisions of the Act 1952, the appellant(s) indeed committed a breach of civil obligations/liabilities and after compliance of the procedure prescribed under the Act 1952 and for the delayed payment of EPF contribution ::: Downloaded on - 04/04/2023 20:33:23 :::CIS
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for the period January 1975 to October 1988, after affording due opportunity of hearing as contemplated, order was passed by the competent authority directing the appellant(s) to pay damages as assessed in accordance with Section 14B of the Act 1952."
.
18. Since, in the case at hand, no attempt, if any, ever came to be made by the authority to ascertain the correctness of the claim raised by the petitioner with regard to its financial inability to pay damages or other mitigating circumstances, this Court sees no reason to refer to the judgments pressed into service by the learned counsel for the respondents, with regard to financial difficulties, but certainly, the matter is required to be remanded back to assessing authority under S.14B of the Act with the direction to decide the same afresh, on the basis of material already adduced on record by the petitioner-
Institution.
19. Consequently, in view of above, this Court finds merit in the present petition. Order dated 2.3.2016 (Annexure P-25) passed by the Employees Provident Fund Appellate Tribunal and order dated 23.3.2015 (Annexure P-20) passed by Assistant Provident Fund Commissioner, Shimla are quashed and set aside. Assistant Provident Fund Commissioner, Shimla is directed to pass fresh order, if any, with regard to damages under S.14B of the Act, after having afforded opportunity of hearing to the petitioner-Institution and perused the material placed on record by the petitioner-Institution with regard to its financial inability to pay/deposit the provident fund dues within time.
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20. Learned counsel for the petitioner undertakes to cause presence of his client through a representative or through counsel before Assistant Provident Fund Commissioner, Shimla on 12.4.2023, .
enabling it to do the needful in terms of the instant order. Since matter is hanging fire for quite long, this court hopes and trusts that the needful shall be done by Assistant Provident Fund Commissioner, Shimla, expeditiously, preferably within four weeks, from date of appearance of the petitioner before it.
21. The petition stands disposed of accordingly, alongwith all pending applications.
r to (Sandeep Sharma)
Judge
April 3, 2023
(Vikrant)
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