Madras High Court
Thiagi Ramasamy Memorial Higher vs Employees Provident Fund ... on 21 June, 2023
W.P.No.16941 of 2020 &
W.M.P.No.21039 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 21.06.2023
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
W.P.No.16941 of 2020 &
W.M.P.No.21039 of 2020
Thiagi Ramasamy Memorial Higher
Secondary School,
rep. By its Head Master,
Varadarajapuram, Coimbatore – 641 015 ... Petitioner
Vs.
Employees Provident Fund Organisation,
rep. By the Assistant Provident Fund Commissioner,
Post Box No.3875,
Dr.Balasundaram Road,
Coimbatore – 641 018 ...Respondent
Writ Petition is filed under Article 226 of Constitution of India for
issuance of a Writ of Certiorarified Mandamus to call for the records of the
respondent relating to the impugned order dated 18.09.2020 bearing
nos.TN/R.O/CBE/PDC/CC17/72602/Interest/2020 and
TN/R.O/CBE/PDC/CC17/72602/14B Proceeding/Diary No.1815/2019 and
1/9
https://www.mhc.tn.gov.in/judis
W.P.No.16941 of 2020 &
W.M.P.No.21039 of 2020
quash the same and consequently direct the respondent to refund the sum
of Rs.8,18,445/- [Rupees eight lakhs eighteen thousand four hundred and
forty five only] to the petitioner school.
For Petitioner : Ms.M.Meenatchi for
Mr.P.Anbarasan
For Respondent : Mrs.R.Meenakshi
ORDER
The present Writ Petition has been filed for issuance of a Writ of
Certiorarified Mandamus to call for the records of the respondent relating to
the impugned order dated 18.09.2020 bearing
nos.TN/R.O/CBE/PDC/CC17/72602/Interest/2020 and
TN/R.O/CBE/PDC/CC17/72602/14B Proceeding/Diary No.1815/2019 and
quash the same and consequently direct the respondent to refund the sum
of Rs.8,18,445/- [Rupees eight lakhs eighteen thousand four hundred and
forty five only] to the petitioner school.
2. The brief facts of the case are as follows:-
(i) Earlier, the petitioner – School was functioned as a self-financed
Institution and the school had duly discharged all its liabilities towards the
respondent / organisation, after government took over the administration,
https://www.mhc.tn.gov.in/judis
W.P.No.16941 of 2020 &
W.M.P.No.21039 of 2020
due to non-availability of technical team and since the payment had to be
made through online mediums, the petitioner could not make payments in
time, though the contributions have been duly retained in the bank account
of the petitioner-school. While so, summons have been issued by the
respondent herein on 02.01.2020 by calling the petitioner either to pay the
penalty or to appear and be heard on 20.01.2020. However, the petitioner
could not appear on 20.01.2020 and on the adjourned hearing, the
authorised representative appeared before the respondent and sought for
time to verify the records and the matter was adjourned to 20.03.2020.
(ii) Subsequently, due to spread of covid, the matter was adjourned
to 20.04.2020 and thereafter, due to administrative reasons, the petitioner
could not appear on 04.09.2020 and sought for an opportunity vide
communication dated 07.09.2020, however, without taking into
consideration, the respondent passed an order dated 18.09.2020 directing
the petitioner to pay a sum of Rs.8,18,445/- towards liability under Section
7Q of the Employees Provident Fund and Miscellaneous Provisions Act,
1952 and on the same day the respondent passed an order imposing
damages for a sum of Rs.16,74,056/-. Though a representation has been
addressed by the petitioner on 29.09.2020 explaining the reasons for the
https://www.mhc.tn.gov.in/judis
W.P.No.16941 of 2020 &
W.M.P.No.21039 of 2020
delay, the same was not considered and therefore, the petitioner paid the
interest levied upon for the delay, i.e., Rs.8,18,445/- on 5 parts.
(iii) That apart, the petitioner has been diligent in the payment of
dues. However, due to the change in management and various follow-ups
difficulties, there have been minimal delays and the petitioner school has
been under the control of the special officer appointed by the Government
since 2018, therefore seeking to set aside the order passed by the
respondent, the petitioner has filed the present writ petition.
3. The learned counsel for the petitioner would submit that the
impugned orders dated 18.09.2020 of the respondent is arbitrary, violative
of the legal provisions and is not sustainable in law. The respondent ought
to have taken into consideration the rates chargeable as per the schemes
and ought not to have levied damages and interest in violation of such
rates.
