IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 23435 of 1999(M)
1. REG.PROVIDENT FUND COMMISSIONER
... Petitioner
Vs
1. THE EMPLOYEES' PROVIDENT FUND APPELLATE
... Respondent
For Petitioner :SRI.N.N.SUGUNAPALAN (SR.)
For Respondent :SMT.T.D.RAJALAKSHMI
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :23/03/2009
O R D E R
S. SIRI JAGAN, J.
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O.P.No. 23435 OF 1999
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Dated this the 23rd day of March, 2009
JUDGMENT
The Regional Provident Fund Commissioner is the petitioner
in this original petition. He is challenging Ext.P3 order of the
Employees Provident Fund Appellate Tribunal, wherein Exts.P1
and P2 orders, whereby damages were imposed on the 2nd
respondent in terms of Paragraph 32A of the Employees
Provident Fund Scheme 1952 have been interfered with by the
Tribunal reducing the damages payable by the 2nd respondent for
delayed payment of contributions, under Section 14B of the
Employees Provident Funds and Miscellaneous Provisions Act to
17% per annum on the amount of default. The contention of the
petitioner is that in so far as the Scheme contemplates imposition
of damages as provided under paragraph 32A of the Employees
Provident Fund Scheme, the Tribunal cannot interfere with the
damages imposed as per the rates fixed in paragraph 32A.
2. I have heard both parties. The question as to
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whether the application of paragraph 32A is automatic and
whether the question of imposition of damages has to be
considered taking into account the circumstances leading to
the delay in payment, like strike of employees, operational
difficulties etc., have been considered by me in the decision of
Indian Telephone Industries Ltd. V. Assistant Provident
Fund Commissioner and Others [2006(3) KLJ 698], in
which I had held that the imposition of damages is not
automatic and paragraph 32A cannot be applied without
considering other aspects of the matter, in so far as the
imposition of damages is penal in nature and it cannot be
imposed unless there is deliberate disobeyance of provisions of
law and contumacious conduct on the part of the employer.
In this case, from Ext.P3 I find that the Tribunal had
considered every aspect of the case and had come to the
conclusion that the proper damages to be imposed on the 2nd
respondent is 70% per annum on the ground of default. I do
not think that the discretion exercised by the Tribunal is in
anyway unsustainable. Accordingly the original petition is
dismissed.
S. SIRI JAGAN, JUDGE
Acd
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