{"id":161765,"date":"2011-03-28T00:00:00","date_gmt":"2011-03-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gujarat-vs-assistant-on-28-march-2011"},"modified":"2017-10-27T23:00:44","modified_gmt":"2017-10-27T17:30:44","slug":"gujarat-vs-assistant-on-28-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gujarat-vs-assistant-on-28-march-2011","title":{"rendered":"Gujarat vs Assistant on 28 March, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Gujarat vs Assistant on 28 March, 2011<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/15124\/2010\t 22\/ 22\tORDER \n \n \n\n\t\n\n \n\n \n\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 15124 of 2010 \n\n \n\nTo\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 15134 of 2010\n \n\n \n\n\n \n\n \n=========================================================\n\n \n\nGUJARAT\nELECTRICITY BOARD (NOW GUJARAT ENERGY TRANSMISSION & 1 -\nPetitioner(s)\n \n\nVersus\n \n\nASSISTANT\nPROVIDENT FUND COMMISSIONER & 1 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMS\nLILU K BHAYA for\nPetitioner(s) : 1 - 2. \nMR NIRAL R MEHTA for Respondent(s) : 1 -\n2. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\n \n \n\n\n \n\nDate\n: 28\/03\/2011 \n\n \n\n \n \n\n\n \n\nORAL\nORDER<\/pre>\n
Heard
\n\tlearned Advocate Ms. Lilu K. Bhaya for petitioner and learned
\n\tAdvocate Mr.Niral R. Mehta for respondent Assistant Provident Fund
\n\tCommissioner in each petition.\n<\/p>\n
Rule.\n<\/p>\n
\tService of rule is waived by learned Advocate Mr.Niral R.Mehta on
\n\tbehalf of respondent PF Authority in each petition. With consent of
\n\tboth learned advocates, these petitions are taken up for final
\n\thearing today.\n<\/p>\n
In
\n\tthis group of petitions, two orders are under challenge by
\n\tpetitioner. One order is passed by Assistant PF Commissioner dated
\n\t30th June, 2004 under section 14-B of PF Act and second
\n\torder passed by Employees Provident Fund Appellate Tribunal, New
\n\tDelhi dated 14th July, 2010.\n<\/p>\n
I
\n\thave considered submissions made by learned Advocate Ms.Bhaya for
\n\tpetitioner and also considered submissions made by learned Advocate
\n\tMr.Mehta for respondent in each petition. I have also perused both
\n\torders, one passed by Assistant Provident Fund Commissioner dated
\n\t30th June, 2004 and another order passed by Appellate
\n\tTribunal dated 14th July, 2010.\n<\/p>\n
Brief
\n\tfacts of present group of petitions as specified and narrated in
\n\tlist of dates and events of Special Civil Application NO. 15124 of
\n\t2010, are quoted as under, just to giving back ground of matter:\n<\/p>\n
 LIST
\n\tOF DATES AND EVENTS<\/p>\n
16.11.1995<\/p>\n
The
\n\t\t\t\tGovernment of India introduced the Employees Pension Scheme, 1995
\n\t\t\t\t(EPS-95) w.e.f. November 16, 1995 in place of earlier FPS-71
\n\t\t\t\tScheme. The said Scheme was published in the Gazette on November
\n\t\t\t\t16, 1995.\n<\/p>\n
Dec.\n<\/p>\n
\t\t\t\t95 to February, 1996<\/p>\n
The
\n\t\t\t\tRegional Provident Fund Commissioner (RPFS) Vadodara intimated
\n\t\t\t\tGEB about the EPS-95 Scheme vide letter dated December 1, 1995.
\n\t\t\t\tThe said pension Scheme introduced for the first time in the
\n\t\t\t\tcountry was very complex and it was necessary to understand the
\n\t\t\t\tScheme before making any remittance thereunder. The RPFC Vadodara
\n\t\t\t\tintimated GEB on January 30, 1996 that an application could be
\n\t\t\t\tmade for grant of exemption from EPS-95 Scheme by establishment.