4. The learned counsel for the petitioner also submits that the
respondent ought to have considered the request of the petitioner – School
to grant more time to be heard, especially during the covid situation and the
lack of manpower, therefore, pleaded to set aside the same.
https://www.mhc.tn.gov.in/judis
W.P.No.16941 of 2020 &
W.M.P.No.21039 of 2020
5. Per contra, the learned counsel for the respondent submitted that
the plea of the petitioner is not a valid justification for not remitting the PF
dues on time and non-availability of technical team is a filmsy reason for
not making payments through online medium in this digital era. The EPF
and MP Act, 1953 r/w the EPF Scheme, 1952 does not provide any
exception in making belated payments for such filmsy reasons. If the
contention of the petitioner is accepted, then everyone would cite such
'technical' reason to evade the payment of PF dues, which would defeat
the very object and purpose of the EPF and MP Act, 1952. The petitioner
was not at all regular in payment of PF dues and he is a habitual defaulter
and failed to remit the provident fund.
6. The learned counsel for the respondent also submits that no
relaxation was given to the establishments covered under EPF & MP Act
during the Covid lockdown and the same cannot be cited as a justification
because the petitioner agreed that the amount was available in the bank
account of the petitioner and non remittance of the same is gross
negligence and ignorance towards the statutory duty cast upon the
establishment under the EPF and MP Act. Further, sufficient opportunities
were given to the petitioner to present their case before passing the
https://www.mhc.tn.gov.in/judis
W.P.No.16941 of 2020 &
W.M.P.No.21039 of 2020
impugned order, but the representative of the petitioner attended the
hearing only once.
7. Lastly, the learned counsel for the respondent by relying upon the
Judgment of the Hon'ble Supreme Court submitted that the penal damages
under Section 14B were introduced as an element of deterrence and most
of the honest and law abiding employers are paying PF Contributions in
time. Further, if the contentions of the petitioner is accepted, the employees
will be put into irreparable loss and hardship and the establishment would
divert the hard earned money of the employees to third parties by putting
hurdles and legal dogmas, which will permanently seal the fate of poor
workers, thereby pleaded to dismiss the present Writ Petition.
8. In reply, the learned counsel for the petitioner submits that the
petitioner may be granted liberty to approach the appellate authority,
viz.,Central Government Industrial Tribunal, for which the learned counsel
appearing for the respondent has no objection.
9. Heard the learned counsel on either side and perused the
documents placed on record carefully.
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W.P.No.16941 of 2020 &
W.M.P.No.21039 of 2020
10. On going through the documents placed on record, it is seen that
the petitioner – School at the earlier point of time functioned as a self-
financed Institution and thereafter, the government took over the
administration. According to the petitioner, due to non-availability of
technical team and that the payment had to be made through online
medium, the petitioner could not make payment in time, whereas, it is the
contention of the learned counsel for the respondent that the said
submission is not a valid justification for not remitting the PF dues on time
and non-availability of technical team is a filmsy reason for not making
payments through online medium in this digital era and the petitioner was
not at all regular in payment of PF dues and he is a habitual defaulter and
failed to remit the provident fund.
11. Considering the facts and circumstances of the case and taking
note of the submission made by the learned counsel appearing for the
petitioner and the respondent as well, this Court is inclined to dispose of
the Writ Petition by directing the petitioner to approach the Central
Government Industrial Tribunal and inturn, the said Tribunal shall entertain
the petition / application to be filed by the petitioner without reference to
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W.P.No.16941 of 2020 &
W.M.P.No.21039 of 2020
limitation and conclude the proceedings on merits and in accordance with
law within a period of three months from the date of receipt of the
application / petition to be filed by the petitioner. Consequently, connected
miscellaneous petition is closed. No costs.
21.06.2023
Index : Yes/No
Internet : Yes/No
Speaking order / non speaking order
ssd
To
Employees Provident Fund Organisation,
rep. By the Assistant Provident Fund Commissioner,
Post Box No.3875,
Dr.Balasundaram Road,
Coimbatore – 641 018
https://www.mhc.tn.gov.in/judis
W.P.No.16941 of 2020 &
W.M.P.No.21039 of 2020
V.BHAVANI SUBBAROYAN, J.,
ssd
W.P.No.16941 of 2020 &
W.M.P.No.21039 of 2020
21.06.2023
https://www.mhc.tn.gov.in/judis
