{"id":30283,"date":"2004-12-03T00:00:00","date_gmt":"2004-12-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shriram-general-finance-vs-the-regional-provident-on-3-december-2004"},"modified":"2015-01-29T08:54:41","modified_gmt":"2015-01-29T03:24:41","slug":"shriram-general-finance-vs-the-regional-provident-on-3-december-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shriram-general-finance-vs-the-regional-provident-on-3-december-2004","title":{"rendered":"Shriram General Finance vs The Regional Provident on 3 December, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
Shriram General Finance vs The Regional Provident on 3 December, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDated: 03\/12\/2004 \n\nCoram \n\nThe Honourable Mr. Justice V. KANAGARAJ    \n\nW.P. No.9745  of 1997 and W.P.No. 9746 of 1997  \nand \nW.M.P.No. 15507 of 1997  \n\n\nShriram General Finance \n        -(P) Limited,\nrep. by its Director            ... Petitioner in both W.Ps.\n\n-Vs-\n\nThe Regional Provident\nFund Commissioner,  \nNo.20, Royapettah High Road, \nMadras  600 014.                ... Respondent in both W.Ps.<\/pre>\n
                Petitions under Article 226  of  The  Constitution  of  India,
\npraying  to  issue  a  writ  of certiorari and writ of certiorarified mandamus
\nrespectively.\n<\/p>\n
For Petitioner :  Mr.  Manohar Gupta<\/p>\n
For Respondents :  Mr.  K.  Gunasekar <\/p>\n
:COMMON ORDER
\n                W.P.  No.9745 of 1997 has been filed praying to issue  a  writ
\nof  certiorari,  to call for the records and quash the order bearing Ref.TN\/19
\n904\/SDC-2\/97 dated 12.6.1997 on the file of the respondent.\n<\/p>\n
                2.  W.P.  No.9746 of 1997 has been filed praying  to  issue  a
\nwrit  of  certiorarified mandamus, to call for the records and quash the order
\nbearing Reference No.D 5\/TN\/MS\/19904-A\/REGL\/95 dated 16.10.1995 on the file of
\nthe respondent and consequently direct the respondent to treat the  petitioner
\nas  an  independent  establishment  for  the  purpose  of  coverage  under the
\nEmployees Provident Fund and Miscellaneous Provisions Act,1952.\n<\/p>\n
                3.   Today,  when  the  above  matter   was   taken   up   for
\nconsideration,  learned  counsel for the petitioner would submit in respect of
\nW.P.  No.97 45 of 1997 that the petitioner is the Company  incorporated  under
\nthe   Indian  Companies  Act  on  14.10.1988;  that  though  the  Company  was
\nincorporated on 14.10.88, the Company started functioning only  from  January,
\n1993;  that  in  May, 1994, the Company recruited five employees and the staff
\nstrength started with five  recruitment  that  in  November,  19  94,  due  to
\nre-organisation   in  Shriram  Group  Companies,a  few  employees  in  Shriram
\nInvestments Limited were rendered  surplus;  that  the  employees  in  Shriram
\nInvestments   Limited   were   transferred   to   the  petitioner-Company  and
\nconsequently, the establishment was deemed to be covered under  the  Employees
\nProvident Fund Act (hereinafter referred to as “the Act”) from November, 1994;
\nthat  the  petitioner-Company applied for an allotment of code number to remit
\nthe P.F.  Contributions vide their letter dated 23.12.1994; that as there  was
\ndelay  in  the  allotment  of  the  code  number, the amount deducted for P.F.
\ncontributions from the employees along with the  employer’s  contribution  was
\ndeposited  in  a separate bank account exclusively opened for this purpose and
\nthe said amount was not utilised in any manner whatsoever; that in view of the
\nrepeated reminders by the Company to allot a  separate  code  number,  Sri  C.
