Bharat Rubber Regenerating Co. Ltd. vs The Regional Provident Fund Commissioner and Another

Narendra Nath Tiwari, J.—The petitioner is aggrieved by order dated 24th August, 2007 passed by the Regional Provident Fund Commissioner under the provisions of Section 14(B) of the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter to be called as ''E.P.F. Act''). By the said order, the petitioner has been ordered to pay Rs. 10,05,467/- as penal damages and Rs. 3,48,763/- towards interest.

The petitioner has prayed for quashing the said order as also the order dated 18th September, 2007, issued by the Respondent No. 8 under the purported provisions of Section 8(F) of the E.P.F. Act, whereby the Branch Manager, Indian Overseas Bank has been directed to pay an amount of Rs. 13,54,230/- on the part of the petitioner and the petitioner''s account, with the said bank has been attached.

The petitioner is a Company engaged in the commercial production of its finished goods i.e. reclaimed rubber, since the year 1975.

The petitioner-company is an establishment. It has been registered under the provisions of the E.P.F. Act and has been allotted E.P.F. Code No. JH/3398.

According to the petitioner, it had to face adverse condition towards the end of the financial year 1999-2000 due to continuous labour unrest, which led to lockout in the company from 31st July, 2000 to 18th February, 2001, causing the company heavy loss. The company became a seek unit within the meaning of Cause O of Sub-section (1) of Section 3 of the Sick Industrial Companies (Special Provision) Act, 1985 in the year 2000-01.

The respondents initiated a proceeding against the petitioner by issuing notice dated 24th November, 2005 u/s 7(A) of the E.P.F. Act, alleging non-compliance of the provisions of the Act and the schemes framed there under. The said proceeding was concluded by order dated 28th April, 2006 and the petitioner was directed to make payment of Rs. 10,93,961/- as damage for non-payment of contribution for the period from 04/04 to 09/05 as also the amount of Rs. 19,099/- towards interest provisionally calculated u/s 7(Q) of the E.P.F. Act till the conclusion of the enquiry.

In compliance of the said order, the petitioner is said to have deposited the following amounts:

Date Amount Account No. 26.5.2006 Rs. 19,099/- towards, interest 26.5.2006 Rs. 40,190/- 21 26.5.2006 Rs. 803/- 22 04.7.2006 Rs. 88,411/- 2 01.9.2006 Rs. 50,029/- 1

The petitioner informed the respondents about the said payment by its letter dated 11th September, 2006 and requested the respondents to grant installments for payment of the amount of provident fund. The respondents, thereafter, sent letter dated 18th October, 2006 to the Manager, Indian Overseas Bank, Bistupur, directing to make payment of Rs. 9,14,528/- to avoid any legal action. In response to the said letter, the Bank made payment of the said amount of Rs. 9,14,528/- on 30th October, 2006 by Bankers Cheque.

A proceeding u/s 14(B) of the EPF Act was, thereafter, initiated against the petitioner for failure in making payment of the provident fund and allied dues for the period 03/01 to 01/07.

In the meanwhile, there was labour unrest in the Company and the employees went on strike from 18th June, 2007, which lasted till 20th July, 2007. The petitioner had informed about the said strike and had expressed its inability to appear and file his reply. The petitioner wanted some time.

By order dated 24th August, 2007, the Regional Provident Fund Commissioner held the petitioner liable for payment of damages at the rate specified u/s 32(A) for the period from 03/01 to 01/07. The amount shown as dues against different account numbers in total is Rs. 10,05,467/- as damage and Rs. 3,48,763/- towards penal interest. (Annexure-6, the impugned order).

The petitioner by letter dated 7th September, 2007 represented before the Regional Provident Fund Commissioner, stating, inter alia, that the interest shown as dues for the period from April, 2004 to September, 2005 was already paid. The petitioner has also played for an opportunity to clarify and explain the payments already made to the different accounts. It was also stated that no notice was ever issued u/s 14(B) and earlier notices were sent to the petitioner u/s 7(A) and the petitioner had already appeared and explained the relevant facts.

The Respondent No. 3, without considering the petitioner''s prayer, passed order dated 18th September, 2007 under the purported provisions of Section 8(F) of the EPF Act, directing the Branch Manager, Indian Overseas Bank to immediately pay an amount of Rs. 13,54,230/- i.e. the amount of damage and interest for the default in remittance, as a result, the petitioner''s account with the bank has been attached (Annexure-8).