\n\t\t\t\tA public notice dated January 25, 1996 was also issued on behalf
\n\t\t\t\tof Regional Provident Fund Commissioner (Exemption) Gujarat
\n\t\t\t\tState, inter alia, in Indian Express dated January, 28, 1996. By
\n\t\t\t\tthe said notice, applications were invited from interested
\n\t\t\t\testablishments for grant of exemption from EPS-95 Scheme. The
\n\t\t\t\tlast date for submission of exemption applications was February
\n\t\t\t\t15, 1996 The Board applied for grant of exemption from the
\n\t\t\t\taforesaid EPS-95 Scheme under Section 17(1)(A) of the Act and
\n\t\t\t\tParagraph 39 of the EPS-95 Scheme on February 08, 1996 to RPFS,
\n\t\t\t\tVadodara.\n<\/p>\n
Dec.2001<\/p>\n
The
\n\t\t\t\texemption application filed by the Board was duly recommended by
\n\t\t\t\tRPFC Vadodara, RPFC Ahmedabad and Central Provident Fund
\n\t\t\t\tCommissioner, New Delhi and was forwarded finally to the Ministry
\n\t\t\t\tof Labour, Government of India for its approval. The Ministry of
\n\t\t\t\tLabour, however, rejected Board exemption application in
\n\t\t\t\tDecember, 2001 without assigning any reason, that too after a gap
\n\t\t\t\tof 5 years and 9 months approximately.\n<\/p>\n
30.6.2004\/
\n\t\t\t\t6.7.2004<\/p>\n
Respondent
\n\t\t\t\tNo.1 passed order levying damages on the petitioners.\n<\/p>\n
2004<\/span><\/p>\n
Petitioners
\n\t\t\t\tpreferred Appeal before the Employees Provident Fund Appellate
\n\t\t\t\tTribunal, New Delhi.\n<\/p>\n
14.7.2010<\/p>\n
The
\n\t\t\t\tEmployees Provident Fund Appellate Tribunal dismissed the said
\n\t\t\t\tappeal.\n<\/p>\n
October,
\n\t\t\t\t2010<\/span><\/p>\n
Hence
\n\t\t\t\tpresent petition on the grounds urged in the Memo of Petition.\n<\/p>\n
Against
\n\tpresent petitions, affidavit in reply is filed by respondent NO.1
\n\tdated 9th February, 2011. Copy thereof has been served to
\n\tlearned Advocate Ms. Lilu K. Bhaya for petitioner. Today, learned
\n\tAdvocate Mr. Niral R. Mehta appearing for respondent has placed on
\n\trecord affidavit of respondent in compliance of order passed by this
\n\tcourt dated 4th March, 2011. Copy thereof is served to
\n\tlearned Advocate Ms. Bhaya for petitioner, therefore, same is taken
\n\ton record.\n<\/p>\n
Controversy
\n\tbetween parties is whether powers which have been exercised by
\n\tRespondent Authority under Section 14B of PF Act have been properly
\n\texercised with application of mind or not. For that, certain dates
\n\tare relevant which are as under.\n<\/p>\n
Pension
\n\tScheme is made applicable to all establishments with effect from
\n\t16th November, 1995. For claiming exemption,
\n\tadvertisement has been issued by PF Authority on 25th
\n\tJanuary, 1996 page 141, which is quoted as under:\n<\/p>\n
”\n<\/p>\n
\t\t\t\t\tNOTICE<\/p>\n
Employees’
\n\tPension Scheme, 1995 has come into operation from 16th
\n\tNovember, 1995. This Scheme is applicable to all the establishments
\n\twhere Employees’ Provident Funds and Miscellaneous Provisions Act,
\n\t1952 applied. Paragraph 139 of the Employees’ Pension Scheme, 1995
\n\tprovides for exemption
\n\tfrom the operation of this statutory scheme
\n\tto any establishments, class of establishments if the employees of
\n\tthe said establishment are either members of any other pension
\n\tscheme or proose to be members of a pension scheme wherein
\n\tpensionary benefit are at par or more favourable than benefits
\n\tprovided under the Statutory Scheme.\n<\/p>\n
It
\n\tis, therefore, notified for information of all concerned that in
\n\tcase any establishment covered under the Employees’ Provident Funds
\n\tand Miscellaneous Provisions Act, 1952,Gujarat Region proposes to
\n\tseek exemption from the operation of the Employees Pension Scheme,
\n\t1995, it may apply to
\n\tthe office of the Regional Provident Fund Commissioner situated at
