IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
WP(C) NO. 2179 OF 2020
PETITIONER:
CRESCENT PUBLIC HIGH SCHOOL
PANAMARAM, WAYANAD, PIN-670721,
REPRESENTED BY ITS GENERAL SECRETARY, ABDUL AZIZ K.
BY ADVS.
P.RAMAKRISHNAN
SMT.PREETHI RAMAKRISHNAN (P-212)
SRI.PRATAP ABRAHAM VARGHESE
RESPONDENTS:
1 ASSISTANT PROVIDENT FUND COMMISSIONER
SUB REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN,
ERAHIPALAM PO, KOZHIKODE-673006.
2 THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR
COURT,KARSHAKA ROAD, ERNAKULAM, KOCHI-682011.
BY ADV ABRAHAM P.MEACHINKARA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
31.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 2179 OF 2020
2
JUDGMENT
Order Ext.P3 dated 11.10.2019 rendered in Appeal No.30 of 2017 of the Tribunal is under challenge on behalf of the petitioner. Petitioner establishment had employed less than 20 persons in its initial years and therefore outside purview of the Employees Provident Fund and Miscellaneous Provisions Act and thereafter it was brought under the coverage with effect 01.08.2022. The proceedings under Section 7 for not depositing the contributions of the employees was initiated and amount assessed has been deposited but for the lapses the respondent authorities initiated the action by invoking the provisions of Section 14B and 7Q of the EPF& MP Act, 1952 which is sine qua non. Though order passed under Section 7Q is not appealable, but despite that it was appealed along with the damages assessed under Section 14B to the extent of Rs.4, 61,093/-. The appellate authority reduced the damages to the extent of 70%. Noticing all these facts, this Court while issuing the notice in this case on 27.01.2020 passed the following order:
WP(C) NO. 2179 OF 2020 3 "Sri.Abraham P.Meachinkara, the learned counsel appearing for the 1 respondent seeks time to get instructions.
Heard Sri.T.C.Krishna, the learned counsel appearing for the petitioner.
By separate orders, the petitioner has been directed to pay a sum of Rs.4,61,093/- towards damages under Section 14B of Act 19 of 1952 and a sum of Rs.2,50,478/- towards interest under Section 7Q of the Act. The main contention advanced by the learned counsel is that challenging the order passed under Section 7A of the Act, the petitioner herein had preferred an appeal before the Tribunal and a stay was granted. According to the learned counsel, if that be the case, imposition of damages under Section 14B for the belated remittance cannot be sustained. Placing reliance on a decision of this Court in Regional Provident Fund Commissioner v. Harrisons malayalam Ltd.¹, and that of the Hon'ble Supreme Court in Assistant Provident Fund Commissioner, EPFO and Another v. Management of RSI Textiles India Pvt. Ltd. thr. its Director', it is urged that presence or absence of mens rea and or actus reus would be a determinative factor in imposing damages under Section 14B and this aspect was not taken note of by the Tribunal while passing the impugned order. Having regard to the facts, I am of the view that the interest under Section 7Q which has been assessed at Rs.2,50,478/- will have to be remitted by the petitioner herein and I find no reason to interfere with that part of the order. Insofar as the amount assessed at Rs.4,61,093/- towards damages under Section 14B is concerned, I direct the petitioner herein to deposit WP(C) NO. 2179 OF 2020 4 25% of the amount assessed as per Ext.P1 within a period of three weeks from today. Coercive proceedings if any shall be kept in abeyance for a period of four weeks.
Post after three weeks with the statement/objection, if any."
2. Learned counsel appearing on behalf of the petitioner submits that the amount assessed under Section 7Q and 25% of the damages assessed have already been deposited. It was not denied by the respondents. He submits that it is a school which is a charitable organization depending on public contribution for imparting service to society by offering educational facilities to the children hailing from socially and economically backward classes and the amount may be reduced to 50%.
3. I am afraid the aforementioned argument cannot be accepted in the absence of any material on record to show that it was/is not running for profit or as to whether there has been an exemption under Section 12AA of the Income Tax Act or not. Thus, I do not find the order of the appellate authority reducing the damages to the extent of 75% to be unfair and unreasonable rather it is justiciable.
4. At this stage, learned counsel for the petitioner requests WP(C) NO. 2179 OF 2020 5 for payment of the balance amount in installments. Learned counsel for the respondents says that 25% of Rs.4,61,093/- has already been deposited. The balance amount is too paltry to be deposited in instalments. Considering the predicament of the petitioner and the Covid 19 pandemic, I accept the prayer of the petitioner and direct to deposit the balance amount in four equal monthly instalments commencing from 15.09.2022 to end by 14.12.2022. In case of default of one of the instalments respondents will be at liberty to take action in accordance with law.
Writ petition is disposed off.
Sd/-
AMIT RAWAL JUDGE nak WP(C) NO. 2179 OF 2020 6 APPENDIX OF WP(C) 2179/2020 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF ORDERS DATED 28.4.2017 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2 TRUE COPY OF MEMORANDUM OF APPEAL SUBMITTED BEFORE THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF ORDER DATED 11.10.2019 IN APPEAL NO.30/2017 PASSED BY THE 2ND RESPONDENT.