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1 - 10 of 10 (0.59 seconds)Article 14 in Constitution of India [Constitution]
Abdulla A. Latifshah vs Bombay Port Trust And Ors. on 1 August, 1990
16. Shri Cama relied upon the decision of this Court in the case of Abdulla A. Latifshah v. The Bombay Port Trust and Ors. reported in 1990 II CLR 390 wherein it was held that the departmental enquiry which was initiated against the delinquent employee after considerable delay was liable to be quashed as the employee on account of the delay was entitled to presume that the department had either abandoned or given up the charges against him. The above case related to a departmental enquiry conducted against a delinquent employee for misconduct. The misconduct alleged was in respect of an offence of theft. The delinquent in that case was acquitted in the criminal trial. After acquittal he was taken back in service and allowed to work. It was after a period of about 5 years that the enquiry in question was initiated. It was, in these circumstances and on other independent grounds, that the enquiry was held to be liable to be quashed.
Amin Chand & Sons vs State Of Punjab And Ors. on 23 July, 1964
17. Shri Cama further relied upon the decision of the Punjab High Court in the case Amin Chand & Sons v. State of Punjab and Ors. reported in AIR 1965, Punjab P. 441. The Punjab High Court on the facts and circumstances of the case was pleased to hold that the undue and unexplained delay in initiating proceedings under Section 14-B was fatal. There was a failure of not following the principles of natural justice and hence the impugned order levying damages was quashed. In my judgment, whether there has been an undue and unexplained delay in initiating proceedings and whether there has been an infraction of the principles of natural justice would depend upon the facts of each individual case. If it is shown that the employer has been prejudiced on account of the delay; that the employer has been prejudiced in setting up a proper defence to the show cause notice and to lead evidence in support thereof on the ground that he has not maintained the relevant record, it is possible to hold that there has been an infringement of the principles of natural justice and therefore, the order levying damages is liable to be quashed. In the present case, however, it will be seen that the petitioner has not filed any reply whatsoever to the show cause notice. Though as many as ten adjournments were granted, the petitioners failed to submit their explanation. They chose to remain absent. This is not a case where the petitioners have filed a reply and have taken up a contention that they have, on account of passage of time, not maintained the relevant record for the period in question and therefore they are not in a position to take up a proper defence. It will therefore not be open for the petitioners to take up the points for the first time in the writ petition i.e. prejudice being suffered by the petitioners on ground of delay. It is to be noted that so tar as Section 14-B is concerned, there is no period of limitation prescribed within which action for the recovery of damages can be instituted against the defaulter. It is to be realised that amount of provident fund dues consist of deductions made from wages of the workers as well. If an employer deducts these contributions from wages and sits tight over them, he as a trustee is liable to account for the same at any time. It is no defence for him to say that he will cease to be accountable after a given fixed period. Legislature has advisedly not prescribed any period of limitation for issuing show cause notice against such defaulting trustees-employers. It is also to be noted that the Act is a beneficial piece of legislation meant for the welfare of weaker section of society namely the employees. Such employees have no control over the acts and omissions of authorities exercising their powers under the Act. If such authority out of negligence or otherwise fails to issue show cause notice against defaulting employer promptly, there is no rhyme or reason why innocent beneficiary employer who are third parties should suffer thereby. The only question that would really survive is the one whether on the facts and circumstances of a given case, the show cause notice issued after lapse of reasonable time can be said to be issued beyond reasonable time. The test whether lapse of time is reasonable or not will depend upon the further fact that whether the employer in the mean time has changed his position to his detriment and is likely to be irretrievably prejudiced by the belated issuance of such a show cause notice. If such defence is not pleaded and proved, challenge on the ground of late issuance of notice must stand rejected.
