Kerala High Court
Crescent Public High School vs Assistant Provident Fund ... on 31 August, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
WP(C) NO. 2179 OF 2020
PETITIONER:
CRESCENT PUBLIC HIGH SCHOOL
PANAMARAM, WAYANAD, PIN-670721,
REPRESENTED BY ITS GENERAL SECRETARY, ABDUL AZIZ K.
BY ADVS.
P.RAMAKRISHNAN
SMT.PREETHI RAMAKRISHNAN (P-212)
SRI.PRATAP ABRAHAM VARGHESE
RESPONDENTS:
1 ASSISTANT PROVIDENT FUND COMMISSIONER
SUB REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN,
ERAHIPALAM PO, KOZHIKODE-673006.
2 THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR
COURT,KARSHAKA ROAD, ERNAKULAM, KOCHI-682011.
BY ADV ABRAHAM P.MEACHINKARA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
31.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 2179 OF 2020
2
JUDGMENT
Order Ext.P3 dated 11.10.2019 rendered in Appeal No.30 of
2017 of the Tribunal is under challenge on behalf of the petitioner.
Petitioner establishment had employed less than 20 persons in its
initial years and therefore outside purview of the Employees
Provident Fund and Miscellaneous Provisions Act and thereafter it
was brought under the coverage with effect 01.08.2022. The
proceedings under Section 7 for not depositing the contributions of
the employees was initiated and amount assessed has been
deposited but for the lapses the respondent authorities initiated
the action by invoking the provisions of Section 14B and 7Q of the
EPF& MP Act, 1952 which is sine qua non. Though order passed
under Section 7Q is not appealable, but despite that it was
appealed along with the damages assessed under Section 14B to
the extent of Rs.4, 61,093/-. The appellate authority reduced the
damages to the extent of 70%. Noticing all these facts, this Court
while issuing the notice in this case on 27.01.2020 passed the
following order:
WP(C) NO. 2179 OF 2020
"Sri.Abraham P.Meachinkara, the learned counsel
appearing for the 1 respondent seeks time to get
instructions.
Heard Sri.T.C.Krishna, the learned counsel appearing
for the petitioner.
By separate orders, the petitioner has been directed to
pay a sum of Rs.4,61,093/- towards damages under Section
14B of Act 19 of 1952 and a sum of Rs.2,50,478/- towards
interest under Section 7Q of the Act. The main contention
advanced by the learned counsel is that challenging the order
passed under Section 7A of the Act, the petitioner herein had
preferred an appeal before the Tribunal and a stay was
granted. According to the learned counsel, if that be the
case, imposition of damages under Section 14B for the
belated remittance cannot be sustained. Placing reliance on a
decision of this Court in Regional Provident Fund
Commissioner v. Harrisons malayalam Ltd.¹, and that of
the Hon'ble Supreme Court in Assistant Provident Fund
Commissioner, EPFO and Another v. Management of
RSI Textiles India Pvt. Ltd. thr. its Director', it is urged
that presence or absence of mens rea and or actus reus
would be a determinative factor in imposing damages under
Section 14B and this aspect was not taken note of by the
Tribunal while passing the impugned order. Having regard to
the facts, I am of the view that the interest under Section 7Q
which has been assessed at Rs.2,50,478/- will have to be
remitted by the petitioner herein and I find no reason to
interfere with that part of the order. Insofar as the amount
assessed at Rs.4,61,093/- towards damages under Section
14B is concerned, I direct the petitioner herein to deposit
WP(C) NO. 2179 OF 2020
25% of the amount assessed as per Ext.P1 within a period of
three weeks from today. Coercive proceedings if any shall be
kept in abeyance for a period of four weeks.
Post after three weeks with the statement/objection, if
any."
2. Learned counsel appearing on behalf of the petitioner
submits that the amount assessed under Section 7Q and 25% of
the damages assessed have already been deposited. It was not
denied by the respondents. He submits that it is a school which is
a charitable organization depending on public contribution for
imparting service to society by offering educational facilities to the
children hailing from socially and economically backward classes
and the amount may be reduced to 50%.
3. I am afraid the aforementioned argument cannot be
accepted in the absence of any material on record to show that it
was/is not running for profit or as to whether there has been an
exemption under Section 12AA of the Income Tax Act or not. Thus,
I do not find the order of the appellate authority reducing the
damages to the extent of 75% to be unfair and unreasonable
rather it is justiciable.
4. At this stage, learned counsel for the petitioner requests
WP(C) NO. 2179 OF 2020
for payment of the balance amount in installments. Learned
counsel for the respondents says that 25% of Rs.4,61,093/- has
already been deposited. The balance amount is too paltry to be
deposited in instalments. Considering the predicament of the
petitioner and the Covid 19 pandemic, I accept the prayer of the
petitioner and direct to deposit the balance amount in four equal
monthly instalments commencing from 15.09.2022 to end by
14.12.2022. In case of default of one of the instalments
respondents will be at liberty to take action in accordance with
law.
Writ petition is disposed off.
Sd/-
AMIT RAWAL
JUDGE
nak
WP(C) NO. 2179 OF 2020
APPENDIX OF WP(C) 2179/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF ORDERS DATED 28.4.2017
ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2 TRUE COPY OF MEMORANDUM OF APPEAL
SUBMITTED BEFORE THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF ORDER DATED 11.10.2019 IN
APPEAL NO.30/2017 PASSED BY THE 2ND
RESPONDENT.