\n\tAhmedabad, Baroda and Surat, as the case may be, on or before
\n\t15.02.1996.\n<\/p>\n
Relaxation
\n\twill be granted to them upto 03.03.1996 before which they should
\n\tcome up with their full scheme so arrange for obtaining formal
\n\texemption.”\n<\/p>\n
In
\n\tresponse to aforesaid advertisement issued by PF Authority,
\n\tapplication for exemption from pension scheme was made by petitioner
\n\ton 8th February, 1996 and that application was rejected
\n\tby PF Authority on 13th December, 2001 and copy of such
\n\trejection was received by petitioner on 27th December,
\n\t2001. Thereafter, request was made by petitioner before PF Authority
\n\tto issue Certificate or to give permission to withdraw entire amount
\n\tfrom Special Deposit Scheme of State Bank of India, so it can be
\n\tdeposited before PF Authority by petitioner. As per para 39 of
\n\tEPS-1995 Scheme, it is provided  that pending disposal of Exemption
\n\tApplication, employer’s share of contribution shall not be remitted
\n\tto Pension Fund.  In view of same, petitioner did not remit Pension
\n\tContribution to PF Authority asper provisions of Para 39 of EPS-1995
\n\tScheme with effect from 16th November, 1995 anticipating
\n\tthat petitioner’s application for exemption from EPS-1995 Scheme
\n\twould be granted by Government of India. However, during pendency of
\n\tits application for exemption, petitioner has invested requisite
\n\tamounts towards pension  @ 8.33% from PF Contribution of employer
\n\tand deposited same in Board’s Employees PF Trust which in turn was
\n\tinvested as per approval investment pattern prescribed by Government
\n\tof India in Special Deposit Scheme of State Bank of India along with
\n\tamount of Provident Fund. In view of that, petitioner establishment
\n\thas transferred pension contribution of trust in time and PF Trust
\n\thas in turn invested money as per prescribed investment pattern, in
\n\tSpecial Deposit Scheme of State Bank of India. In response to
\n\tapplication dated 11th January, 2002 made by petitioner
\n\tto PF Authority, PF Authority granted permission\/certificate on 22nd
\n\tJanuary, 2002 and thereafter, on 25th January, 2002,
\n\tentire amount has been deposited by Petitioner before PF Authority.
\n\tIt is necessary to note that  order dated 30th June, 2004
\n\thas been passed by PF Authority while exercising powers under
\n\tsection 14B of Act, for that, page 21 to 24 are quoted as under:\n<\/p>\n
“Annexure
\n\tA<\/p>\n
21<\/span><\/p>\n
Employees’
\n\tProvident Fund Organization<\/p>\n
(Ministry
\n\tof Labour Government of India)<\/p>\n
Sub
\n\tRegional Office<\/p>\n
Panchayat
\n\tNagar Chowk, University Road, Rajkot 360005<\/p>\n
————————————————–\n<\/p>\n
U\/SRO\/JT\/920-E\/DAMAGES
\n\tCELL\/SO\/1292\/3476 <\/p>\n
Date
\n\t30.6.2004<\/p>\n
6.7.04
\n\tby RPAD<\/p>\n
Before
\n\tAssistance Provident Fund Commissioner<\/p>\n
In
\n\tthe matter proceedings u\/s.14B of the Employees’ Provident Fund and
\n\tMiscellaneous Provisions Act, 1952 against M\/s. Gujarat Electricity
\n\tBoard, Porbandar bearing PF Code No. GJ\/920-G<\/p>\n
ORDER
\n\t:\n<\/p>\n
Whereas
\n\tM\/s.Gujarat Electricity Board is at establishment exempted under
\n\tsection 17 of the Employees’  Provident Fund and Miscellaneous
\n\tProvisions Act, 1952 bearing Code No. LGJ\/320-E<\/p>\n
Whereas
\n\tM\/s. Gujarat Electricity Board was duty bound to remit Employees’
\n\tPension Contribution within 15 days of be of the month, Gujarat
\n\tElectricity Board was delayed the payment of pension contribution
\n\tfor the period 11\/1995 to 2001.\n<\/p>\n
A
\n\tnotice under section 14B of the Act was issued vide No.GJ\/RAJ\/Circle
\n\tE.88\/GJ\/920\/E\/CA\/2326\/10930 dated 3.02.2004 and Summons were issued
\n\tunder NO. GJ\/920-E\/CA\/2371\/11591 dated 4\/3\/2004, Shri P.H. Vyas I\/C
