{"id":131228,"date":"2010-11-01T00:00:00","date_gmt":"2010-10-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-regional-provident-fund-vs-sree-visalam-chit-funds-ltd-on-1-november-2010"},"modified":"2017-01-15T03:45:27","modified_gmt":"2017-01-14T22:15:27","slug":"the-regional-provident-fund-vs-sree-visalam-chit-funds-ltd-on-1-november-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-regional-provident-fund-vs-sree-visalam-chit-funds-ltd-on-1-november-2010","title":{"rendered":"The Regional Provident Fund … vs Sree Visalam Chit Funds Ltd on 1 November, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
The Regional Provident Fund … vs Sree Visalam Chit Funds Ltd on 1 November, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED:  01\/11\/2010\n\nCORAM\nTHE HONOURABLE MRS.JUSTICE R.BANUMATHI\nAND\nTHE HONOURABLE MR.JUSTICE S.NAGAMUTHU\n\nW.A.(MD).No.501 of 2008\nand\nW.A.(MD).No.502 of 2008\nand\nM.P.Nos.2 and 2 of 2008\n\n\nThe Regional Provident Fund Commissioner - II,\nEmployees Provident Fund Organization,\nRegional Office,\nNo.1, Lady Doak College Road,\nChokkikulam, Madurai. \t\t... Appellants in Both Writ Appeals\n\t\t\t\nVs.\n\nSree Visalam Chit Funds Ltd.,\nNew No.158, Old No.124, O.A.Street,\nPalathur,\nSivagangai District,\nThrough its Director,\nC.T.Natarajan\t\t\n\t\t\t\t... Respondent in W.A.(MD).No.501 of 2008\n\nThe Tirunelveli Central Co-operative Bank Ltd.,\nVannarpettai, Tirunelveli,\nThrough its Joint Registrar\/Special Officer.\n\t\t\t\t... Respondent in W.A.(MD).No.502 of 2008\n\nPRAYER\n\nWrit Appeals are filed under Clause 15 of the Letters Patent against the\nOrder dated 06.10.2007 made in W.P.(MD).Nos.3795 and 11142 of 2006 on the file\nof this Court.\n\n!For Appellant     ... Mr.G.R.Swaminathan\n^For Respondents   ... Mr.K.Srinivasan\n\t\t       Senior Counsel\n\t\t       For Mr.G.Prabhu Rajadurai\n\t\t\t\t\n\n:COMMON JUDGMENT\n***********************\n<\/pre>\n
S.NAGAMUTHU J.\n<\/p>\n
\tChallenge in these Writ Appeals is to the order dated 06.10.2007 made in
\nW.P.(MD).Nos.3795 and 11142 of 2006. Since these two Writ Petitions were
\ndisposed of by means of a Common Order, we heard both the Writ Appeals together,
\nand accordingly, the following Common Judgment is passed.\n<\/p>\n
\t2. For the sake of convenience, let us, at first, take up the narration of
\nthe facts involved in W.A.(MD).No.501 of 2008.\n<\/p>\n
\t3. M\/s.Sree Visalam Chit Fund Limited, Pallathur\/Karaikudi, Sivagangai
\nDistrict, is admittedly, an establishment covered under the Employees’ Provident
\nFund and Miscellaneous Provisions Act, 1952, [hereinafter referred to as “the
\nAct”] and exempted under Section 17(1)(3) of the Act. The contributions in
\nrespect of the employees employed under the respondent were governed by the
\nFamily Pension Scheme, 1971, which was superseded by another scheme known as
\n“The Employees Pension Scheme, 1995” with effect from 16.11.1995. As per the new
\nscheme, the contribution of the employer as well as the employees was enhanced.
\nThe same came to be challenged by as many as 444 employees of the establishment
\nby way of Writ Petition before the Principal Seat of this Court.\n<\/p>\n
\t4. In the said Writ Petition, this Court granted an order of interim stay.
\nIn view of the same, the respondent stopped remitting the contributions under
\nthe new scheme, however, continued to remit contributions as per the Old Family
\nPension Scheme 1971. While so, the Provident Fund Commissioner, by his letter
\nNo.TN\/17048\/EO-Exem\/SRO\/MDU\/96, informed the respondent to continue to pay the
\ncontributions from 1611.1995 onwards, as per the Old Family Pension Scheme.
