Calcutta High Court (Appellete Side)
Bollore Logistics India Private ... vs Regional Provident Fund ... on 29 October, 2021
(Through Video Conference)
29.10.2021
Sl. No.16
BP/KS WPA 17421 of 2021
Bollore Logistics India Private Limited & Anr.
Vs.
Regional Provident Fund Commissioner - I, Regional
Office, Park Street & Ors.
Mr. Soumya Majumdar
Mr. Deepan Kumar Sarkar
Mr. Soumitra Datta
..... For the Petitioners
Mr. Anil Kumar Gupta
.....For the Respondent Nos.1 & 2
Mr. Paritosh Sinha
Mr. Amitava Mitra
Ms. Antara Choudhury
.....For the Respondent No.4
Affidavit of service filed in Court today be kept on
record.
Learned counsel for the respondent Nos.1, 2 and 4
are present.
The challenge in the instant writ petition is
restricted to the imposition of interest under Section 7Q
of the Employees' Provident Fund and Miscellaneous
Provisions Act, 1952 (for short "the 1952 Act") to the tune
of Rs.50,72,956/- by an order dated October 11, 2021
passed by the Regional Provident Fund Commissioner -
I- Regional Office, Park Street for the period from
September 21, 2011 and November 21, 2016.
Mr. Majumdar, learned advocate appearing for the
petitioners draws the attention of this Court to the said
order wherein it was recorded that the establishment
deposited the money through challan in bank on time
and the date mentioned in Annexures - 'A' and 'B'.
Mr. Majumdar also submits that after accepting the
contention of the establishment that they have deposited
the money on time and the authorities exceeded its
jurisdiction by directing the petitioners to pay interest
amounting to Rs.50,72,956/- without assigning any
reasons therefor.
Mr. Gupta, learned advocate appears for the
Provident Fund authorities and submits that the
impugned order being a composite order passed under
Section 14B read with Section 7Q of the 1952 Act, the
instant writ petition is not maintainable as there is a
statutory provision of an appeal under Section 7I against
an order passed under Section 14B of the said Act. He
also relies upon a judgment of the Coordinate Bench of
this Court reported at (2005) 2 WBLR Cal 898 (M/s.
Capri Home Products Ltd. & Ors. Vs. The Regional P. F.
Commissioners (I) W.B., Sikkim, the Adndaman &
Nicobar Island & Ors. in support of his submission.
I have heard learned counsels for both the parties
and have considered the materials on record.
The dispute involved in the instant writ petition is
required to be decided after exchange of affidavits.
However, Mr. Majumdar, learned advocate appearing for
the petitioners prays for an interim order restraining the
respondents from recovering any amount on account of
interest as indicated in the order dated October 11, 2021.
For the limited purpose of deciding the issue
with regard to passing of the interim order, the point of
maintainability of the instant writ petition is to be
decided first. Section 7A of the 1952 Act empowers the
competent authority to determine the amount due
from any employer under the provisions of the 1952
Act, the Scheme or the Pension Scheme or the
Insurance Scheme as the case may be.
Section 7Q of the said Act provides that the
employer shall be liable to pay simple interest at the
rate of 12% or at such higher rate as may be specified in
the scheme on any amount due from him under the
1952 Act from the date on which the amount has
become so due till the date of its actual payment.
Thus, from a bare reading of the aforesaid two
provisions of the 1952 Act it is evident that interest is to
be charged at the rate fixed under Section 7Q on the
amount determined to be due from the employer
under Section 7A of the said Act.
The order passed under Section 7A is appealable
under Section 7I of the said Act.
The Co-ordinate Bench in Capri Home Products
(supra) held that in case a composite order is passed
under Section 7A read with Section 7Q of the 1952 Act
the Tribunal while deciding an appeal against an order
passed under Section 7A of the said Act is competent to
grant consequential relief by reducing the amount of
interest in the event the quantum of amount
determined under Section 7A of the said Act is
reduced.
However, in the instant case the impugned order
is an order passed under Section 14B and 7Q of the said
Act. The same is not a composite order passed under
Section 7A read with 7Q of the Act.
Section 14B provides for recovery of damages.
The object of levying damages under Section 14B and
charging interest under Section 7Q is different. An
order passed under Section 14B is also appealable
under Section 7I of the said Act. In the instant case the
petitioner has preferred an appeal against the order
passed under Section 14B. But in an appeal against an
order passed under Section 14B of the said Act the
Tribunal is not empowered to grant any consequential
relief in the form of reduction of interest charged under
Section 7Q of the said Act as interest under Section 7Q
is charged on the amount determined under Section 7A
and not on the penalty levied under Section 14B. As
such the judgment of the Co-ordinate Bench in the case
of Capri Home Products (supra) is not applicable to the
facts of the instant case.
Furthermore, an order passed under Section 7Q is
not appealable. Thus, in my considered opinion the
instant writ petition is maintainable. However, for the
purpose of grant of an interim order, the petitioners are
to be put to terms. Upon perusal of the order impugned
this Court is of the prima facie view that the impugned
order insofar as imposition of interest is concerned is
bereft of any reasons therefor. However, since, the
petitioners have been directed to pay a sum of
Rs.52,72,956/- on account of interest, the impugned order
insofar as it relates to realization of the said amount shall
remain stayed subject to the following conditions:-
(1) There shall be an unconditional order of stay
of operation of the order in so far as it relates
to realization of the aforesaid amount till
November 10, 2021. (2) Petitioners shall
deposit a sum of Rs.26,00,000/- (Rupees
Twenty Six Lac only) with the Learned
Registrar General, High Court at Calcutta by
way of Demand Draft on or before November
10, 2021. (3) In the event, the said amount is
deposited within the time limit mentioned
hereinabove, the order of stay shall continue
till the end of November, 2021 subject to the
condition that the petitioners shall deposit the
balance amount of Rs.24,72,956/- on or before
November 30, 2021. In the event, the said
amount is deposited within the aforesaid
time limit, the order of stay shall continue till
the disposal of the instant writ petition.
It is, however made clear that in the event the
petitioners make a default in making payment as
indicated above, the order of stay shall stand vacated
without any further reference to this Court.
Let affidavit in opposition be filed within three
weeks after reopening of this Court after Puja Vacation;
reply, if any, be filed within one week thereafter.
Liberty to mention after expiration of the period
fixed for exchange of affidavits strictly upon notice to
each other.
(Hiranmay Bhattacharyya, J.)