D.S. Nakara & Others vs Union Of India on 17 December, 1982
In other words, there ought to be casual connection between the basis of classification and the object of the statute. The classification has to be based, as is well-settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved. A discriminatory action is liable to be struck down unless it can be shown by the Government that the departure was not arbitrary but was based on some valid principle which in itself was not irrational, unreasonable and discriminatory. See D.S. Nakara and Ors. v. Union of India . In the present case what has been done by the aforesaid circulars is that the employers who were found guilty of default for a period prior to September, 1982 will be liable to pay damages which can extend upto 100% whereas the employers who committed defaults for the period October 1982 and thereafter will be liable to pay damages only upto 25% of the amount in arrears. Why the two sets of employers are to be differently treated is not explained. In my view, there is no justification to treat the defaults committed prior to September 1982 and the defaults committed in October, 1982 and thereafter differently. If the defaults which are committed for the period October 1982 and thereafter are liable to be visited with damages only upto the extent of 25% of the amount in arrears. I do not see any valid reason why the same benefit should not be extended to the employers who are found guilty of default for the period prior to September, 1982. If the employers guilty of default for the period prior to September, 1982 are treated differently from the employers who are guilty of default for the period of October, 1982 and thereafter the same would attract the mischief of Article 14 of the Constitution. The employers like the petitioners who are guilty of default for the period prior to September 1982 will therefore be entitled to get equal treatment along with the employers who are guilty of default for the period October 1982 and onwards. Hence the maximum penalty, which can be imposed upon the petitioners, will be to the extent of 25% of the amount in arrears.
Sushma Fabrics Pvt. Ltd. vs Union Bank Of India And Anr. on 15 January, 1991
11. Shri Cama next submitted that the impugned order is not a speaking order. It merely applies the standard table for levy of damages and it does not give reasons for imposition of damages in accordance with the table. According to Shri Cama the second respondent ought to have, given reasons for imposing damages in respect of each default committed by the petitioners. Shri Cama relied upon an unreported decision of this Court in the case of Sushama Fabrics Ltd. v. Union of India in Writ Petition No. 1499 of 1984 and Writ Petition No. 1300 of 1988 decided by my learned brother S.M. Daud, J. on 15th January, 1991. According to Shri Cama, the second respondent ought to have passed a reasoned order specifying the amount on damages levied under the head of (i) actual loss, and (ii) punitive damages.
The Employees' Provident Funds Scheme, 1952
Organo Chemical Industries & Anr vs Union Of India & Ors on 23 July, 1979
"As laid down in : (1979) 2 LLJ 416 Organo Chemical Industries v. Union of India , the damages contemplated under Section 14-B of the Employees' Provident Funds Act cover (a) compensation for actual loss and (b) the punitive element. The authority assessing the damages is obliged to write a speaking order of his assessment setting out the reasons for it so that it was readily exposed to the scrutiny of the Court exercising writ jurisdiction, which is a guarantee against arbitrariness. The assessment of damages is a vital aspect of the function of the quasi-judicial authority under Section 14-B. Merely calculating damages after having a look at the standard table for levy of damages prepared by the Central Board of Trustees of the Employees Provident Fund is not legal. No executive or administrative authority can in any manner channel the discretion of a judicial or quasi-judicial authority by directives or guidelines. When the judicial or quasi-judicial authority acts upon the directives or guidelines his decision is impaired. The contention that the table had been formulated so all those assessing the damages under Section 14-B can conform and not pass orders which were characterised as arbitrary or capricious in fact begs the question. A quasi-judicial authority is not expected to conform but use his own judgment and support it by a speaking order".
Josts Engineering Limited, Bombay vs Union Of India And Another on 6 October, 1982
In my view, the above case can apply only to cases where the employers in response to the show cause notice file their replies and adduce evidence in support. In such a case there is a lis between the parties. The Regional Provident Fund Commissioner in such a case would be bound to decide the issues arising between the parties by supporting them by reasons. If the reply of the employer gives different reasons for the default in respect of different periods, naturally the Provident Fund Commissioner will be obliged to give reasons for deciding each of the defaults separately. There can, therefore, be no quarrel in respect of the propositions laid down in the above cases. However, in the present case, the employer has failed to file a reply, failed to adduce evidence and has chosen to remain absent. In the present case ten adjournments were granted but no reply was filed. I fail to see what reasons can be expected from the Provident Fund Commissioner.
K.F. Mody And Co. vs Union Of India (Uoi) And Ors. on 13 November, 1984
12. Shri Cama next relied upon another decision of this Court in the case of Mody and Co. and Ors. v. Union of India in Writ Petition No. 1781 of 1984, decided by my learned brother T.D. Sugla, J (as he then was) wherein reliance was placed in the aforesaid case of Josts Engg. Ltd. (supra), the order impugned therein was quashed and the matter was remanded back to the Regional Provident Fund Commissioner with a direction to pass a fresh speaking order taking into account the period of default in each case. Placing reliance on the above observations, Shri Cama submitted that it was obligatory on the part of the second respondent to have given reasons for imposing damages for each default. The impugned order not having given any reasons whatsoever smacks of non-application of mind and is liable to be quashed.
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