It has been contended that the initiation of the proceeding u/s 14(B) of the EPF Act is arbitrary and contrary to the legal provisions of the entire proceeding and the notices are liable to be quashed by this Court. The said section is a penal provision. The petitioner has already made the payment of the dues as alleged, and there was no default on its part. The provision of Section 14(B) of the EPF Act is not attracted. There is no finding of any misrepresentation on the part of the petitioner for the purpose of avoiding payment of the alleged dues, which is a sine qua non for taking action u/s 14 of the EPF Act. The proceeding u/s 7(A) was already initiated. A parallel proceeding u/s 14(B) is not maintainable and the impugned order passed by the respondents is wholly arbitrary and without jurisdiction.

The writ petition has been contested by the respondents by filing counter affidavit. It has been stated, inter alia, that the petitioner under the provisions of the EPF Act is liable to pay the required contribution to the fund, but the petitioner failed to remit the dues within the prescribed time. The petitioner defaulted for several years, causing heavy financial loss to the fund. In order to recoup the loss/damages under the provision of Section 14(B) of the EPF Act and interest u/s 7(Q) of the said Act have been levied against the petitioner, which is in accordance with the provisions of law. There is no illegality or arbitrariness in the impugned order.

It has been further stated by the respondents that the petitioner''s establishment is a regular defaulter. In the interest of the workers as also of the fund, both the actions under Sections 7(A) and 14(B) are legal and justified. The relevant period of the proceeding u/s 14(B) is from 03/01 to 01/07, whereas the relevant period of the proceeding u/s 7(A) is from 04/04 to 09/05. The proceeding u/s 7(A) was concluded on 18th April, 2006 and notice u/s 14(B) was issued on 30th May, 2007.

Even in the case of interim remittance by the establishment, there is no bar for levying damages. The petitioner had made representation only for grant of installment, but there was no undertaking for regular monthly remittance and other formalities or any bank guarantee for the amount to be paid by the petitioner. The mere submission of the application is not sufficient for granting installment.

During the proceeding u/s 14(B) of the EPF Act, the petitioner was given opportunity to represent their case on 11th June, 2007, 25th June, 2007 and 6th August, 2007. On the request and on the ground of strike in the unit, the petitioner was granted time fixing 20th August, 2007. On that day, neither any representative was present nor any intimation was received. The proceeding was disposed of on 24th August, 2007. Full opportunity was given to the petitioner, but they failed to respond. There was no illegality in deciding the proceeding u/s 14(B) of the EPF Act for the period for which the proceeding u/s 7(A) is pending. The damages have been levied on the amount of interim payment. The order of attachment of the petitioner''s account with the said bank is wholly legal and justified in the circumstances of the case. The scope of Section 14(B) is different from that of Section 14. Section 14 provides for punishment with imprisonment and fine Provision of Section 14(B) of the EPF Act provides for recovery of damages on the default of payment of any contribution to the fund by the employer. The petitioner has also got efficacious remedy by way of appeal. Any person aggrieved by an order passed under Sub-section (1) of Section 7(A) or Section 14(B) of the EPF Act can prefer appeal to the appellate tribunal. In view of the said alternative remedy also, the writ petition is not maintainable.

Mrs. Subha Jha, learned Counsel, appearing on behalf of the respondents, in support of their stand, referred to and placed heavy reliance on unreported judgment of the Division Bench of this Court in P.K. Press Metal (P) Ltd. v. The R.P.F.C. and Ors. L.P.A. No. 352 of 2000 and analogous cases and the decision of the Hon''ble Supreme Court in Regional Provident Fund Commissioner Vs. M/s. K.T. Rolling Mills Pvt. Ltd., .

In P.K. Press Metal''s case (Supra), the Division Bench, relying on the decision of the Supreme Court in Organo Chemical Industries and Another Vs. Union of India (UOI) and Others, had upheld the quantum of damages, giving liberty to the appellant to prefer appeal against the order of damages.

In Organi Chemical Industries (Supra), the Supreme Court held that a penalty for default or failure in performance of duty imposed under the Act as well as a compensation for the loss sustained by the employees, recovery of damages equivalent to the amount of arrears from a habitually defaulting employer, on facts, may be justified. It has further been held that determination of damages is not an inflexible application of a rigid formula. The words ''as it may think fit to impose'' show that the authority is required to apply its mind to the facts and circumstances of the case.

Mrs. Subha Jha, learned Counsel, further drew the attention of the Court that the rules of natural justice for determination of damages, whether followed or not is dependent on facts of each case. The Division Bench in P.K. Press Metal''s case (Supra) did not interfere with the order of the authority on the ground of non-service of notice, as the case was adjourned from time to time on the request of the appellant of that case.

In Regional Provident Fund Commissioner v. K.T. Rolling Mills Pvt. Ltd. (Supra), the Supreme Court held that long period of delayed remittance are relevant for imposing damages on the establishment. The default for a long period is a continuing cause of action and there is no bar in imposing damages even after lapse of long period.