\n\tSE and N. Doria appeared on behalf of the establishment on
\n\t19\/03\/2004 26\/4\/2004 and 12\/05\/2004 and finally on 12\/05\/2004.\n<\/p>\n
Shri
\n\tVyas filed his written submission dated 19\/3\/2004 mainly stating
\n\tthat the GEB has applied for the exemption a accordance with the
\n\tprovisions of section 17(1C) of the Act,EPS-1995. He further stated
\n\tthat pending disposal of the application for exemption, the
\n\tcontribution was not remitted to the pension fund. Hence GEB by law
\n\twas not to divert 8.33% contribution to the pension scheme as
\n\trequired under para 39 of EPS 1995.\n<\/p>\n
He
\n\tfurther submitted that after rejection of GEB’s exemption
\n\tapplication. GEB has become fully compliant as anon exempted
\n\testablishment has hence requested to drop the proceedings under
\n\tsection 14B of the Act.\n<\/p>\n
Accordingly,
\n\tI, DK Vyas, Assistant PF Commissioner, Gujarat State, Rajkot in
\n\texercise of the powers conferres upon me under section 14-B of the
\n\tEmployees’  Provident Fund and Miscellaneous Provisions Act, 1952,
\n\tafter applying my mind to the facts presented before me, come to the
\n\tconclusion as under:\n<\/p>\n
In
\n\tconsonance with para 39 of the EPS-1995, the period between the date
\n\tof application of exemption and the date of disposal of application
\n\tof exemption, is not liable for damages. Hence the damages are not
\n\tlevied for this period.\n<\/p>\n
However,
\n\tthe period from 16\/11\/1995 to 9\/2\/1996 i.e. the period between the
\n\tdate of application of EPS-1995 and the date of submission of
\n\tapplication for exemption and 13\/12\/2001 to 25\/01\/2002 i.e.the
\n\tperiod between date of rejection of application and the actual date
\n\tof payment attracts liability for damages. The time allowed for
\n\tmaking payment i.e. one month initially and upto 31.12.2001 has not
\n\tbeen considered as delay.\n<\/p>\n
I
\n\tfeel that the ends of justice will meet if damages are levied as
\n\tfollows:<\/p>\n
\n\n \n\t \n\t \n\t\t  \n\t\t  \n\t\t\t \n\t\t\t\t \n\nPeriod\n\t\t\t\t           A\/c. X             Total\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\t\t\t\t \n\n11\/95<\/span>\n\t\t\t\tto 8.2.96\n\t\t\t\t \n\nand\n\t\t\t\t1.1.02 to \n\t\t\t\t\n\t\t\t\t \n\n25.1.02\n\t\t\t\t           1,52,007          1,52,007\n\t\t\t\n\t\t\n\t\n\n \n\n \n\n\n \n\t \n\nI\n<\/pre>\n
\torder accordingly it is further ordered that the amount of penal
\n\tdamages amounting to Rs.1,26,435.00 be paid within 15 days of the
\n\treceipt of this order failing with action under section 8 of the Act
\n\twill be initiated.\n<\/p>\n
\t\t\t\t\t\t\t\t\t\tSd\/-Illegible<\/p>\n
\t\t\t\t\t\t\t\t\t\t(DK
\n\t\t\t\t\t\t\t\t\t\tVyas)<\/p>\n
\t\t\t\tAssistant
\nPF Commissioner<\/p>\n
To<\/p>\n
M\/s.\n<\/p>\n
\tGujarat Electricity Board<\/p>\n
Zone-II,
\n\tRajkot.”\n<\/p>\n
Similarly,
\n\tEmployees’ Provident Fund Appellate Tribunal has passed order dated
\n\t14th July, 2010 page 82 to 85 which is quoted as under:\n<\/p>\n
\t\"\t\t\t ORDER\n\t \n\t\t \n\t\t\t \n\t\t\t\t \n\t\t\t\t\t \n\t\t\t\t\t\t \n\n\n\t\t\t\t\t\tDated\n\t\t\t\t\t\t14th\n\t\t\t\t\t\tJuly, 2010. \n\t\t\t\t\t\t\n\t\t\t\t\t\n\t\t\t\t\n\t\t\t\n\t\t\n\t\n\n \n\n\nPresent\n<\/pre>\n
: Shri SK Gupta, Advocate for appellant.\n<\/p>\n
Shri RR Rajesh, Advocate for \t\t\t\trespondent.\n<\/p>\n
The
\norder passed by the PA Authority under section 14B of the Act
\ndirecting the appellant to deposit damage and interest is in
\nchallenge in this appeal.\n<\/p>\n
2.\tThe
\ncase of the appellant is that the appellant is an exempted
\ninstitution and having its own PF Trust. On 16.11.1995, the employees
\nPension Scheme came into force and same was made applicable to the
\napplicant. The appellant applied for exemption on 8.2.1996 but
\nappellant’s application for exemption was rejected in the year 2002.
