Delhi High Court
Manpower Bureau vs Assistant Provident Fund ... on 4 May, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: May 04, 2017
+ W.P.(C) 11144/2016 & C.M.43567/2016
MANPOWER BUREAU ..... Petitioner
Through: Mr. Somesh Kumar Dubey,
Advocate
versus
ASSISTANT PROVIDENT FUND COMMISSIONER, DELHI
(SOUTH) ..... Respondent
Through: Mr. R.C. Chawla, Standing
Counsel with Mr. Pradeep C. Sati
and Mr. Inderjeet Sidhu,
Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% ORAL
Vide impugned order of 21st September, 2016, Employees'
Provident Funds Appellate Tribunal, New Delhi (hereinafter referred to
as the Tribunal) directs that 50% of the assessed damages with interest
under Section 7Q of the Employees' Provident Funds & Miscellaneous
Provisions Act, 1952 be deposited by petitioner.
At the outset, learned counsel for petitioner submits that the
substratum of the order is not being assailed, but the finding on question
of waiver of entire damages is being challenged. Learned counsel for
petitioner submits that the Tribunal has arbitrarily directed that 50% of
the assessed damages be deposited by petitioner and this direction is
without any basis.
Upon hearing and on perusal of impugned order, I find that the
Tribunal in impugned order has reached to a conclusion that respondent is
duty bound to apply the applicable rates i.e. 5%, 10%, 15% and 25%
respectively in a graded manner. The precise submission of petitioner's
counsel is that these are the maximum rates and the fact of petitioner
being defrauded by its employee has not been considered in its right
perspective, to reduce the rates for the period of delay and in view of
mitigating circumstances, there should have been waiver of damages and
interest prior to 26th September, 2008 in view of decision in Roma Henry
Security Services Pvt. Ltd. V. Central Board of Trustees, 193 (2012) DLT
486.
During the course of the hearing, it was pointed out by petitioner's
counsel that it is also noted in impugned order that Mr. Gurinder Singh
Bajaj, employee of petitioner, had admitted before the police that he had
misappropriated provident fund contributions pertaining to petitioner's
establishment, but still this aspect has not been fully appreciated by the
Tribunal. During the course of hearing, it was also brought to the notice
of this Court that proceedings under Section 138 of the Negotiable
Instruments Act, 1881 are pending against the said employee of petitioner
regarding dishonouring of cheque issued by the said employee in respect
of misappropriated amount.
I find substance in the aforesaid stand taken by petitioner as in the
appeal (Annexure P-10) filed by petitioner, it has been specifically
averred that due to fraud committed by petitioner's employee, provident
fund contributions were misappropriated and forged challans were
submitted on behalf of petitioner.
Thus, this Court is of the considered view that proper assessment
ought to have been undertaken by the Tribunal instead of directing that
50% of the assessed damages are payable by petitioner. The Tribunal is
also required to justify as to why maximum rates are being applied in
petitioner's case particularly when due notice of defrauding of petitioner
has been taken by the Tribunal.
In view of aforesaid, impugned order of 21st September, 2016 is set
aside with direction to the Tribunal to hear the parties afresh and pass a
speaking order in light of decision in Roma Henry (supra).
The parties are directed to appear before the Tribunal on 18 th May,
2017. Records be remitted back forthwith through special messenger.
With aforesaid directions, the petition and application are disposed
of while leaving the parties to bear their own costs.
(SUNIL GAUR)
JUDGE
MAY 04, 2017
s