Mrs. Subha Jha, learned Counsel, further relied on a decision of the Supreme Court in R.P.F. Commissioner, Bombay v. Shree Krishna Metal Manufacturing Co. 1962 3 SC 1536 and submitted that the provisions of E.P.F. Act are enacted to serve beneficent purpose and constitute a welfare measure to create funds, which could be drawn upon by certain categories of employees working in factory to meet their pressing demands and in case, two views are possible, one which advances the object deserves to be accepted. Since the impugned order has been passed for the benefit of the employees, the same does not warrant interference of this Court.

Mrs. Sheela Prasad, learned Counsel, appearing on behalf of the petitioner, on the other hand, urged that the petitioner by its letter dated 7th September, 2007 informed the Regional Provident Fund Commissioner that the interest due for the period from April, 2004 to September, 2005 has already been paid. Request was made for giving opportunity of hearing to clarify the position. But no opportunity was given to the petitioner. No notice u/s 14(B) of the Act was ever served on he petitioner. The proceeding initiated u/s 7(A) of the EPF Act is Still pending. The Respondent No. 3 passed the order directing the Branch Manager, Indian Overseas Bank to immediately pay the amount of Rs. 13,54,230/- of damage and interest. By the order of the Respondent No. 3, the petitioner''s bank account has been attached. The said order has been passed without concluding the proceeding u/s 7(A) and finally determined the liability against the petitioner. There is no finding of the default in payment of any amount. No penalty and damages can be ordered u/s 14(B) of the EPF Act and that too without giving opportunity of hearing to the petitioner.

Having heard learned Counsel for the parties and considered the facts and materials on record and submissions made by them, this Court finds that it is an admitted position that there was no representation of the petitioner in the proceeding u/s 14(B) of the EPF Act. The petitioner is said to have represented its case in the proceeding u/s 7(A) of the said Act on 7th August, 2007. It has been held that the petitioner-establishment did not prefer to represent his case against the purported notice sent to the petitioner u/s 14(B) of the EPF Act in spite of adjournments given to the establishment.

In Paragraph-11 of the counter affidavit filed on behalf of the Respondent Nos. 1 to 3, it has been clearly stated that the proceeding u/s 14(B) relates to the period from 03/01 to 01/07 and the proceeding u/s 7(A) in the instant case was for the period from 04/04 to 09/05. The period 03/01 to 01 /07, thus, covers the period from 04/04 to 09/05.

On behalf of the petitioner, it has been contended that there cannot be a parallel proceeding of the same period under Sections 7(A) and 14(B) of the EPF Act.

In order to appreciate the contentions of the parties, it is necessary to see the relevant provisions of the EPF Act. Section 7(A) of the EPF Act runs as follows:

7-A. Determination of moneys due from employers- (1) The Central Provident Fund Commissioner, any Additional Central Provident Fund Commissioner, any Deputy provident Fund Commissioner, any Regional Provident Fund Commissioner or any Assistant Provident Fund Commissioner, may, by order.-

(a) in a case where a dispute arises regarding the applicability of this Act to an establishment, decide such dispute; and

(b) determine the amount due from any employer under any provision of this Act, the Scheme or the Pension Scheme or the Insurance Scheme, as the case may be,

and for any of the aforesaid purposes may conduct such inquiry as he may deem necessary.

(2) The Officer conducting the inquiry under Sub-section (1) shall, for the purposes of such inquiry, have the same powers as are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), for trying a suit in respect of the following matters, namely-

(a) enforcing the attendance of any person or examining him on oath:

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavit;

(d) issuing commissions for the examination of witnesses; and any such inquiry shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code (45 of 1860).

(3) No order shall be made under Sub-section (1) unless the employer concerned is given a reasonable opportunity of representing his case.

(3-A) Where the employer, employee or any other person required to attend the inquiry under Sub-section (1) fails to attend such inquiry without assigning any valid reason or fails to produce any document or to file any report or return when called upon to do so, the officer conducting the inquiry may decide the applicability of the Act or determine the amount due from any employer, as the case may be, on the basis of the evidence adduced during such inquiry and other documents available on record.

(4) Where an order under Sub-section (1) is passed against an employer ex parte, he may, within three months from the date of communication of such order, apply to the officer for setting aside such order and if he satisfies the officer that the show-cause notice was not duly served or that he was prevented by any sufficient cause from appearing when the inquiry was held, the officer shall make an order setting aside his earlier order and shall appoint a date for proceeding with the inquiry:

Provided that no such order shall be set aside merely on the ground that there has been an irregularity in the service of the show-cause notice if the officer is satisfied that the employer had notice of the date of hearing and had sufficient time to appear before the officer.

Explanation.- Where an appeal has been preferred under this Act against an order passed ex parte and such appeal has been disposed of otherwise than on the ground that the appellant has withdrawn the appeal, no application shall lie under this sub-section for setting aside the ex parte order.