\nSrinivasan,  Enforcement  Officer held discussions with the Company’s Officers
\non 23.9.95  and  27.9.95  and  informed  the  Company’  s  Officers  that  the
\npetitioner-Company  cannot be treated as an independent unit and separate code
\nnumber could not be granted and  he  wanted  the  Company  to  apply  for  the
\nallotment  of a sub code number; that the petitioner-Company applied for a sub
\ncode number with effect from 1 .5.1994 vide their letter dated  27.9.1995  and
\nclearly stated that they are applying for sub code only under the instructions
\nof Mr.   C.    Srinivasan,  Enforcement  officer  and  that the Provident Fund
\nAuthorities allotted a sub code number with effect from  14.10.1988  by  their
\norder dated 16.10.1995.\n<\/p>\n
                4.  Learned counsel for the petitioner  would  further  submit
\nthat   on   allotment   of  sub  code,  the  petitioner-Company  remitted  the
\ncontributions on 19.3.1996 with a delay  of  five  months  in  depositing  the
\ncontribution,  due  to  administrative  reasons;  that the respondent issued a
\nletter dated 7.10.1996, calling upon the petitioner to show cause  as  to  why
\ndamages  should  not  be  levied  under  Section  14-B  of the Act for delayed
\nremittance of contribution; that the petitioner  submitted  a  detailed  reply
\ndated  9.1.1997  and attended the personal hearing; that the respondent, after
\nhearing the arguments and going through the reply submitted by the petitioner,
\npassed an impugned order on  12.6.1997  ,  levying  damages  to  the  tune  of
\nRs.4,29,169\/-,  failing  which action will be taken under Section 8 of the Act
\nand hence would seek for the relief extracted supra.\n<\/p>\n
                5.   In  support  of  his submissions, learned counsel for the
\npetitioner has  relied  on  the  decision  reported  in  SHANTHI  GARMENTS  v.
\nREGIONAL P.F.  COMMR.    (VOL.101  F.J.R.<\/a>  997) and referred particularly page
\n1000 last paragraph.\n<\/p>\n
                6.  Learned counsel for the petitioner would submit in respect
\nof W.P.  No.9746 of 1997 that there is no provision in the Act to allot a  sub
\ncode  number  with  retrospective effect; that before allotting a sub code the
\nrespondents have to issue notice, but no notice was given to  the  petitioner;
\nthat the petitioner-Company had no employee from 1 988 to November, 1994; that
\nin  the  absence  of any employee, the question of functional integrality does
\nnot arise; that if the petitioner-Company is treated  as  the  branch  of  the
\nShriram  Investments  ltd.,  the  damage is payable by the Shriram Investments
\nLtd.  Only and the branch cannot be liable to pay the damage amount and  hence
\nwould pray for the relief extracted supra.\n<\/p>\n
                7.   In  support  of  his submissions, learned counsel for the
\npetitioner has relied on the decision reported in NEW  PAI  SALES  CORPORATION
\nvs.  R.P.F.   COMMISSIONER  (VOLUME  88 F.J.R.  323) and referred particularly
\npage 329 paragraph 2 and page 326 paragraph 1.\n<\/p>\n
                8.  Learned counsel appearing for the  respondents,  not  only
\nfiled  a  counter, but also submitted that the petitioner himself has admitted
\nin the affidavit that it is a sister  concern  (paragraphs  3  and  4  of  the
\naffidavit);  that  because  of  the  petfitioner’s  request,  the sub code was
\nallotted and the petitioner has paid all the provident fund dues from October,
\n1988 to February, 1996, based on the order of the Provident  Fund  authorities
\nwithout  any  protest; that the petitioner has not challenged the allotment of
\nsub code number or applicability of the Act before any Authority; that if  the
\npetitioner  has  any  objection,  they  can  raise  before  the Provident Fund
\nauthorities under Section 7A of the Act; that as they have no  objection,  the
\nsub  code  was allotted as per Section 2A of the Act; that there is functional
\nintegrality; that the petitioner’s contention  of  keeping  the  amount  in  a
\nseparate  Bank  account  without  any  yield  instead of remitting it into the
\nEmployees Provident Fund Account has  only  resulted  in  heavy  loss  to  the
\nemployees   as   well   as  to  the  respondent-organization;  that  even  for
\ntransferring the amount kept in Bank, the petitioner  has  taken  considerable
\ntime,  thereby  render  themselves  liable  for  statutory  rate of damages as
\nprovided under para 32A of the Employees Provident Fund Scheme, 1952; that the
\ndamages are levied only on belated remittances  of  employees  provident  fund
\ndues  and  not  on  remittances  made  within  the  due  dates; that since the
\npetitioner has no case against the coverage, the issue had not  been  disputed
\nunder  Section  7A of the Act; that the petitioner failed to remit the amounts
\ndeducted from the wages of the employees in time; that it is mandatory on  the
\npart  of  the  respondents  to levy damages invoking the provisions of Section
\n14-B of the Act inasmuch as this respondent has already credited the  interest
\nto  each  subscriber  account as if the contribution had been received in time
\nand hence to offset the loss suffered by the  fund,  damages  are  inevitable;
\nthat  the  petitioner  has  not  exhausted  the  appeal  remedy available with
\nEmployees Provident Fund Appellate Tribunal under Section 7(I) of the Act  and
\non  these  averments,  the  respondents  would  seek for dismissal of the writ
\npetitions.\n<\/p>\n
                9.  In support of his submissions,  learned  counsel  for  the
\nrespondents has relied on the decisions reported in R.P.F.   COMMR.  vs.  S.D.