\nAfter taking permission, the appellant deposited the amount. So there
\nwas no delay. Without considering the material on the record, the EPF
\n authority levied the penalty and interests and the order of the
\nauthority is illegal one.\n<\/p>\n
3.\tThe
\ncase of the respondent is that the scheme came into force on
\n16.11.1995, the appellant had not deposited the dues till he applied
\nfor exemption. So the assessment and imposition of penalty and
\ninterests is correct one.\n<\/p>\n
4.\tIt
\nis contended that as per para 39 of the Scheme,  the appellant is not
\nliable to pay the contribution during the period when his application
\nfor exemption was pending and no penalty and interests could have
\nbeen levied when the payment was made within one month of the
\nrejection of the application.\n<\/p>\n
5.\tThe
\nLd. Advocate for the respondent supported the order.\n<\/p>\n
6.\tIt
\nis not disputed that Pension Scheme was made applicable to the
\nappellant and same came into force on 16.11.1995. As per para 39
\nwhile the application for exemption was pending, the appellant is not
\nbound to make the contribution and the contribution has to be made
\nwithin one month of the rejection of the application. In this case,
\nthe appellant applied for exemption on 8.2.1996. So as per para 39 of
\nthe Scheme, the appellant is not liable to pay the contribution after
\nhe applied for the exemption. But the claim relates to the period in
\nbetween 16.11.1995 to 9.2.1996 i.e. the claim relates to before the
\napplication for exemption was made. Admittedly, the appellant had not
\ndeposited the dues. So, para 39 of the Scheme is of no help to the
\nappellant. As the claim relates to the period prior to the
\napplication of exemption deposited. The appellant is liable to pay No
\ninfirmity is noticed in the order of the authority.\n<\/p>\n
7.\tHence
\nordered, the appeal is dismissed. Copy of order be sent to the
\nparties. File be consigned to record room.”\n<\/p>\n
In
\n\tlight of aforesaid two orders, damages has been levied by PF
\n\tAuthority under section 14B of PF Act for period from November, 1995
\n\tto 8th February, 1996 and 1st January, 2002 to
\n\t25th January, 2002. Total amount has been declared as
\n\tdamages to be paid by petitioner within fifteen days from receipt of
\n\torder passed under section 14B of PF Act. Total amount of damages
\n\tlevied comes to Rs.12,38,496 which has been specified in respect to
\n\teach circle as under as per page 38:\n<\/p>\n
Sr.No.\n<\/p>\n
Name
\n\t\t\t\t\tof Circle\/Power Station<\/p>\n
Damages
\n\t\t\t\t\tAmount<\/p>\n
Rs.\n<\/p>\n
1<\/span><\/p>\n
Amreli
\n\t\t\t\t\t(TR)<\/p>\n
1,26,435.00<\/p>\n
2<\/span><\/p>\n
Jamnagar
\n\t\t\t\t\t(O&M)<\/p>\n
1,32,416.00<\/p>\n
3<\/span><\/p>\n
Rajkot(O&M)<\/p>\n
2,33,509.00<\/p>\n
4<\/span><\/p>\n
Bhuj
\n\t\t\t\t\t(O&M)<\/p>\n
1,09,658.00<\/p>\n
5<\/span><\/p>\n
Porbandar(O&M)<\/p>\n
1,67,629.00<\/p>\n
6<\/span><\/p>\n
Gondal
\n\t\t\t\t\t(TR)<\/p>\n
1,52,007.00<\/p>\n
7<\/span><\/p>\n
Anjar
\n\t\t\t\t\t(TR)<\/p>\n
90,127.00<\/p>\n
8<\/span><\/p>\n
Sikka
\n\t\t\t\t\tTPS<\/p>\n
5,469.00<\/p>\n
9<\/span><\/p>\n
Kutch
\n\t\t\t\t\tLignite TPS<\/p>\n
78,440.00<\/p>\n
10<\/span><\/p>\n
Surendranagar
\n\t\t\t\t\t(O&M)<\/p>\n
95,664.00<\/p>\n
11<\/span><\/p>\n
Junagadh
\n\t\t\t\t\t(O&M)<\/p>\n
47,142.00<\/p>\n
Total<\/p>\n
12,38,496.00<\/p>\n
Thus,
\n\tconsidering order passed by Appellate Tribunal and also while
\n\tkeeping in mind para 39 of Pension Scheme, Appellate Tribunal has
\n\tobserved that  claim
\n\trelates to period in between 16.11.1995 to 9.2.1996 i.e. the claim
\n\trelates to period prior to application for exemption which has not
\n\tbeen deposited by petitioner. Thus, only that period has been
