Nirmallyam Residency Hotel Pvt. ... vs The Registrar, Employees ...
2022 Latest Caselaw 9593 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MR. JUSTICE AMIT RAWAL
         THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
                         WP(C) NO. 18912 OF 2021
PETITIONER/S:

             NIRMALLYAM RESIDENCY HOTEL PVT. LTD.
             ALANKODE, MALAPPURAM, REPRESENTED BY ITS MANAGING
             DIRECTOR P. GOPINATHAN.

             BY ADVS.
             JOBY JACOB PULICKEKUDY
             ANIL GEORGE
             DAJISH JOHN
             HARIKRISHNAN P.



RESPONDENT/S:

     1       THE REGISTRAR, EMPLOYEES PROVIDENT FUND
             APPELLATE TRIBUNAL, ERNAKULAM, PIN - 682017.

     2       THE ASSISTANT PROVIDENT FUND COMMISSIONER EPFO
             SUB REGIONAL OFFICE, IRANJIPALAM P.O - 673006.,
             KOZHIKODE.

             BY ADV ABRAHAM P.MEACHINKARA




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 18912 OF 2021
                                              2

                                JUDGMENT

Challenge in the present writ petition is to the order Ext.P8 of the

appellate authority dated 6.5.2021 dismissing the appeal of the

petitioner preferred against the order of the assessing authority dated

5.8.2019 assessing damages under Section 14 B for the period March

2015 to January 2019 and remittances from 1.8.2015 to 30.4.2019 as

Rs.1,73,284/-. The petitioner is a company registered under the

Companies Act and running a business Hotel and started operation in

2013. It has 17 employees working in the establishment. The hotel

project was delayed by 5 years for which additional loan was taken and

the outstanding loan liability at the time of the assessment was Rs.7.33

crores. It is contended that a specific request was made for waiver or

reduction in the damages in view of the provisions provided under

Section 14B as well as Para 32 A of the Employees Provident Fund

Scheme but the respondent did not take into consideration such factum.

There was no mens rea or deliberate omission of making contribution.

The amount assessed in the proceedings under Section 7A has been

already remitted.

2. On the other hand, learned counsel appearing on behalf of

the respondent contended that owing to the non deposit of the

contribution the proceedings under Section 14B and 7Q are inevitable. WP(C) NO. 18912 OF 2021

No attenuating circumstances or any balance sheet has been placed on

record for for assessing the damages to the lesser amount than the one

prescribed under the Act.

I have heard the learned counsel for the parties and appraised the

paper book. The materials placed on record before the authority

reflected that petitioner establishment had 21 employees and therefore

was rightly covered under the provisions of the Act with effect from

November 2013. Even the Kerala Financial Corporation had also issued

notices reflecting the outstanding amount against the petitioner and a

letter to that effect for one time settlement is also on record. Petitioners

have already cleared the substantial loan and only outstanding is Rs.1.77

lakhs, thus, there is no financial constraints or difficulties with the

petitioner in seeking the reduction in the damages. I do not find any

illegality and perversity in the order under challenge. No ground for

interference is made out. Writ petition is dismissed. However I grant

the liberty to the petitioner to deposit the aforementioned amount in

three installments commencing from 1st September 2022. In case of

default of one installment, respondent would be at liberty to take action

in accordance with law.

Sd/-

sab                                               AMIT RAWAL

                                                      JUDGE
 WP(C) NO. 18912 OF 2021


                  APPENDIX OF WP(C) 18912/2021

PETITIONER EXHIBITS

Exhibit P1            THE TRUE COPY OF THE BAR LICENSE DATED
                      10.08.2018.

Exhibit P2            THE TRUE COPY OF THE PROCEEDINGS DATED
                      05.08.2019 ISSUED BY THE 2ND RESPONDENT.

Exhibit P3            THE TRUE COPY OF THE ORDER DATED 05.08.2019
                      NO. KR/KKD/28898/ENF (3)/7Q/2019.

Exhibit P4            THE TRUE COPY OF THE APPEAL FILED AGAINST
                      THE EXHIBIT P2 ORDER.

Exhibit P5            THE TRUE PHOTOCOPY OF THE PAYMENT DETAILS
                      PRODUCED BY THE PETITIONER.

Exhibit P6            THE TRUE PHOTOCOPY OF COUNTER AFFIDAVIT
                      FILED BY THE 2ND RESPONDENT.

Exhibit P7            THE TRUE COPY OF THE INTERIM ORDER DATED
                      18.10.2019 IN APPEAL NO. 369 OF 2019.

Exhibit P8            TRUE COPY OF THE ORDER DATED 06.05.2021 IN
                      APPEAL NO. 369 OF 2019.