Jharkhand High Court
M/S Shree Shyam Coal Company vs The Regional Provident Fund ... on 4 November, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Writ Jurisdiction)
WP(C) No. 2117 of 2010
M/s Shree Shyam Coal Company ..... ...... Petitioner
Versus
The Regional Provident Fund Commissioner & Anr. .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE KAILASH PRASAD DEO
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For the Petitioner : Mr. Mahesh Tewari, Advocate
Mr. Ankur Anand, Advocate
For the Respondents : Mr. Yogendra Prasad,Advocate
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The matter is being taken up through Video Conferencing. Learned counsel for the parties
have no objection with it and submitted that audio and video qualities are good.
Order No.11/Dated: 04th November, 2022
Mr. Mahesh Tewari, learned counsel appearing on behalf of the
petitioner-Company assisted by Mr. Ankur Anand, learned counsel has
submitted, that the impugned demand made by the respondent authorities
have not been properly considered by the Employees' Provident Fund
Appellate Tribunal Camp, Court at Bhubaneswar in ATA No. 852(3) of 2003
while dismissing the application of the petitioner on 22.01.2010 as because
the Tribunal has not considered the judgments passed by the Hon'ble Division
Bench of Delhi High Court in the case of "Systems & Stamping v.
Employees' Provident Fund Appellate Tribunal" reported in (2008) SCC
OnLine Del 1469 decided on 14.01.2008 and the Tribunal has also not
considered that Section 7-Q of the Employees' Provident Fund &
Miscellaneous Provisions Act, 1952 has been introduced only on 01.07.1997,
as such, the interest calculated by the Employees' Provident Fund
Organization is itself bad in law, which has been taken care by the Hon'ble
Full Bench of Delhi High Court in the case of "Roma Henny Security
Services Pvt. Ltd. v. Central Board of Trustees, E.P.F. Organization
through Assistant P.F. Commissioner, Delhi (North)" in WP(C) No. 831 of
2012.
2. Learned counsel for the petitioner has thus submitted that in
such view of the matter and in view of the circular issued by the department
on 29.05.1990, there is a table with regard to revised rate of damage on delay
payment, interest chargeable under Section 7-Q of the Act and with respect to
the existing rate of damage but in the impugned demand, the Tribunal has
completely not taken note of that and thus the order of the Tribunal is bad in
law and the demand passed by the E.P.F.O. is also bad in law, as such the
demand may be quashed and the matter may be remitted to the respondents.
3. Mr. Yogendra Prasad, learned counsel appearing on behalf of the
respondents has submitted that the judgment of the Full Bench was
subsequent to the order passed by the Tribunal. It is further submitted that
under Section 7-L(4) of the Act, any order made by Tribunal finally disposing
the appeal shall not be questioned in any Court of law and thus the writ
petition is fit to be dismissed.
4. After hearing the parties and on perusal of the aforesaid
judgment, it appears that the demand was made with respect to delayed
payment from 15.11.1985 on two counts under Sections 7-Q and 14-B of the
Act. Apparently from the reading of the judgment passed in "Roma Henny
Security Services Pvt. Ltd." (supra) it has categorically been held that
Section 7-Q of the Act has been ammended with effect from 01.07.1997,
thus, the interest charged by E.P.F.O. on the delayed payment under Section
7-Q of the Act is not sustainable in the eyes of law prior to 01.07.1997.
5. So far the demand, which has been made under Section 14-B of
the Act i.e. power to recover damage is concerned, there is a Government
notification, which contains in office memorandum dated 29.05.1990. The
relevant provisions has been quoted in the case of "Systems & Stamping".
Paragraph Nos.4 and 5 of which read as under:
"4. The appellant admits defaults in payment of employers'
contribution of provident fund during the period December,
1989 to February, 2000. The period of default in each case
varies and we are not required to go into this aspect. The only
issue that arises for consideration is the quantum of damages
payable under section 14B of the Act in terms of Office
Memorandum dated 29-5-1990, the relevant portion of which
reads as under:--
"Moreover, now that in the recent amendment to the act, we
have already provided for the payment of simple interest at
12% per annum (Section 7Q) payable from the date the
amount has become due till the date it is actually paid, it
had become necessary to revise the rates of damages-and
to specify the same in the scheme. Thus, a proposal to
revise the rates of damages was accordingly placed before
the Central Board of Trustees and the Board in its 119th
meeting held on 4th April, 1989 approved the following
revised rates of damages with the condition that the
position with regard to the incidence of do fault following
the revision of the rates of damagos would be analysed
after six months from the date the new rates come into
force:
Period of Delay Revised Rates of Interestchargeable under Tota Existing rate of
Damages section 7Q l damages
less
but less flian
4 months
months but
less than 6
months
months
5. Counsel for the parties agree that, for the period upto 1st
July, 1997 the appellants will be liable to pay
penalty/damages under section 14B of the Act on the total
amount mentioned in column 3 under the heading Total. The
reason for the same is that though section 7Q was introduced
in the Act in 1988, it was made effective only from 1-7-1997."
6. Accordingly, the demand of the respondent is not sustainable in
the eyes of law and thus the order passed by the Tribunal is not in accordance
with law, as such, the same is hereby set-aside.
7. However, the Regional Provident Fund Commissioner,
Employees' Provident Fund Organization, Ranchi and the Assistant Provident
Fund Commissioner-cum-Recovery Officer, Employees' Provident Fund
Organization, Ranchi are hereby directed to issue fresh demand in view of
the office memorandum dated 29.05.1990 so far Section 14-B of the Act is
concerned and the interest under Section 7-Q of the Act so far on the demand
of delayed payment only from 01.07.1997, thus, the writ petition is allowed
and disposed of with aforesaid liberty.
8. So far the amount which has been attached by the Regional,
Provident Fund Commissioner, Employees' Provident Fund Organization
Ranchi annexed as Annexure-5 whereby the respondents have attached a
sumof Rs.1,92,411/- shall be subject to the revised rate.
9. The process must be completed within a period of 30 days from
the date of receipt/production of copy of this order.
(Kailash Prasad Deo, J.)
Madhav/-