\nCOLLEGE & OTHERS (II L.L.J.<\/a>  1997 PAGE 55), particularly page 72 paragraph  9,
\nUJWAL TRANSPORT AGENCY v.  U.O.I.  & ANR.  (1998 II L.L.J.  833), particularly
\npage 836 paragraphs  9,10,11  and AJANTA OFFSET & PACKAGING LTD.  v.  REGIONAL
\nP.F.  COMMR.  (2004-II L.L.J.  915, particularly page 917 paragraph 11.\n<\/p>\n
                10.  So far as the judgments cited on the  part  of  the  writ
\npetitioner  are concerned, they are two in number; the first decision rendered
\nin SHANTHI GARMENTS Vs.  REGIONAL  PROVIDENT  FUND  COMMISSIONER  (Volume  101
\nF.J.R.   997);  and  the second decision relating to NEW PAI SALES CORPORATION
\nvs.  R.P.F.  COMMISSIONER (Volume 88 F.J.R.  323).\n<\/p>\n
                11.  So far as the first decision cited above on the  part  of
\nthe counsel for the petitioner is concerned, wherein it is held,
\n                “As  observed  by  the  Supreme Court, the direction regarding
\npayment of damages is compensatory as well as penal in nature.  Where there is
\nno  wilful  violation,  the  quantum  of  damages  should  be  more  or   less
\ncompensatory  in  nature  and  where the default is continuous or intentional,
\ndamages payable in addition to being compensatory would be penal as well.  The
\ndelay in making payments obviously should  not  prejudice  the  employees  for
\nwhose benefit the fund is created.  Where ” Default” is found, but no apparent
\n“fault”,  the  quantum  of damages should be compensatory rather than penal in
\nnature.”\n<\/p>\n
                12.  In the second judgment cited above, a single Judge of the
\nHigh Court of Karnataka citing yet another judgment  rendered  in  ISHA  STEEL
\nTREATMENT, BOMBAY v.  ASSOCIATION OF ENGINEERING WORKERS, BOMBAY<\/a>(71 F.J.R.  11
\nat page 18 :  1987 I L.L.J.427) would hold :\n<\/p>\n
                ”  It  was,  however,  argued  in  this  case on behalf of the
\nworkmen that since the provident  fund  accounts  of  the  employees  and  the
\nEmployees’  State  Insurance accounts of the two units had common numbers with
\nthe authorities concerned and settlements containing similar  terms  (  Copies
\nwhich  are  not  produced before us) had been entered into in 1974 between the
\nmanagement and the workmen of the two units, it should be held  that  the  two
\nunits had  functional  integrality between them.  We are of the view that even
\nthese factors are not sufficient to hold that the two units were one  and  the
\nsame  notwithstanding  the  fact that the nature of the business carried on in
\nthem was the same.  In Indian Cable Co.  Ltd., Vs.   Its  workmen,  [1962]  22
\nFJR:   [1962]  1  LLJ 409, this court has held that the fact the balance sheet
\nwas prepared incorporating the trading results of all the branches or that the
\nemployees of the various branches  were  treated  alike  for  the  purpose  of
\nprovident  fund,  gratuity,  bonus  and  for conditions of service in general,
\ncould not lead to the conclusion that all the branches should  be  treated  as
\none unit for purposes of Section 25-G of the Act.”\n<\/p>\n
                13.   In  the  first  decision  cited  by  the counsel for the
\nrespondent in R.P.F.  Commissioner Vs.  S.D.  College & others  (1997  II  LLJ\n<\/p>\n
55), wherein it is held in paragraph 9 as follows:\n<\/p>\n
                “Under  these circumstances, we do not think that there is any
\njustification in the contention for waiver  of  the  penalty  imposed  by  the
\nRegional Provident Fund Commissioner.  As held earlier, there is no discretion
\nleft to  the  Commissioner to totally waive the penalty.  What was left to his
\ndiscretion is the rate at which it is to be computed by way of  penalty.    In
\nthis  case,  admittedly,  25  per cent of the damages was computed as penalty.