\n\tconsidered by Appellate Tribunal but subsequent period which was
\n\tconsidered in 14B order 1st
\n\tJanuary, 2002 to 25th
\n\tJanuary, 2002, that has not been
\n\ttaken into account at all by Appellate Authority. Another aspect is
\n\tthat advertisement\/notice dated 25th
\n\tJanuary, 1996 where period for application for exemption is given to
\n\tsuch establishment which is to be filed on or before 15th
\n\tFebruary, 1996 and considering date of advertisement 25th
\n\tJanuary, 1996 and in advertisement\/notice, it is stated that
\n\trelaxation will be granted to such establishment upto 3rd
\n\tMarch, 1996 before which they should come up with their full scheme
\n\tso arrange for obtaining formal exemption. Meaning thereby, in
\n\tresponse to notice dated 25.1.1996, any establishment can file such
\n\tapplication on or before 15th
\n\tFebruary, 1996, undisputedly in this case such application was made
\n\tby petitioner establishment on 8th
\n\tFebruary, 1996 for such exemption, therefore, petitioner, in terms
\n\tof notice, entitled for such relaxation upto 3rd
\n\tMarch, 1996.\n<\/p>\n
Therefore,
\n\tin light of this back ground, question which is to be considered by
\n\tPF Authority is levy for damages is to be imposed upon petitioner
\n\tfor period in between 16th
\n\tNovember, 1995 to 8th
\n\tFebruary, 1996 or not ? For that, certain aspects and factors are
\n\trequired to be considered by Authority, which has been considered by
\n\tDivision Bench of this Court in case of Star
\n\tof Gujarat Textile Mills Ltd. And Regional PF Commissioner and
\n\tAnother, 1993-I-LLJ page 1023. Relevant
\n\tpara 5 of said judgment is quoted
\n\tas under:\n<\/p>\n
“5.\tThe
\n\tfact remains that apart from the sweeping statement in the summing
\n\tup paragraph of the impugned proceedings, the factors which have
\n\tbeen set down as relevant to be considered while assessing the
\n\tquestion of imposition of damages, have  not been discussed at all
\n\tby the 1st
\n\trespondent, In the pronouncement in Organo
\n\tChemical Industries & Anr. v. Union of India & Ors.,<\/a> (supra)
\n\tthe Supreme Court observed (p.427);\n<\/p>\n
“xxx
\n\tHaving regard to the punitive nature of the power exercisable under
\n\tSec. 14B and the consequences that ensue therefrom, an order under
\n\tsec. 14B must be a speaking order containing the reasons in support
\n\tof it. The guidelines are provided in the Act and its various
\n\tprovisions, particularly in the word “damages” the
\n\tliability for which in sec. 14B arises on the “making of
\n\tdefault”. While fixing the amount of damages, the Regional
\n\tProvident Fund Commissioner usually takes into consideration as he
\n\thas done here, various factors viz. The number of defaults, the
\n\tperiod of delay, the frequency of defaults and the amounts involved.
\n\txxxx”\n<\/p>\n
Here,
\n\twe find that it is not a case of total omission
\n\tto make the contributions. There had been only delayed
\n\tcontributions. The periods are different and the days of delay are
\n\talso different. A glance at the statement of damages,
\n\tannexed to the impugned proceedings shows that the days of delay
\n\trange  from a minimum of 7 days to a maximum of 47 days but a flat
\n\trate of 25% has been adopted by the 1st
\n\trespondent and certainly we cannot commend the impugned proceedings
\n\ton the ground that the application of the norms, as set down by the
\n\tpronouncement of the Supreme Court, referred to above, has been
\n\tdone. This only exposes lack of application of mind on the part of
\n\tthe 1st
\n\trespondent. As to how the functionary under sec. 14B of the Act
\n\tshould discharge the obligations has been expatiated by S.