\nImmediately, the respondent started so paying the contributions, as per the Old
\nFamily Pension Scheme. The said Writ Petition, however, by order dated
\n12.12.1996, came to be dismissed. Thereafter, the respondent complied with the
\nEmployees’ Pension Scheme, 1995. In other words, the respondent started paying
\nenhanced contribution from January 1997 onwards.\n<\/p>\n
\t5. While so, the Regional Provident Fund Commissioner issued a notice on
\n07.03.1997 under Section 7(A) of the Act directing the respondent to appear for
\nan enquiry for determining the contribution amount for the period between
\nFebruary 1996 and December 1996, during which period, there was an order of
\ninterim stay granted by this Court in the said Writ Petition filed by the
\nemployees. The respondent appeared before the Regional Provident Fund
\nCommissioner and submitted his explanation stating that the respondent was not
\nliable to pay any amount for the said period. However, the Regional Provident
\nFund Commissioner issued an order under Section 7(A) of the Act directing the
\nrespondent to pay the contribution. Accordingly, the respondent paid the entire
\ncontribution, as determined under Section 7(A) of the Act on 24.12.2004. Thus,
\nthere has been no amount due from the respondent towards Provident Fund
\nContribution to the Scheme.\n<\/p>\n
\t6. While so, the Regional Provident Fund Commissioner issued a notice on
\n31.01.2006 calling upon the respondent to pay a sum of Rs.3,69,448\/- towards
\ndamages under Section 14(B) of the Act, for the belated remittance of the
\ncontributions under the Employees’ Pension Scheme 1995. In response to the said
\nnotice, the respondent appeared for an enquiry and submitted a written
\nobjection, wherein, he contended that the belated payment was not wilful and it
\nwas because of the interim stay granted by the High Court in the Writ Petition
\nfiled by the employees challenging the new Pension Scheme that the respondent
\ncould not pay the contributions.\n<\/p>\n
\t7. It was further contended that though the respondent was ready to pay
\nthe contribution, as per the Pension Scheme, the respondent was not permitted to
\ndo so by the appellant. It was also contended that when the demand was made for
\nthe interregnum period, the respondent filed a Writ Petition in W.P.No.2335 of
\n1996 before the Principal Seat of this Court and in the said Writ Petition,
\nagain interim stay was granted. Thereafter, the said Writ Petition was dismissed
\nby the High Court. As against the same, a Writ appeal in W.A.No.23 of 2001 was
\nfiled by the respondent herein. The said Writ Appeal was finally disposed of by
\nthe High Court during December 2004, on an undertaking given by the employer to
\nremit the balance amount, that may be determined by the Provident Fund
\nCommissioner under Section 7(A) of the Act. It was in pursuance of the same, an
\norder was passed, and thereafter, the amount was paid without any delay. Thus,
\nit was contended by the respondent before the appellant that there was no
\nbelated remittance at all, as according to the respondent, the remittance was
\nmade as soon as the determination order was passed under Section 7(A) of the
\nAct, which was in pursuance of the order made in W.A.No.23 of 2001. However,
\nrejecting the above contentions of the respondent, the Regional Provident Fund
\nCommissioner, Madurai, by his proceedings No\/TN\/17048\/RO\/MDU\/CIRCLE,
\n04\/PDC\/LD\/2005, dated 03.04.2006, passed an order under Section 14(B) of the
\nAct, thereby directing the respondent to pay a sum of Rs.3,69,448\/- as damages.
\nIt was this order, which was challenged before the Writ Court.\n<\/p>\n
\t8. Before the Writ Court, it was mainly contended by the respondent that
\nthere was no belated remittance at all, as stated in the impugned order passed
\nby the appellant. It was also contended that the impugned order passed by the
\nappellant does not satisfy the legal requirements of Section 14(B) of the Act.
