Delhi High Court
M/S Dentsu One Pvt Ltd vs Regional P, F, Commissioner-If ... on 24 December, 2020
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:25.12.2020
00:00:17
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 24th December, 2020
+ W.P.(C) 11008/2020 and CM APPLs. 34393/2020, 34394/2020
M/S DENTSU ONE PVT. LTD. ..... Petitioner
Through: Mr. S.P. Arora and Mr. Rajiv Arora,
Advocates. (M: 9899233114)
versus
REGIONAL P, F, COMMISSIONER-II DELHI
(SOUTH) ..... Respondent
Through: Ms. Inderjeet Sidhu, Advocate.
Mr. Krishnakumar, Assistant
Provident Fund Commissioner, RO
Delhi South
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done by video conferencing.
2. The present petition challenges the impugned order dated 3rd
December, 2020 passed by the Central Government Industrial Tribunal
(hereinafter "CGIT") by which the CGIT has, subject to the deposit of
Rs.12 lakhs, stayed order dated 11th August, 2020 passed under Section 14B
of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952
(hereinafter "EPF Act") and admitted the appeal of the Petitioner against
the same.
3. This is the second round of litigation by the Petitioner-Company. In
the earlier round of litigation, the matter was remanded back by the ld.
Division Bench of this Court for reconsideration vide order dated 24th
January, 2019. The operative portion of the order reads as under:
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:24.12.2020 22:12
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:25.12.2020
00:00:17
"17. Consequently, the Court sees no reason to
interfere with the impugned order of the learned
Single Judge in so far as remitting the matter to
the Competent Authority for a fresh determination
is concerned. For that matter, even the direction in
the impugned order that the Appellant must be
given four weeks" time to properly reply to the
SCNs dated 22nd April 2014 and thereafter the
Competent Authority should proceed afresh
without being influenced either by its own earlier
order dated 23rd January 2015 or of the order of
the Appellate Authority does not call for any
interference.
18. The Court would like to add that in making a
fresh determination, the Competent Authority will
also not be influenced by any observation of the
learned Single Judge including the observation
that the circular dated 28th November 1990 does
not have the force of law. The Competent Authority
will also not be influenced by the observations on
the merits of the case by this Court in the present
order. In other words, all contentions of both
parties are left open to be urged before the
Competent Authority who will decide the matter
afresh in the manner indicated.
19. The Court directs that the sum of Rs.
62,05,360/- deposited by the Appellant with the PF
Authority shall be kept by the PF Authority in a
fixed deposit with a nationalized bank initially for
a period of six months and should be kept renewed
during the pendency of the proceedings before the
Competent Authority, who will issue appropriate
directions in relation thereto at the time of final
disposal of the SCNs.
20. The Appellant as well as the PF Authority are
at liberty to place all the relevant facts and
documents before the Competent Authority. The
Appellant will file its reply to the SCNs dated 24th
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:24.12.2020 22:12
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:25.12.2020
00:00:17
April 2014 not later than 1st March 2019. The
Competent Authority will hear the parties and
endeavor to render its decision not later than 30th
June 2019."
4. Pursuant to this order, the authority has made a fresh determination
vide order dated 11th August, 2020. The operative portion of the said order
reads as under:
"22. I, Subrata Bhaumik, Assessing Officer,
Regional Office, Delhi (South), apply my mind and
in exercise of the powers conferred under Section
14B of the Act order for levy of damages
(depending on period of default). I am of the
considered opinion that the ends of justice will
meet if damage are levied at the rate envisaged in
Para 32A of the Employees Provident fund
Scheme, 1952, Para 5 of the Employees' pension
scheme, 1995 and Para 8A of the Employees
Deposit Linked Insurance Scheme, 1976. Initially
the two notices no. DS/NHP/0032004/000/enf
503/damages dated 13.03.2014 and no.
DS/NHP/32004/000/Enf503/Damages/9997 dated
18.03.2014 were issued amounting of
Rs.1,93,51,713/- in respect of 14B & 7Q. In
response of these notices establishment submitted
vide letter dated 10.03.2015 that the establishment
has already made the payment of Rs.62,05,360.
Same has been considered. The damages so levied
have been worked out (Account-wise) on the basis
of the Challans submitted by the establishment for
the period from 01.04.1996 to 12.09.2014 having
examined the facts of the case,
submission/arguments made and in the light of the
provisions of the Act and Scheme framed there
under, and in exercise of the powers vested upon
me under Section 14B of the Act, determine the
following PF dues as payable by the employer in
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:24.12.2020 22:12
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:25.12.2020
00:00:17
respect of the establishment:-
PF A/C Number Penal Damages U/s 14B
Account No.-1 8864824
Account No.-2 531666
Account No.-10 2736895
12133607
(Rs. One crore Twenty one lakh thirty three
thousand six hundred and seven only)"
5. Submissions have been made on behalf of the Petitioner-Company
and the Department by Mr. Arora and Ms. Inderjeet Sidhu, ld. counsels. The
contention of Mr. Arora, ld. counsel for the Petitioner- Company is that
there was no clarity as to whether deposits were to be made in respect of
expat employees of the Petitioner-Company, which is a subsidiary of a
Japanese company. From the time when the clarification was issued by the
Department in respect of expat employees, the provident fund dues were
deposited and wherever interest was liable to be paid even that deposit was
made. It is submitted that the Petitioner-Company has more than 300
employees in respect of which there has been no default in deposit of
provident fund.
6. On the other hand, Ms. Sidhu, ld. counsel for the Department submits
that there is clear finding of mens rea in the Petitioner's case, which resulted
in the imposition of damages under Section 7Q of the EPF Act, as is evident
from a reading of the order itself, which shows that the Company had
defaulted continuously on several occasions.
7. Without going into the competing contentions of the parties, since the
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:24.12.2020 22:12
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:25.12.2020
00:00:17
appeal is pending before the CGIT, the only question that is to be seen is as
to whether the condition for grant of stay is to be interfered with or not. A
perusal of the operative portion of the order extracted above, dated 11th
August, 2020 shows that the total amount computed under Sections 14B and
7Q of the EPF Act is Rs.1,93,51,713/-. The admitted position is that a sum
of Rs.62,05,360/- is lying with the Department which almost constitutes
1/3rd of the amount determined under Sections 14B and 7Q of the EPF Act.
Though there is no doubt that the CGIT has the discretion in directing the
conditions for grant of stay orders, since a substantial amount is lying
deposited with the Department, this Court is of the opinion that the appeal of
the Petitioner deserves to be heard without insisting upon the deposit of
Rs.12 lakhs. Since the issue has been pending for some time, the CGIT is
directed to decide the appeal at the earliest, on or before 30th April, 2021.
8. The petition along with all pending applications is disposed of in the
above terms.
PRATHIBA M. SINGH
JUDGE
DECEMBER 24, 2020/dk/T
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:24.12.2020 22:12
