Calcutta High Court (Appellete Side)
Ontrack Systems Limited vs The Regional Provident Fund ... on 13 June, 2022
Item No.1.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 13.06.2022
DELIVERED ON:13.06.2022
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
MAT 1160 of 2021
With
I.A. No.CAN 1 of 2021
Ontrack Systems Limited
VERSUS
The Regional Provident Fund Commissioner - II,
Employees Provident Fund Organization & Ors.
Appearance:-
Mr. Abhrajit Mitra, Sr. Adv.,
Mr. Soumya Majumder,
Mr. Subhankar Nag,
Mr. Soumbho Ghose,
Mr. B. Kumar,
Mr. D. Sen .....for the appellant.
Mr. Anil Kumar Gupta .. for the respondents.
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
1. This intra-Court appeal filed by the appellant is directed
against the judgment and order dated 14th September, 2021 in
W.P.A. No.13339 of 2019. The appellant challenged an order
passed by the respondent authorities under Section 7Q and 14B of
the Employees' Provident Funds and Miscellaneous Provisions Act,
1952 (for short, "the Act"). The orders were passed in the year
2014 and the writ petition was filed in the year 2019.
2. The undisputed fact is that there was delay in remittance
of the employees' as well as employer's contribution to the
respondent organisation. Consequently, the levy of interest was
automatic and it appears that the appellant has not contested
the levy of interest and the same has been recovered in full and
the contribution, that is, both the employees' and employer's
contribution has been remitted belatedly. What remains is the
damages, which is payable under Section 14B of the Act, which
has been quantified as more than Rs.44 lakhs.
3. It is submitted by Mr. Mitra, learned senior counsel
appearing for the appellant that out of the said amount, Rs.4
lakhs has been recovered by way of bank attachment. It is
submitted that in paragraph 8 of the impugned judgment and
order, the learned Single Bench has made an observation that the
appellant with a view to deliberately avoid the mandate under
Section 7O of the Act has not preferred a statutory appeal since
a pre-deposit of 75% of the amount in dispute is a pre-
condition. It is submitted by the learned senior counsel that
in terms of the provisions of Section 7I read with Section 7O,
such mandatory pre-deposit is not required when an appeal is
preferred as against an order passed under Section 14B of the
Act. Therefore, it is submitted that the finding rendered by the
learned writ Court is incorrect. The learned senior counsel
submits that he is very well aware of the recent decision of the
Hon'ble Supreme Court in the case of Horticulture Experiment
Station Gonikoppal, Coorg Vs. The Regional Provident Fund
Organisation reported in 2022 LiveLaw (SC) 202 wherein it has
been held that mens rea or actus reus is not an essential
element for imposing penalty / damages for breach of civil
obligations / liabilities. However, it is submitted that the
authority, which passed the order has not discussed the
submissions made on behalf of the appellant and the order is a
non-speaking order.
4. The learned standing counsel appearing for the respondents
submitted that the question of considering hardship faced by the
appellant cannot arise insofar as the employees' contribution is
concerned, as it has already been deducted but not remitted to
the organisation within the time permitted. Reliance has been
placed on the decision of the Hon'ble Supreme Court in the case
of M/s. Hindustan Times Ltd. Vs. Union of India and Ors.
reported in AIR 1998 SC 688.
5. Considering the fact that from 2014, the department has
been unable to implement its orders and recovered the damages,
which has been quantified and levied and also owing to the fact
that the appellant has raised a plea that it is no longer in
business and the banks, which have advanced loans have attached
their assets, we are of the view that the appellate remedy
available under the Act need not be foreclosed to the appellant.
In fact, that appears to have been the thought process of the
learned Single Bench as we can decipher from the observations
made in paragraph 8 of the impugned judgment and order.
6. We fully agree with the other observation made by the
learned Single Bench as regards the purpose for which the Act
was enacted and that it is a social welfare legislation.
7. Thus, considering the overall facts and circumstances of
the case, we are of the view that the appellant may be permitted
to avail the appellate remedy before the Tribunal within the
time that may be fixed by this Court. So far as the cost, which
has been directed to be paid to the West Bengal State Legal
Services Authority, Kolkata is concerned, we are of the view
that the cost can be modified and a sum of Rs.50,000/- (Rupees
Fifty Thousand) be paid to the West Bengal State Legal Services
Authority, Kolkata to be utilised for any one of the schemes
which has been approved by the National Legal Services
Authority, New Delhi. Such cost shall be remitted within two
weeks from the date of receipt of the server copy of this
judgment and order. After remitting the cost along with the
receipt, the appellant is granted two weeks' time thereafter to
file an appeal before the Tribunal and if such an appeal is
filed, the Tribunal shall not reject the appeal memorandum on
the ground of limitation and the appeal may be considered in
terms of the provisions of the Act.
8. In this regard, the Tribunal may take note of the
submissions of the appellant that no pre-deposit is called for
when an appeal is preferred as against an order passed under
Section 14B of the Act and decide the same in accordance with
law.
9. It is made clear that the above timelines shall not be
extended at any cost and until the appeal is preferred, the
respondent organisation shall not initiate any coercive action
as was submitted before the Hon'ble Division Bench on 14th
January, 2022.
10. With the above observations, the appeal and the connected
application are disposed of.
11. No costs.
12. Urgent photostat certified copy of this order, if applied
for, be furnished to the parties expeditiously upon compliance
of all legal formalities.
(T.S. SIVAGNANAM, J)
I agree,
(HIRANMAY BHATTACHARYYA, J.)
NAREN/PALLAB(AR.C)