(5) No order passed under this section shall be set aside on any application under Sub-section (4) unless notice thereof has been served on the opposite party.

On plain reading of the said section, it is clear that the same, infer alia, provides for determination of the amount due from employers under any provision of this Act, the scheme or the pension scheme or the insurance scheme, as the case may be, after holding an enquiry.

Section 14(B) of the EPF Act provides power for recovery of the damages. Section 14(B) is reproduced herein below:

14-B. Power to recover damages- Where an employer makes default in the payment of any contribution to the Fund, the Pension Fund or the Insurance fund or in the transfer of accumulations required to be transferred by him under Sub-section (2) of Section 15 or Sub-section (5) of Section 17 or in the payment of any charges payable under any other provision of this Act or of any Scheme or Insurance Scheme or under any of the conditions specified u/s 17, the Central Provident Fund Commissioner or such other officer as may be authorised by the Central Government, by notification in the official Gazette, in this behalf may recover from the employer by way of penalty such damages, not exceeding the amount of arrears, as may be specified in the Scheme:

Provided that before levying and recovering such damages, the employer shall be given a reasonable opportunity of being heard:

Provided further that the Central Board may reduce or waive the damages levied under this section in relation to an establishment which is a sick industrial company and in respect of which a Scheme for rehabilitation has been sanctioned by the Board for Industrial and Financial Reconstruction established u/s 4 of the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986), subject to such terms and conditions as may be specified in the scheme.

On going through the said section, it is evident that the provision under this section gives power of recovery of damages from the employer if the employer defaults in payment of contribution to the fund or any payment of any charges payable under any provision of the Act or any scheme or insurance scheme framed under the Act.

It is an admitted position that the proceeding u/s 7(B) for the intervening period, which has been considered for recovery of damages, is still pending. The actual determination u/s 7(A) for moneys due from the petitioner and its default in making payment of the amount of contribution is yet to be made. It has been mentioned in the impugned order that the petitioner had appeared and represented its case during the proceeding u/s 7(A). However, the impugned order does not discuss about the effect of the pendency of the proceeding against the petitioner u/s 7(A) of the EPF Act. The petitioner has taken stand that in compliance of the earlier order, it has already deposited the amounts in Account Nos. 1, 2, 21 and 22 along with some amount towards interest. The said fact has not been denied by the respondents.

No final order has been passed, determining the amount payable by the petitioner u/s 7(A) of the EPF Act. The pendency of the said proceeding has not been denied by the respondents.

It is evident from the impugned order that the petitioner has not taken part in the hearing and the order has been passed in absentia. There is mention of the reply and the stand taken by the petitioner in the proceeding u/s 7(A). In the said proceeding, the amount payable by the petitioner has to be determined. The damages and interest are to be imposed and calculated, if there is any default on the part of the petitioner. There is no such finding against the petitioner till date, giving any occasion for recovery of damages on default of the petitioner. And the petitioner has been made liable for recovery of Rs. 10,05,467/- as penal damage and Rs. 3,48,763/- as penal interest. For non-payment of the said amount, the bank account of the petitioner has been sought to be attached by impugned letter dated 18th July, 2007, addressed to the Branch Manager, Indian Overseas Bank.

Section 14(B) of the EPF Act is a penal provision and it has to be strictly construed. The provision of the said Act does not provide for recovery of any amount arbitrarily. The amount payable by the employer has to be determined, if the same is not admitted, whether any employer has defaulted in payment of any contribution to the fund i.e. pension fund, insurance fund and so on has to be first determined. The same is sine qua non for passing the order of recovery u/s 14(B) of the EPF Act.

The respondents have failed to meet the points raised by the petitioner and convince this Court that there has been any determination of the amount of default, giving occasion for recovery of the damages or penal interest. Since the proceeding u/s 7(A) i.e. for determination of due from the employer is still pending. It is still to be determined what is due from the petitioner. Recovery of damages u/s 14(B) of the EPF Act without ascertaining the default of the employer in the payment of contribution to the Provident Fund. Pension Fund, insurance Fund etc. and without giving the employer reasonable opportunity or being heard is not permissible in view of clear scheme and provision of the EPF Act.

The decisions referred to above and relied upon by the respondents are on different facts and issues and the same have got no application to the facts of the instant case and are of no help to the respondents.

That being the position, the impugned order (Annexure-6) cannot sustain. The impugned order dated 24th August, 2007 is, thus, hereby quashed. For the said reasons, the order of attachment of the petitioner''s bank account, enforcing payment of the said amount, is also quashed. This writ petition is allowed.

However, this order shall not be an impediment in proceeding against the petitioner in accordance with law.

There is no order as to costs.