\nSince the respondent had deposited the amount in fixed deposit and it earned 9<\/p>\n
per cent interest thereon, the balance amount is required to be deposited  and
\nthe respondent is directed to deposit the balance amount within six weeks from
\ntoday.”\n<\/p>\n
                14.   In  the  second  decision  cited  by the counsel for the
\nrespondent in Ujwal Transport Agency, Madras Vs.  Union of India  and  another
\n(19 98 II LLJ 833), wherein it is held in paragraph 11 as follows:\n<\/p>\n
        “A  reading  of  the above provision makes it clear that the nature of
\nthe levy is punitive and as the Officer is required to consider the  facts  of
\neach  case, while exercising his discretion under the Act, it would require an
\nenquiry in consonance with the principles of natural justice.  While  imposing
\ndamages, the intention in enacting Section 14-B is to enable the Government to
\nimpose exemplary  or  punitive damages.  But damages cannot be levied when the
\nemployer has already paid the contribution amount though under protest.    The
\nexpression  ‘damage’  occurring  in  Section  14-B is in substances, a penalty
\nimposed 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, but also to penalise default employer as  also
\nto provide  reparation  for the amount of loss suffered by the employees.  The
\ndamage referred to under Section 14-B is different from fine and  penalty  and
\nis intended to compensate the loss to the beneficiaries of the Scheme.”\n<\/p>\n
                15.   In  the  last  decision  cited  by  the  counsel for the
\nrespondent in Ajanta Offset & Packaging Ltd., Vs.    Regional  Provident  Fund
\nCommissioner (2004 II LLJ 915), wherein it is held in paragraph 11 as follows:\n<\/p>\n
        “Insofar  as  the  applicability  of  the  provisions  of  the  Act is
\nconcerned, the provisions apply proprio vigore and all that the respondent  is
\nrequired to  do  is  to  allot a code of number to the petitioner.  It is true
\nthat the code number was allotted only on May 27, 1974 but there is nothing to
\nshow that immediately thereafter the petitioner made some payments towards its
\nprovident fund dues.  Consequently, even if there was some delay on  the  part
\nof  the  respondent  in  allotting  a  code  number  that will not absolve the
\npetitioner of its liability under the Act, which, as mentioned  above  applies
\nproprio vigore.”\n<\/p>\n
                16.   In  consideration of the facts pleaded, having regard to
\nthe materials available on record  and  upon  hearing  the  arguments  of  the
\nlearned  counsel  for the petitioner and the respondent as well, this court is
\nable to find that the petitioner finance company has come forward to file  the
\nabove  two writ petitions, in the first one in W.P.No.974 5 of 1997 praying to
\nquash the Regional Provident Fund Commissioner’s order dated 12.6.1997 and  in
\nthe second writ petition in W.P.No.974 6 of 1997 praying to quash the order of
\nthe  respondent  dated  16.10.1  995, consequently to direct the respondent to
\ntreat the petitioner as  an  independent  establishment  for  the  purpose  of
\ncoverage under the Employees’ Provident Fund and Miscellaneous Provisions Act,
\n1952.\n<\/p>\n
                17.   The  main  contention  of  the  learned  counsel for the
\npetitioner is that in spite of  having  made  sevaral  requests  and  repeated
\nreminders  sent to the respondent to allot a separate code number treating the
\npetitioner company as an independent unit, the respondent refused to allot the
\nsame resulting in the company applying for a sub code number with effects from
\n14.10.1998  and  thereafter  the  petitioner  company  started  remitting  the
\nprovident  fund  contributions with a delay of five months and on this account
\nthe respondent issued a show cause notice dated 7.10.1996  questioning  as  to
\nwhy  the  damages  should  not  be  levied under Section 14-B of the Employees
\nProvident  Fund  and  Miscellaneous  Provisions  Act,  1952  for  the  belated
\nremittance  of provident fund contribution, it is only testifying the validity
\nof the order passed by the respondent dated 16.10.1995, whereby the petitioner
\ncompany has been treated as the branch of the main unit and part and parcel of
\nthe same, which is already functioning under a different code TN\/19904\/ Sriram
\nInvestments, Madras-4 and further  allotting  a  new  code  number  TN\/19904-A
\nenrolling  of  the  eligible employees from the respective date of eligibility
\nand submitting of  the  statutory  returns  and  remitting  the  dues  further
\ncautioning  that  any delay that all belated remittances would attract levy of
\ndamages as prescribed under Section 14-B of the said Act, which is impugned in
\nthe above first writ petition and the order passed  by  the  respondent  dated
\n12.6.1997 thereby levying the very damages to the tune of Rs.4,29,169\/-, which
\nis challenged in the above second writ petition.\n<\/p>\n
                18.   It  needs  to  be discussed the aspect i.e., the request
\nmade on the part of the petitioner to allot separate code number treating  the
\npetitioner  as  an  independent unit, but this request has been turned down by
\nthe respondent authority giving instances in both  the  orders  passed  above.
