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Judgment
Heard Mr. Piyush Chitresh, counsel appearing on behalf of the petitioner.
Heard Mr. Rupesh Singh, counsel appearing on behalf of the respondent-Employees Provident Fund Organisation.
This application has been filed for the following reliefs:-
"In the instant application, petitioner prays for clarification/modification of the order dated 13.11.2009 passed in C.P. No. 5 of 2004 passed by Hon'ble Mr. Justice R.K. Merathia by suitably modifying the order with the direction to the CBT to consider the request of the petitioner/applicant for waiver of damages on merit and not to reject the same on technical grounds which has already been rejected by the Hon'ble Court vide order dated 24.04.2009 in the instant company proceedings.
For suitable modification of the order dated 13.11.2009 by directing the BIFR to recommend the application of the petitioner for waiver of the damages in view of the sanctioned scheme of rehabilitation scheme in respect of the petitioner Company by this Hon'ble Court so that the application for waiving of the damages under Para 32 B of the EPF Scheme 1952 and 2nd Proviso to Section 14B of the EPF and MP Act 1952 is considered by the CBT.
During the pendency of the instant application the recovery of the amount may be kept in abeyance/stayed."
The background of the present case is as under:-
a. Admittedly the petitioner is a government company. However, the petitioner suffered loss and accordingly reference was made to the Board for Industrial and Financial Reconstruction ( hereinafter referred to as BIFR) under Section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA) in the year 1992 which was registered as BIFR Case No. 511 of 1992.
b. The BIFR vide order dated 06.07.2004 recommended the company to be wound up pursuant to which Company Petition being C.P. No. 5 of 2004 was registered before this court.
c. The petitioner company had also challenged the order dated 06.07.2004 of BIFR in a writ petition being W.P. (C) No. 4513 of 2004 which was being heard analogously with C.P. No. 5 of 2004.
d. Vide order dated 17.10.2003 passed by the authority under the Employees Provident Fund Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act of 1952) petitioner company was held liable for payment of damages under Section 14(B) as also payment of interest under Section 7(Q) of the aforesaid Act of 1952 for a liability of Rs. 95 Crore and odd and 13 crore and odd respectively. Against this order the petitioner company had preferred appeal before the Employment Provident Fund Appellate Tribunal, New Delhi and at the relevant point of time the Appellate Tribunal was non-functional and interim relief was granted by this court vide order dated 26.07.2004 in W.P. (C) No. 3658 of 2004.
e. It is stated that the amount on account of interest levied under Section 7(Q) of the aforesaid Act of 1952 was already deposited and only the amount relating to damages under Section 14(B) of the aforesaid Act remained unpaid.
f. In the meantime, the present petitioner moved before the Central Board of Trustees for waiver of damages imposed upon the petitioner under Section 14(B) of the aforesaid Act of 1952 and the government of India vide letter dated 25.10.2007 recommended for waiver of damages under Section 14(B) of the aforesaid Act of 1952 by the Central Provident Fund Commissioner and the Chairman, Central Board of Trustee of Employment Provident Fund Organization.
g. However, Central Board of Trustees vide order dated 20.12.2007 rejected the prayer for waiver of damages on the ground that there was no recommendation of waiver of damages of BIFR under Section 32-B of the said Act of 1952.
h. This order dated 20.12.2007 was challenged by the petitioner in C.P. Case No. 5 of 2004 vide I.A. No. 536 of 2008.
i. The said I.A. was disposed of vide order dated 24.04.2009 wherein the order as contained in letter dated 20.12.2007 rejecting the application of the petitioner for waiver of damages was set aside by this court and Chairman, Central Board of Trustees Employment Provident Fund Organization was directed to consider the said request for waiver of damages and pass a speaking order in accordance with law after hearing the concerned parties preferably within two months from the date of receipt of a copy of the order.
j. In the meantime, the appellate authority under the aforesaid Act of 1952 became functional who issued a direction for deposit of 25% of the assessed amount of damages against which the petitioner preferred the writ petition being W.P. (C) No. 2814 of 2010 but ultimately the Appellate Tribunal dismissed the appeal vide order dated 01.06.2010 and against the said order, the petitioner preferred another writ petition being W.P. (C) No. 3830 of 2010.
k. Ultimately the revival package to the petitioner company was finally approved by this court and vide order dated 13.11.2009 passed in W.P. (C) No. 4513 of 2004, the winding up proceeding being C.P. No. 5 of 2004 and W.P. (C) No. 4513 of 2004 were disposed of in terms of the I.A., affidavits and revival packages and the petitioner was set free from winding up proceeding. The Central Government, the State Government and the petitioner were directed to act in terms of revival package.
l. After the dismissal of the aforesaid two cases on 13.11.2009, the application which was pending before the Central Board of Trustees, Employment Provident Fund Organization for waiver of damages, was considered and vide order dated 12.11.2010 the petitioner company was rejected in terms of Para 32(B) of the Employment Provident Fund Scheme 1952.
m. It is alleged that the said rejection was on the very same ground which was set aside by this court and the matter was remanded back to the Authority for fresh consideration vide order dated 24.04.2009 passed in I.A. No. 536 of 2008 in C.P. No. 5/2004.
n. It is further not in dispute that the aforesaid order of rejection dated 12.11.2010 has been challenged by the petitioner in W.P. (C) No. 6235 of 2010 which is pending for consideration before this court.