\nTherefore, according to the respondent, the impugned order passed by the
\nappellant is not sustainable under law.\n<\/p>\n
\t9. On the other hand, it was contended before the Writ Court by the
\nappellant that there was belated payment, for which the respondent is liable to
\npay damages under Section 14(B) of the Act. It was also contended that it was
\nonly by following the procedure established under law, the impugned order came
\nto be passed.\n<\/p>\n
\t10. Having considered the above contentions, the Writ Court accepted the
\ncontentions of the respondent herein and allowed the said Writ Petition thereby
\nquashing the order of levy made under Section 14(B) of the Act. Aggrieved over
\nthe same, the appellant is now before this Court with this Writ Appeal.\n<\/p>\n
\t11. In this Writ Appeal, it is mainly contended by the appellant;\n<\/p>\n
\ti). that the principles stated in Employees’ State Insurance Corporation
\nand others vs. Jardine Henderson Staff Association<\/a> reported in AIR 2006 SCC
\n2777, upon which much reliance has been made by the Writ Court, has got no
\napplication to the facts of the present case, because that was a case decided in
\nrespect of an issue under the Employees’ State Insurance Act. According to the
\nappellant, under the Employees’ State Insurance Act, the employer, instead of
\nremitting the contribution, had spent the money for providing medical facility
\nto the employees, whereas in the case on hand, under the Employees Provident
\nAct, the money, which was due, was not spent by the employer for any purpose and
\ninstead, he utilized the same for his own purpose, and therefore, though under
\nthe Employees’ State Insurance Act, the employer is not liable to pay damages
\nunder Section 85(B) of the Act, under the Employees Provident Funds and
\nMiscellaneous Provisions Act, the employer is liable to pay contribution towards
\ndamages. To put it otherwise, the position of the employer under the Employees
\nState Insurance Act is totally different from the position of the employer under
\nthe Employees Provident Funds and Miscellaneous Provisions Act, and therefore,
\nthe Judgment rendered in the context of the Employees State Insurance Act cannot
\nbe imported to the Employees Provident Funds and Miscellaneous Provisions Act.\n<\/p>\n
\tii.under the Employees State Insurance Act, because of the non-remittance
\nof the employers contribution, there is no loss caused to the employees, whereas
\nbecause of such non-remittance, such a loss has been caused to the employees,
\nwho are the beneficiaries under the Employees Provident Funds and Miscellaneous
\nProvisions Act, and therefore, the standard of test to be applied to find as to
\nwhether damages have to be levied under Section 85(B) of the Employees State
\nInsurance Act and the test to find as to whether damages have to be levied from
\nan employer under the Employees Provident Fund Act are different and they cannot
\nbe equated to each other.\n<\/p>\n
\t(iii).The impugned order is a speaking order, which has been passed on
\nconsidering all the relevant materials on record, and therefore, the same should
\nnot have been interfered with  by the Writ Court.\n<\/p>\n
\t12. Per contra, it is contended by Mr.K.Srinivasan, learned Senior Counsel
\nappearing for the respondent that the non-remittance of the employers
\ncontribution, in this case, would not amount to wilful conduct on the part of
\nthe respondent. But, it was because of the interim stay granted by this Court in
\nthe said Writ Petition filed by the employees. He would further submit that
\nthough the respondent was ready to pay the employers contribution as per the
\nPension Scheme of the year 1971, it was only the appellant, who declined to
\nreceive the same. Therefore, the non-remittance of the employers contribution,
\nas per the Scheme of the year 1971 during the pendency of the said Writ Petition
\nwas attributable only to the appellant.\n<\/p>\n
\t13. On facts, as per the Judgment made in W.A.No.23 of 2001, a fresh
\ndetermination order under Section 7(A) of the Act was made only in the year 2004
\nand immediately thereafter, the amount was paid as determined under Section 7(A)
\nof the Act. Therefore, there is no belated payment for the period between
\nDecember 1996 and December 2004, as it is claimed by the appellant. Since there
\nwas no belated payment, according to the respondent, question of levying damages
\nunder Section 14(B) of the Act does not arise.\n<\/p>\n
\t14. We have considered the above rival submissions and we have also
\nperused the records carefully.\n<\/p>\n
\t15. Before going into the facts of the case, we deem it appropriate to
\nhave a survey of various decisions of the Hon’ble Supreme Court to extract the
\nlegal position regarding levy of damages under Section 14(B) of the Act.  This
\nprovision, which was introduced to the Parent Act by means of amendment by Act
\n37 of 1953, as it stood prior to 01.09.1991, reads as follows:-
\n\t14(B).Power to recover damages,- Where an employer makes default in the
\npayment of any contribution to the Fund 1[, the 2[pension] Fund or the Insurance
\nFund] or in the transfer of accumulations required to be transferred by him
\nunder sub-section (2) of Section 15 4[or sub-section (5) of section 17] or in
\nthe payment of any charges payable under any other provision of this Act or of
