IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 5663 of 2000(Y)
1. P.J.A.MOHAN
... Petitioner
Vs
1. THE R.P.F.COMMISSIONER
... Respondent
For Petitioner :SRI.S.SUBHASH CHAND
For Respondent :SRI.N.N.SUGUNAPALAN
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :12/09/2007
O R D E R
ANTONY DOMINIC, J.
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O.P.NO.5663 OF 2000-Y
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Dated this the 12th day of September, 2007.
JUDGMENT
The challenge in this writ petition is against Ext.P5 order
issued by the 2nd respondent exercising his power under Section 14
B of the employees Provident Funds and Miscellaneous Provision Act,
1952. Petitioner is the Manager of a firm, which owned a covered
establishment. The establishment was covered from 31.7.1995.
The establishment committed a default for the period from
September, 1995 to October,1996. Although the liabilities were
discharged, proceedings were initiated under Section 14 B by Ext.P3
show cause notice. That was replied by Ext.P4 pointing out the
circumstances which led to the delay in payment. According to
the petitioner, for reasons beyond his control, the dues could not
be paid in time and that such mitigating circumstances justify his
total exoneration from damages. However, in the opportunity of
hearing that was granted, this contention did not appeal to the 2nd
respondent. By Ext.P5, he levied damages at the rate prescribed
in Paragraph 38 A of the scheme 1952. It is the said order,
that is sought to be challenged in this writ petition.
O.P.NO.5663/00 2
2. Though the learned counsel for the writ petitioner do not
dispute the allegation that there was default for the period in
question , the learned counsel would contend for the position that
the authority levying damages did not exercise the discretion
conferred on him in terms of the provisions of the Act. In this
context, the learned counsel for the writ petitioner makes reference
to the counter affidavit wherein it has been pleaded that under
Section 14 B, the 1st respondent has no jurisdiction to reduce or
waive damages.
2. This stand of the 1st respondent does not appear to be the
correct position. Para 14 B of the Act provides for levy of damages .
This confers discretion to the authorities. Therefore, the authority
exercising that power has to consider the facts of each case and then
decide as to what is the rate of damages that has to be levied.
Para 32 only gives a broad communication and the upper limit. This
position is also settled by a series of judgments of this court as also
the Apex Court. Thus in this case, the discretion so conferred has not
been exercised and it is the admitted case as stated in the
counter affidavit.
O.P.NO.5663/00 3
3. Therefore, I dispose of this writ petition quashing Ext.P5 and
directing the 1st respondent to take a fresh decision in the matter after
affording an opportunity of hearing to the petitioner. Orders shall
be passed adverting to the contentions raised by the parties.
With these observations, this writ petition is disposed of .
ANTONY DOMINIC, JUDGE. cl O.P.NO.5663/00 4 ANTONY DOMINIC, J. O.P.NO.5663 OF 2000-Y JUDGMENT 12th September, 2007. O.P.NO.5663/00 5