\nFactually  dealing with the same and concluding that there has been functional
\nintegrality in between the sub unit and the parent  unit  and  therefore  this
\nfunctional integrality being the test to arrive at the conclusion, whether the
\npetitioner  should be treated as separate unit distinct and different from the
\nmain unit or should it be considered as part and parcel of the main  unit  and
\nin  so  far  as  the  facts  and  circumstances encircling the whole affair is
\nconcerned with the sphere of activities of the petitioner  unit  it  has  been
\nfactually  concluded  by the authority that there is functional integrality in
\nbetween the sub unit and the main unit and therefore they have been treated as
\npart and parcel of the same company for the purpose of the Employees Provident
\nFund and Miscellaneous Provisions Act, 1952.\n<\/p>\n
                19.  Secondly, it is the levy of damages as it is  ordered  by
\nthe  order  impugned  in  the  second  writ petition under Section 14-B of the
\nEmployees Provident Fund and Miscellaneous Provisions Act, 1952.\n<\/p>\n
                20.  All the decisions cited on the part of the petitioner and
\nthe respondent, the relevant passages of which are extracted supra, would only
\nbe focussed to the effect that if belated remittances are made on the part  of
\nthe  employer,  the  authority is empowered to levy such damages and such levy
\ncould only vary in terms of the degree relating to the  period  of  delay  and
\nwhether  factually  damages or penal damages, depending upon the circumstances
\nof each case, could be ordered under Section 14-B  of  the  Act.    Therefore,
\nthere  cannot  also  be  any  serious  objection  raised  on  the  part of the
\npetitioner nor the same is sustainable under law as though for  such  levy  of
\ndamages,  the respondent is not empowered to pass orders or levy damages as it
\ncould be seen from the orders of the respondent impugned  in  both  the  above
\nwrit  petitions,  particularly  in the second writ petition above, so as to be
\ntermed as arbitrary or unreasonable or even without jurisdiction.  The levy of
\ndamages was cautioned in the above first writ  petition  and  ordered  in  the
\nsecond  writ  petition  by the order impugned therein and they are quite legal
\nand enforceable and this Court does not find  any  valid  or  tangible  reason
\nexisting  either  in  the  orders passed, which are impugned in both the above
\nwrit petitions or the manner in  which  the  same  have  been  passed  by  the
\nrespondent  and  therefore the interference of this court sought to be made by
\nthe petitioner in both the above writ  petitions  are  neither  necessary  nor
\nwarranted  in the facts and circumstances of the case and in law and hence the
\nfollowing order.\n<\/p>\n
In result,<\/p>\n
        (i) For the above discussions held both  the  writ  petitions  do  not
\nmerit acceptance but they become only liable to be dismissed and are dismissed
\naccordingly;\n<\/p>\n
        (ii) the  order passed in Ref.No.TN\/19904-A\/SDC-2\/97 dt.  12.6.1997 in
\nW.P.No.9745    of    1997    and     the     other     order     passed     in
\nRef.No.D5\/TN\/MS\/19904-A\/REGL\/95  dated 16.10.1995 by the respondent herein are
\nhereby confirmed;\n<\/p>\n
        (iii) consequently, connected W.M.P.No.15507\/1997 is also dismissed;\n<\/p>\n
        (iv) However there shall be no order as to costs.\n<\/p>\n
ks<\/p>\n
Index:Yes
\nInternet:Yes<\/p>\n
Copy to
\nThe Regional Provident Fund Commissioner,
\nNo.20, Royapettah High Road,
\nMadras 600 014.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Shriram General Finance vs The Regional Provident on 3 December, 2004 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 03\/12\/2004 Coram The Honourable Mr. Justice V. KANAGARAJ W.P. No.9745 of 1997 and W.P.No. 9746 of 1997 and W.M.P.No. 15507 of 1997 Shriram General Finance -(P) Limited, rep. by its Director … […]<\/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-30283","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nShriram General Finance vs The Regional Provident on 3 December, 2004 - 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\/shriram-general-finance-vs-the-regional-provident-on-3-december-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shriram General Finance vs The Regional Provident on 3 December, 2004 - 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