\n5[any Scheme or Insurance Scheme] or under any of the conditions specified under
\nSection 17, 6[the Central Provident Fund Commissioner or such other officer as
\nmay be authorized by the Central Government, by notification in the Official
\nGazette, in this behalf] may recover [from the employer such damages, not
\nexceeding  [***] the amount of arrears, as it may thinks fit to impose:]”
\n[Emphasis supplied].\n<\/p>\n
\t16. The constitutionality of Section 14(B) of the Act came to be examined
\nby the Hon’ble Supreme Court in Organo Chemicals Industries vs. Union of India<\/a>
\nreported in 1979 (4) SCC 573, wherein Section 14(B) of the Act was challenged on
\ntwo grounds. One of the grounds was that the said provision does not authorize
\nlevy of any penal damages, i.e., a penalty or fine but deals with the power to
\nrecover damages. It was further contended that it is not the power to impose a
\npenalty on the defaulting employer, though the maximum amount of damages that
\ncan be recovered has been indicated in the Section. It was further submitted
\nthat the damages must have some correlation with the loss suffered as a result
\nof delayed payments and the authority imposing damages must apply its mind to
\nthis aspect of the matter. In other words, it was contended that unless it is
\nshown that the beneficiary has suffered a loss, question of levying damages does
\nnot arise, since the damages contemplated under Section 14(B) of the Act cannot
\nbe construed as a penalty. The Hon’ble Supreme Court, after elaborately
\nexamining the said contention, ultimately, in Paragraph No.22, has held as
\nfollows;-\n<\/p>\n
\t22. The expression “damages” occurring in Section 14-B is, in substance, a
\npenalty imposed on the employer for the breach of the statutory obligation. The
\nobject of imposition of penalty under Section 14-B is not merely “to provide
\ncompensation for the employees”. We are clearly of the opinion that the
\nimposition of damages under Section 14-B serves both the purposes. It is meant
\nto penalise defaulting employer as also to provide reparation for the amount of
\nloss suffered by the employees. It is not only a warning to employers in general
\nnot to commit a breach of the statutory requirements of Section 6, but at the
\nsame time it is meant to provide compensation or redress to the beneficiaries
\ni.e. to recompense the employees for the loss sustained by them. There is
\nnothing in the section to show that the damages must bear relationship to the
\nloss which is caused to the beneficiaries under the Scheme. The word “damages”
\nin Section 14-B is related to the word “default”. The words used in Section 14-B
\nare “default in the payment of contribution” and, therefore, the word “default”
\nmust be construed in the light of Para 38 of the Scheme which provides that the
\npayment of contribution has got to be made by the 15th of the following month
\nand, therefore, the word “default” in Section 14-B must mean “failure in
\nperformance” or “failure to act”. At the same time, the imposition of damages
\nunder Section 14-B is to provide reparation for the amount of loss suffered by
\nthe employees.\n<\/p>\n
\t17. A close reading of the above Judgment of the Hon’ble Supreme Court
\nwould make it manifestly clear that what is levied under Section 14(B) of the
\nAct, as damages, is both by way of penalty as well as by way of recompense the
\nemployees for the loss sustained by them on account of the default in the
\npayment of contribution by the employer. Here the expression “default” needs
\nemphasize.\n<\/p>\n
\t18. After the above Judgment, the Parliament introduced  amendment to
\nSection 14(B) by Act 33 of 1988, which came into force with effect from
\n01.09.1991. As per the said amendment, the doubt, if any, as to whether the
\ndamages levied under Section 14(B) of the Act is also by way of penalty or not
\nstands obviated by the introduction of the expression “by way of penalty”. For
\nbetter understanding, it is worthwhile to extract the amended provision of
\nSection 14(B) of the Act, which reads as follows;-\n<\/p>\n
\t14B. Power to recover damages – Where an employer makes default in the
\npayment of any contribution to the Fund the Pension Fund or the Insurance Fund
\nor in the transfer of accumulations required to be transferred by him under sub-
\nsection 2 of section 15 or sub-section 5 of section 17 or in the payment of any
\ncharges payable under any other provision of this Act or of any Scheme or
\nInsurance Scheme or under any of the conditions specified under section 17, the
\nCentral Provident Fund Commissioner or such other officer as may be authorised
\nby the Central Government, by notification in the Official Gazette, in this
\nbehalf may recover from the employer by way of penalty such damages, not
\nexceeding the amount of arrears, as may be specified in the Scheme. [Emphasis
\nsupplied].\n<\/p>\n
\t19. From the above discussion, it could be safely understood that the
\npurpose of levying damages under Section 14(B) of the Act serves a dual purpose,
\nviz., to penalize the employer for his default committed and also to compensate
\nthe employee.\n<\/p>\n
\t20. The expressions “default” and “failure” are synonymous terms. Failure,
\nin the dictionary sense means, “a falling short”, “deficiency” or “lack”.