\n\tNatarajan, J. as he then was, of the High Court of Madras in KA
\n\tSubramaniam v. The Commissioner, the Regional PF Tamil Nadu &
\n\tPondicherry States & Anr.,<\/a> 1979 Labour and Industrial Cases 981,
\n\tin the following terms:\n<\/p>\n
\t“xxx
\n\tThe authority empowered to impose damages has to, first of all,
\n\tdecide whether the facts of a case warrant the imposition of
\n\tdamages. If his assessment of the situation results in a finding
\n\tthat imposition of damages is called for, then, he has to determine
\n\tthe quantum of damages with reference to relevant factors, such as
\n\tthe loss suffered by the affected party, the hardship caused to the
\n\tbeneficiaries, the efforts taken by the enforcement machinery, to
\n\tcollect the defaulted payments etc. There is, therefore, a clear
\n\tline of distinction between imposition of penalty which is penal in
\n\tnature and imposition of damages which is compensatory in nature.\n<\/p>\n
\tXxxxx\txxxxx\txxxxx”\n<\/p>\n
We
\n\tcannot straightway say tht what has been done by the 1st
\n\trespondent by the impugned proceedings does not conform to what has
\n\tbeen recapitulated by the learned single Judge in the above
\n\tpronouncement. The petitioner has been declared as sick unit and the
\n\t1st
\n\trespondent declines to take note of it for any consideration on a
\n\tpeculiar reasoning that the concerned authority BIFR has not
\n\tspecifically recommended for partial or total waiver of penal
\n\tdamages under the Act.  When we take note of these features, we have
\n\tno other alternative but to interfere in writ powers. Accordingly,
\n\tthis Special Civil Application is allowed and the matter stands
\n\tremitted back to the file of the 1st
\n\trespondent for him to reconsider the whole question, taking note of
\n\tthe norms set down therefor by the pronouncements, referred to above
\n\tas well as other pronouncements throwing light on the subject.”\n<\/p>\n
It
\n\tis also relevant to consider by PF Authority that mere delay in
\n\tmaking payments should not prejudice employees for whose benefit
\n\tfund is created. Where  default is found,  but  no apparent  fault,
\n\tquantum of damages should be compensatory rather than penal in
\n\tnature as decided by Madras High Court in case of Shanti
\n\tGarments Pvt. Ltd. v. Regional Provident Fund Commissioner,
\n\treported in 2003 LLR 256 (Madras). Relevant
\n\tparagraph 4, 7 and 8 of said judgment are quoted as under:\n<\/p>\n
\t “4.\t\tIn
\n\tthe decision of the Supreme Court reported in 1979(II) LLJ 416
\n\t(ORGANO CHEMICAL INDUSTRIES AND  ANOTHER  v. UNION OF  INDIA  AND
\n\tOTHERS),<\/a>  while  upholding the  validity  of  Section  14B  of the
\n\tEmployees’ Provident Funds Act, 1952, it was observed as
\n\tfollows (page 304) :-\n<\/p>\n
“The
\nexpression “damages” occurring in Section  14B  is,  in
\nsubstance,  a  penalty imposed on the employer for the breach of the
\nstatutory obligation.  The object of imposition of penalty  under
\nSection  14B  is  not merely “to  provide  compensation  for
\nthe employees”.  We are clearly of the opinion that the
\nimposition of damages  under  Section  14B  serves  both  the
\npurposes.   It  is  meant  to  penalise defaulting employer as also
\nto provide reparation for the amount of loss suffered by the
\nemployees.  It is not only a warning to employers in general not  to
\ncommit  a  breach  of  the  statutory requirements  of  Section  6,
\nbut  at  the  same  time it is meant to provide compensation  or
\nredress  to  the  beneficiaries,  i.e.,  to  recompense  the
\nemployees for  the loss sustained by them.  There is nothing in the
\nsection to show that the damages must bear relationship to the loss
\nwhich  is  caused  to the beneficiaries  under  the  Scheme.    The
\nword “damages” in Section 14B is related to the word
\n“default”.  The words used in Section 14B are ”
\ndefault in the payment of contribution”  and,  therefore,  the
\nword  “default”  must  be construed  in  the  light  of
\nPara  38  of the Scheme which provides that the payment of
\ncontribution has got to be made by the 15th of the following  month
\nand,  therefore,  the  word  “default”  in  Section 14 B
\nmust mean “failure in performance” or “failure to
\nact.” At the same time, the imposition of  damages under
\nSection 14B is to provide reparation for the amount of loss suffered
\nby the employees.”\n<\/p>\n
\tIt
\nwas further observed :\n<\/p>\n
“Nor
\ncan  it  be  accepted  that  there  are  no  guidelines provided for
\nfixing  the  quantum  of  damages.    The  power of the Regional
\nProvident  Fund  Commissioner  to  impose  damages  under  Section
\n14B  is  a quasi-judicial function.    It must be exercised after
\nnotice to the defaulter and after giving him a reasonable opportunity
\nof being heard.  The  discretion to  award  damages  could be
\nexercised within the limits fixed by the Statute. Having regard to
\nthe punitive nature of the power  exercisable  under  Section 14B
\nand  the  consequences  that ensure therefrom, an order under Section
\n14B must be a “speaking order” containing the reasons  in
\n support  of  it.    The guidelines are provided in the Act and its
\nvarious provisions, particularly in the  word  “damages”
\nthe  liability  for  which  in Section 14B arises on the “making
\nof default”.   While  fixing  the  amount  of  damages,  the
\nRegional Provident  Fund  Commissioner usually takes into
\nconsideration, as he has done here, various factors, viz., the number
\nof defaults, the period of delay,  the frequency of defaults and the
\namounts involved.  The word “damages” in Section 14B lays
\ndown sufficient guidelines for him to levy damages.”\n<\/p>\n
\tJudged
\n\tin the light of the above  decisions,  it  is  seen that the
\n\trespondent has not examined the matter in its proper perspective.