Further the petitioner company has filed the present petition for modification of the final order.
o. This court further finds that in the present case, vide order dated 10.12.2010 interim order of no coercive steps was passed and a petition for vacating the stay was filed by the Employment Provident Fund Organization which was numbered as I.A. No.3311 of 2014 and this court vide order dated 11.03.2016 directed that I.A. be heard along with the main CMP and interim order was extended.
p. Against the order dated 11.03.2016, the Employment Provident Fund Organization moved the Hon'ble Supreme Court in the Special Leave Petition (Civil) vide diary No. 38682 of 2018. The Hon'ble Supreme Court refused to interfere in the matter, but considering the entirety of the matter a request has been made to this court to take up the matter itself for final disposal as early as possible preferably within 6 months. A copy of the said order passed by the Hon'ble Supreme Court has been furnished by the counsel appearing on behalf of the Employment Provident Fund Organization during the court proceedings which is kept on record. Passing of the aforesaid order dated 27.09.2019 by the Hon'ble Supreme Court is admitted by the counsel appearing on behalf of the petitioner.
Counsel for the petitioner at this stage submits that revival scheme of HEC was pending before this court in C.P. Case No. 5 of 2004 as the relevant point of time, accordingly, aforesaid I.A. No. 536 of 2008 was filed and vide order dated 24.04.2009, the order contained in letter dated 20.12.2007 refusing to entertain the prayer for waiver of damages was set aside and the Chairman Central Board of Trustees, Employees Provident Fund Organization was directed to consider the request for waiver of damages and pass a speaking order in accordance with law after hearing the concerned parties. He further submits that thereafter C.P. Case No. 5 of 2004 along with W.P.(C) No. 4513 of 2004 were disposed of by this court vide judgment dated 13.11.2009 and vide communication dated 12.11.2010 ( Annexure-12 to the present petition), the application filed pursuant to the aforesaid order dated 24.04.2009 passed in C.P. Case No. 5 of 2004, was rejected on same technical ground which was the reason for rejection vide letter dated 20.12.2007. The learned counsel for the petitioner submits that the present modification petition has been filed in the aforesaid background. Learned counsel submits that subsequent order dated 12.11.2010 has been challenged by the present petitioner in W.P. (C) No. 6235 of 2010 which is pending before this Court for consideration. He further submits that there is no order passed in W.P. (C) No. 6235 of 2010 and the said writ petition is to be heard along with the present petition.
Counsel appearing on behalf of the respondent on the other hand submits that pursuant to the order dated 24.04.2009 the petitioner has already challenged the same is W.P. (C) No. 6235 of 2010 and the prayer made in the present petition is misconceived. He further submits that legality and validity of the subsequent order dated 12.11.2010 is subject matter of writ petition no. 6235 of 2010 and the relief prayed for in this petition has got no bearing in the subsequent writ petition filed by the petitioner. Accordingly, he submits that there is no occasion to hear the present petition along with W.P. (C) No. 6235 of 2010 and let the writ petition be decided on its own merit. He further submits that dismissal of this petition will not have no bearing in the said writ petition. The learned counsel also submits that present respondent had filed a petition before this court for vacating the stay granted on 10.12.2010 and the said petition for vacating stay was rejected vide order dated 11.03.2016 and it was directed that I.A. for vacating the stay being I.A. No. 3311 of 2014 is to be heard along with the C.M.P. He further submits that this order was challenged before the Hon'ble Supreme Court in Special leave Petition (Civil) vide Diary No. 38682 of 2018 and the same has been disposed of vide order dated 27.09.2019 and the Hon'ble Supreme Court has requested this court to take up the main matter itself for final disposal as early as possible preferably within 6 months. Counsel appearing on behalf of the petitioner does not dispute the passing of the aforesaid order by the Hon'ble Supreme Court.
After hearing counsel for the parties and after considering the facts and circumstances of this case this court finds that the prayer of the petitioner for waiver of damages was rejected by the respondent authority under the Employees Provident Fund and Miscellaneous Provisions Act, 1952, vide order contained in letter dated 20.12.2007 which in turn was set aside by this court vide order dated 24.04.2009 passed in C.P. No. 5 of 2004 with a direction to the Chairman, Central Board of Trustees, Employees Provident Fund Organization to consider the matter afresh and pass a speaking order after hearing the parties. C.P. No. 5 of 2004 with W.P. (C) No. 4513 of 2004 was disposed of finally vide judgment dated 13.11.2009. Thereafter vide order dated 12.11.2010 (Annexure-11) Central Board of Trustees, Employees Provident Fund Organization has rejected the prayer of the petitioner which is admittedly subject matter of dispute in W.P. (C) No. 6235 of 2010.
This court is of the considered view that as the subsequent order dated 12.11.2010 passed by the Central Board of Trustees, Employees Provident Fund Organization is under challenge in the subsequent writ petition, no relief touching upon the legality and validity of the order dated 12.11.2010 can be passed in this case. This court further finds that so far as first prayer for modification is concerned, no such relief can be granted as on the date of filing of the present petition the prayer for waiver of damages was already rejected vide order dated 12.11.2010 and admittedly the order dated 12.11.2010 is not under challenge in the present petition. Moreover, the said order dated 12.11.2010 was passed subsequent to disposal of C.P. No. 5/2004.
So far as the second prayer in this petition is concerned, this court is of the considered view that no direction can be issued to BIFR to recommend the application of the petitioner for waiver of damage as the direction to consider the application for waiver of damage was already issued by this Court vide order dated 24.04.2009 in C.P. No. 5 of 2004 which has been rejected vide subsequent order dated 12.11.2010 which in turn is subject matter of challenge in W.P. (C) No. 6235/2010.
In view of the aforesaid facts and circumstances this court is not inclined to modify the order dated 13.01.2009 passed by this court in C.P. No. 5 of 2004 which was disposed of along with W.P. (C) No. 4513 of 2004. Accordingly, this petition is hereby dismissed.
It is made clear that dismissal of this petition will not have any bearing in the writ petition being W.P. (C) No. 6235 of 2010.
Pending I.A., if any, stands disposed of.