\nDefault means “omission of that which ought to be done”.  From this, it could be
\nunderstood that “failure” to constitute “default” must go with some animus to
\ncommit such failure. A failure simplicitor without such an animus would not
\nconstitute a default in the sense of the expression, in which it has been used
\nin Section 14(B) of the Act.\n<\/p>\n
\t21. At this juncture, we may usefully refer to a Judgment of the Hon’ble
\nSupreme Court in Hindustan Times Ltd., vs. Union of India<\/a> reported in 1998 (2)
\nSCC 242, wherein while examining the scope of 14(B) of the Act, the Hon’ble
\nSupreme Court has held as follows;-\n<\/p>\n
\tThe authority under Section 14-B has to apply his mind to the facts of the
\ncase and the reply to the show-cause notice and pass a reasoned order after
\nfollowing principles of natural justice and giving a reasonable opportunity of
\nbeing heard; the Regional Provident Fund Commissioner usually takes into
\nconsideration the number of defaults, the period of delay, the frequency of
\ndefault and the amounts involved; default on the part of the employer based on
\nplea of power-cut, financial problems relating to other indebtedness or the
\ndelay in realisation of amounts paid by the cheques or drafts, cannot be
\njustifiable grounds for the employer to escape liability; there is no period of
\nlimitation prescribed by the legislature for initiating action for recovery of
\ndamages under Section 14-B.\n<\/p>\n
\t22. Later on, when a similar question arose while examining the scope of
\nSection 85(B) of the ESI Act, which is in pari materia to Section 14(B) of the
\nEPF Act, the Hon’ble Supreme Court in ESI Corporation vs HMT Limited reported in
\n2008 (3) SCC 35, in paragraph No.21, has held as follows;-
\n\tA penal provision should be construed strictly. Only because a provision
\nhas been made for levy of penalty, the same by itself would not lead to the
\nconclusion that penalty must be levied in all situations. Such an intention on
\nthe part of the legislature is not decipherable from Section 85-B of the Act.