\n\tIt is  not  disputed  that  the  petitioner  was all along willing
\n\tto deposit the contribution and was asking for supply of code number
\n\tand since no code number was furnished he was depositing the amount
\n\tin a separate account in State Bank of India.  As observed by the
\n\tSupreme Court, the  appropriate  authority  has discretion to
\n\tquantify  the  amount of damages payable.  Where the default is
\n\twanton, the quantum of damages would obviously be higher, but where
\n\tthere  is no  willful  default,  the appropriate authority is to
\n\tconsider the question of quantum in a different spirit.\n<\/p>\n
\t8.
\n\t As observed by the Supreme Court, the direction  regarding payment
\n\tof damages is compensatory as well as penal in nature. Where there
\n\tis no willful violation, quantum of damages should be more or less
\n\tcompensatory in nature  and where the default is continuous or
\n\tintentional, damages payable in addition to being compensatory would
\n\tbe penal as well.  The delay  in  making payments  obviously should
\n\tnot prejudice the employees for whose benefit the Fund is created.
\n\tWhere ” default” is found,  but  no  apparent “fault”,
\n\t the quantum of damages should be compensatory rather than penal in
\n\tnature.”\n<\/p>\n
Though
\n\tRegional Provident Fund Commissioner has power under section 14B, he
\n\tshould have taken into consideration various factors as decided in
\n\tcase of Regional Provident Fund Commissioner, Punjab, Haryana,
\n\tHimachal Pradesh and Union Territory, Chandigarh v.Toylor Instrument
\n\tCompany (India)  Ltd., reported in 1993 LLR 334. Therefore,
\n\tin this case, instead of deciding controversy  between parties and
\n\tlegal aspects, it is better and would meet ends of justice between
\n\tparties if PF Authority is directed to reconsider entire matter and
\n\tdecide it after considering various and several factors which are
\n\trelevant with proper application of mind after giving reasonable
\n\topportunity of hearing to petitioner.\n<\/p>\n
In
\n\tview of aforesaid observations made by this Court and after
\n\tconsidering order passed by PF Authority under section 14B of Act as
\n\twell as order passed by Appellate Tribunal, both orders in question
\n\tare required to be quashed and set aside. Accordingly, order passed
\n\tby PF Authority dated 30th June, 2004 under section 14-B
\n\tof Act as well as order passed by Appellate Tribunal dated 14th
\n\tJune, 2010 both are hereby quashed and set aside  without expressing
\n\tany opinion on merits including legal aspects and let PF Authority
\n\tmay decide a fresh question whether petitioner is liable to pay any
\n\tdamages as required under section 14B of Act or not? It is open for
\n\tpetitioner to make fresh submissions as well as produce relevant
\n\tdocuments before PF Authority within period of one month from date
\n\tof receiving present order and thereafter, PF Authority shall have
\n\tto pass appropriate well reasoned order in accordance with law while
\n\tconsidering all relevant factors as discussed by Division Bench of
\n\tthis Court in case of Star of Gujarat Textile Mills Ltd. And
\n\tRegional PF Commissioner and Another, 1993-I-LLJ page 1023
\n\t and in case of Shanti Garments Pvt. Ltd. v. Regional
\n\tProvident Fund Commissioner, reported in 2003 LLR 256
\n\t(Madras) within period of six months from date of receipt of
\n\tcopy of present order. Accordingly, Rule is made absolute in each
\n\tpetition with no order as to costs.\n<\/p>\n
(H.K. Rathod,J.)<\/p>\n
Vyas<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Gujarat vs Assistant on 28 March, 2011 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print SCA\/15124\/2010 22\/ 22 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 15124 of 2010 To SPECIAL CIVIL APPLICATION No. 15134 of 2010 ========================================================= GUJARAT ELECTRICITY BOARD (NOW GUJARAT ENERGY TRANSMISSION & […]<\/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":[16,8],"tags":[],"class_list":["post-161765","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nGujarat vs Assistant on 28 March, 2011 - 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\/gujarat-vs-assistant-on-28-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gujarat vs Assistant on 28 March, 2011 - 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