\nWhen a discretionary jurisdiction has been conferred on a statutory authority to
\nlevy penal damages by reason of an enabling provision, the same cannot be
\nconstrued as imperative. Even otherwise, an endeavour should be made to construe
\nsuch penal provisions as discretionary, unless the statute is held to be
\nmandatory in character.\n<\/p>\n
In Prestolite (India) Ltd., v. Regional Director & Anr<\/a> reported in 1994 Supp (3)
\nSCC 690, the Hon’ble Supreme Court has held as follows;-\n<\/p>\n
\tEven if the regulations have prescribed general guidelines and the upper
\nlimits at which the imposition of damages can be made, it cannot be contended
\nthat in no case, the mitigating circumstances can be taken into consideration by
\nthe adjudicating authority in finally deciding the matter and it is bound to act
\nmechanically in applying the uppermost limit of the table. In the instant case,
\nit appears to us that the order has been passed without indicating any reason
\nwhatsoever as to why grounds for delayed payment were not to be accepted. There
\nis no indication as to why the imposition of damages at the rate specified in
\nthe order was required to be made. Simply because the appellant did not appear
\nin person and produce materials to support the objections, the employee’s case
\ncould not be discarded in limine. On the contrary, the objection ought to have
\nbeen considered on merits. We, therefore, allow this appeal and set aside the
\nimpugned orders. The Regional Director is directed to dispose of the
\nrepresentation of the appellant by indicating reasons after taking into
\nconsideration the grounds for delayed payment. Since the matter is going to be
\nreheard, the appellant is permitted to make personal representation at the
\nhearing of the show-cause proceeding.”\n<\/p>\n
In Dilip N.Shroff v. Joint Commissioner of Income Tax, Mumbai & Anr<\/a> reported in
\n2007 (6) SCC 329, the Hon’ble Supreme Court has held as follows;-
\n\tThus, it appears that there is distinct line of authorities which clearly
\nlays down that in considering a question of penalty, mens rea is not a relevant
\nconsideration. Even assuming that when the statute says that one is liable for
\npenalty if one furnishes inaccurate particulars, it may or may not by itself be
\nheld to be enough if the particulars furnished are found to be inaccurate is
\nanything more needed but the question would still be as to whether reliance
\nplaced on some valuation of an approved valuer and, therefore, the furnishing of
\ninaccurate particulars was not deliberate, meaning thereby that an element of
\nmens rea is needed before penalty can be imposed, would have received serious
\nconsideration in the light of a large number of decisions of this Court.\n<\/p>\n
\t23. After having taken note of the above Judgments in Prestolite (India)
\nLtd., and Dilip N.Shroff v’s case, the Hon’ble Supreme Court in Emp. State
\nInsurance Corpn vs. HMT Ltd., reported in 2008 (1) Scale 341, has agreed with
\nthe view in Dilip N.Shroff v’s case to hold that an element of mens rea is
\nrequired before penalty can be imposed. While agreeing with the said view, the
\nHon’ble Supreme Court has given additional reasons also, which could be found in
\nParagraph Nos.20 and 21 of the said Judgment, which read as follows;-\n<\/p>\n
\t20. We agree with the said view as also for the additional reason that the
\nsubordinate legislation cannot override the principal legislative provisions.
\n\tThe statue itself does not say that a penalty has to be levied only in the
\nmanner prescribed. It is also not a case where the authority is left with no
\ndiscretion. The legislation does not provide that adjudication for the purpose
\nof levy of penalty proceeding would be a mere formality or imposition of penalty
\nas also computation of the quantum thereof became a foregone conclusion.
\nOrdinarily, even such a provision would not be held to providing for mandatory
\nimposition of penalty, if the proceeding is an adjudicator one or compliance of
\nthe principles of natural justice is necessary thereunder.\n<\/p>\n
\t21. Existence of mens rea or actus reus to contravene a statutory
\nprovision must also be held to be a necessary ingredient for levy of damages
\nand\/or the quantum thereof.\n<\/p>\n
\t24. A close reading of the above Judgment would make it undoubtedly clear
\nthat since what is imposed under Section 14(B) of the Act is not only with a
\nview to compensate the employee, but also by way of penalty, it is absolutely
\nnecessary that it should be proved that there was a mens rea or actus reus to
\ncontravene the statutory provision by the employer.\n<\/p>\n
\t25. The learned counsel for the appellant would try to distinguish the
\nsaid Judgment by contending that though Section 14(B) of the EPF Act and Section
\n85(B) of the ESI Act are in pari materia, they operate in different spheres and
\nthe consequences of the failure to pay contribution under both the enactments
\nare altogether different. He would point out that insofar as the ESI Act is
\nconcerned, if the contribution is not paid in time, there is no loss caused to
\nthe employee, because he gets medical aid from the employer himself, whereas
\nunder the EPF Act, the money, which is due to the scheme under the Act, is
\nutilized by the employer for a different purpose.\n<\/p>\n
\t26. Though the said argument appears to be attractive, we find no
\nsubstance in the same. A close comparison of both the provisions under the
\nenactments would go to show that they are, in all respects, in pari materia.
\nInsofar as Section 85(B) of the ESI Act is concerned, the damages is levied by
\nway of penalty and the expression “by way of penalty” was found even in the
\nprovision, as it was introduced to the Parent Act. But, the said expression “by
\nway of penalty” was not there, when Section 14(B) of the EPF Act was introduced
\nto the Parent Act. Since attempts were made to distinguish these provisions and
\nsince arguments were advanced that Section 14(B) of the Act does not constitute
\npenalty to obviate the same and in view of the Judgment of the Hon’ble Supreme
\nCourt in Emp. State Insurance Corpn vs. HMT Ltd., the expression “by way of
\npenalty” was incorporated by means of amendment. After the Judgment of the
\nHon’ble Supreme Court and after the said amendment, now, there can be no doubt
\nthat there is no distinction in any sense between Section 14(B) of the EPF Act
\nand Section 85(B) of the ESI Act. Therefore, the law laid down by the Hon’ble
\nSupreme Court in Emp. State Insurance Corpn vs. HMT Ltd., cited supra, squarely
\napplies to Section 14(B) of the EPF Act also.\n<\/p>\n
\t27. Now, let us consider the facts of the case to examine as to whether
\nthere was any mens rea or actus reus on the part of the respondent to commit
\ndefault in payment of the contribution. At the outset, we may say that we do not
\nfind any material to hold that there was such mens rea or actus reus. It is the
\nadmitted case that under the Pension Scheme of the year 1971, the respondent was
\npaying the contribution without any default. When the new Scheme was introduced
\nand the rate of contribution was enhanced, it was not as though the respondent
\nwas not prepared to pay the employer’s contribution. However, it was only the
\nemployees, who rushed to the Court, challenging the new scheme and got an order
\nof interim stay in the Writ Petition filed by them. It was a blanket stay order
\nin respect of the employees contribution’ as well as the employers’
\ncontribution. That was the reason why, the respondent was not in a position to
\nremit the contribution in accordance with the new scheme.\n<\/p>\n
\t28. It is also seen that the respondent continued to pay the same in the
\nrate prescribed under the Old Scheme. Thereafter, the matter was clarified by
\nthe Writ Court that the employer should remit the contribution as per the Old
\nScheme. Accordingly, the respondent further continued to pay the same. After the
\nsaid Writ Petition was dismissed, the respondent, without any default, as we
\nhave already narrated above, paid the contribution as per the New Scheme. When a
\nfurther demand was made, it could be seen that the respondent challenged the
\nsame by way of a Writ Petition in W.P.No.2335 of 1996 and after the said Writ
\nPetition was dismissed, challenging the same, W.A.No.23 of 2001 was filed by the
\nrespondent. In the Writ Appeal, by Judgment dated 04.11.2004, the Division Bench
\nof this Court directed the Regional Provident Fund Commissioner to decide the
\nquantum and liability under Section 7(A) of the Act and then to make the demand.
\nThereafter, such an order was passed and immediately, the respondent paid the
\namount. Thus, absolutely there is nothing to suggest that the respondent had
\neither mens rea or actus reus to breach the provision regarding payment of
\ncontribution. As it has been contended by the learned Senior Counsel for the
\nrespondent, such failure to pay the contribution during the interregnum period
\nwas solely attributable to the litigations before the Court and the
\nconsequential interim order of stay granted by this Court.\n<\/p>\n
\t29. The learned counsel for the appellant would submit that when the
\ninterim stay order stood vacated on the dismissal of the Writ Petition, the
\nparties should get relegated to their original position. In order to highlight
\nthe said proposition, the learned counsel has relied on few Judgments of the
\nHon’ble Supreme Court. Since it is a well settled law, we do not propose to
\nrefer to those Judgments. Here, in this case, the benefit arising out of the
\nstay order granted by this Court was limited only to pay the contribution as per
\nthe Old Scheme and not under the new scheme. After the stay order was vacated,
\nthe parties have been relegated to their original position and accordingly, the
\nrespondent has paid the entire arrears as per the new scheme. But, applying the
\nsaid principle, it cannot be said that because the respondent did not pay the
\nenhanced contribution during the pendency of the Writ Petition and during the
\nstay order, it could be held that the respondent is liable to pay the damages.\n<\/p>\n
\t30. In our considered opinion, as we have already concluded,  unless it is
\nestablished that such failure to pay the contribution was attributable to the
\nmens rea or actus reus on the part of the employer, question of levying damages
\nunder Section 14(B) of the Act does not arise. It has been repeatedly held by
\nthe Hon’ble Supreme Court that simply because the statutory provision enables an
\nauthority to impose penalty, it does not mean that such penalty should be
\nimposed in a mechanical manner without looking into the attending circumstances
\nand the facts as to whether there was any mens rea or actus reus on the part of
\nthe employer.\n<\/p>\n
\t31. Now, coming to the question of compensation by way of damages, the
\ncontention of the learned counsel is that the contribution payable by the
\nrespondent to the fund has been utilized by the employer, whereas under the ESI
\nAct, the amount is utilized for giving medical aid to the employees, and
\ntherefore, both the provisions are not in pari materia cannot be countenanced.
\nAs we have already noticed, the purpose of levying damages is to compensate the
\nemployees only for default of the employer. But, in this case, the employer
\ncould not pay the enhanced amount of contribution as per the Pension Scheme of
\nthe year 1995, because of the act of the employees in approaching the High Court
\nand getting the order of interim stay. Thus, the loss, if any, sustained by the
\nemployees, is attributable to their own act and so, they are not entitled for
\ndamages.\n<\/p>\n
\t32. Under the ESI Act, if the amount is not paid by the employer to the
\nESI Corporation, and instead he himself provides medical assistance to the
\nemployees, there is no need to pay such arrears of contribution to the ESI
\nCorporation, because ESI Corporation has not rendered any medical service to the
\nemployees. But, in the case of the EPF contribution, since the amount is not
\nspent by the employer for the benefit of the employees, the amount is required
\nto be remitted to the EPF organization. But, under both the enactments, levying
\nof damages is based on the mens rea or actus reus. Therefore, we do not find any
\ndistinction between these two provisions in their application in respect of
\nlevying damages by way of penalty. On facts, since we have already concluded
\nthat the payment of the contribution made belatedly by the respondent is not on
\naccount of any mens rea or actus reus, we hold that levying of damages by the
\nappellant is not sustainable, and therefore, the Writ Court was right in
\ninterfering with the same. Thus, we do not find any merit in the Writ Appeal,
\nand therefore, W.A(MD).No.501 of 2008 is dismissed. No costs. Consequently,
\nconnected Miscellaneous Petition is closed.\n<\/p>\n
\tW.A.(MD)No.502 of 2003;-\n<\/p>\n
\t33. In this case also, the non-payment of the contribution as per the
\nEmployees Pension Scheme of the year 1995 was on account of the interim stay
\ngranted in W.P.M.P.No.3952 of 1996, which came to be vacated on 12.12.1996.
\nThereafter, the impugned order passed by the appellant does not anywhere show
\nthat there was any default in the sense, in which it has been used in Section
\n14(B) of the Act. A close scrutiny of the order of the appellant impugned in the
\nWrit Petition would go to show that there is no finding at all that the belated
\npayment of the contribution was on account of any mens rea or actus reus on the
\npart of the respondent. Thus, the learned Single Judge was right in interfering
\nwith the impugned order. In view of the above, we do not find any merit in this
\nWrit Appeal warranting interference at the hands of this Court.\n<\/p>\n
\tIn the result, W.A.(MD)No.502 of 2003 fails and the same is, accordingly,
\ndismissed. No costs. Consequently, connected Miscellaneous Petition is closed.\n<\/p>\n
NB<\/p>\n
To<\/p>\n
The Regional Provident Fund Commissioner – II,
\nEmployees Provident Fund Organization,
\nRegional Office,
\nNo.1, Lady Doak College Road,
\nChokkikulam, Madurai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Regional Provident Fund … vs Sree Visalam Chit Funds Ltd on 1 November, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01\/11\/2010 CORAM THE HONOURABLE MRS.JUSTICE R.BANUMATHI AND THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.A.(MD).No.501 of 2008 and W.A.(MD).No.502 of 2008 and M.P.Nos.2 and 2 of 2008 The Regional Provident Fund […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-131228","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Regional Provident Fund ... vs Sree Visalam Chit Funds Ltd on 1 November, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-regional-provident-fund-vs-sree-visalam-chit-funds-ltd-on-1-november-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Regional Provident Fund ... vs Sree Visalam Chit Funds Ltd on 1 November, 2010 - 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