Madras High Court

The Central Board Of Trustees vs M/S.Puliampatti Pacb Ltd on 6 February, 2025

                                                                         W.P.(MD) No.8290 of 2016


                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   DATED : 06.02.2025

                                                            CORAM:

                         THE HONOURABLE MR.JUSTICE MUMMINENI SUDHEER KUMAR


                                               W.P.(MD) No.8290 of 2016


                 The Central Board of Trustees
                 Employees Provident Fund Organisation
                 through its Regional Provident
                      Fund Commissioner
                 Regional Office
                 Lady Doak College Road
                 Chokkikulam
                 Madurai-2                                                              ... Petitioner

                                                             -vs-

                 1.M/s.Puliampatti PACB Ltd.,
                   Palani

                 2.The Presiding Officer
                    Employees' Provident
                      Fund Appellate Tribunal
                    New Delhi                                                           ... Respondents


                 PRAYER: Petition filed under Article 226 of the Constitution of India, to issue

                 a writ of certiorari calling for the records pertaining to the impugned order of

                 the      second      respondent   herein   in   his   proceedings    bearing       A.T.A.No.

                 574(13)2012, dated 19.08.2014 and set aside the same and confirm the order


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                                                                        W.P.(MD) No.8290 of 2016


                 passed by the Assistant Provident Fund Commissioner under Section 14B of

                 the Employees Provident Fund and Miscellaneous Provisions Act in his

                 proceedings No.TN/RO/MDU/4152/RO/Circle 13/PDC/LD dated 06.06.2012.



                                  For Petitioner    : Mr.S.Anwar Sameem

                                  For Respondents   : Mr.V.O.S.Kalaiselvam for R1
                                                      No appearance for R2


                                                          ORDER

This writ petition has been filed by the petitioner aggrieved by the

order dated 19.08.2014, passed by the Employees Provident Fund Appellate

Tribunal, New Delhi, in A.T.A.No.574(13)2012, whereby the learned Appellate

Tribunal interfered with the proceedings of the Employees' Provident Fund

Organisation, Madurai, bearing No.TN/RO/MDU/41592/RO/circle13/PDC/LD/2012,

dated 29.05.2012 and reduced the damages imposed on the second

respondent under Section 14B of the Employees Provident Fund and

Miscellaneous Provisions Act, 1952 (in short, “the Act, 1952”) to 25%.

2. A perusal of the impugned order, dated 19.08.2014, would

disclose that the learned Appellate Tribunal, having come to the conclusion

that the Assistant Provident Fund Commissioner, Madurai, has not applied

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his mind while imposing damages under Section 14B of the Act, 1952 and also

having come to the conclusion that there was no mens rea on the part of the

second respondent in delaying the remittance of the provident fund dues,

came to the conclusion that the second respondent cannot be made liable for

paying damages, but instead made him liable to compensate the loss caused

due to the delay in remittance of the provident fund dues and accordingly,

reduced the compensation to the tune of 25%.

3. Existence of mens rea is not a condition precedent for imposing

damages under Section 14B of the Act, 1952. This aspect of the matter is now

well settled and no more res integra. The Honourable Apex Court, in the case

of Horticulture Experiment Station vs. Provident Fund Organisation,

reported in (2022) 4 SCC 516, has decided the issue once for all. Paragraph

Nos.15 and 19 of the said decision read read as under:

“15.Taking note of the exposition of law on the subject, it is well- settled that mens rea or actus reus is not an essential element for imposing penalty or damages for breach of civil obligations and liabilities.

...

19. Taking note of three-Judge Bench judgment of this Court in Union of India v. Dharamendra Textile

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Processors [(2008) 13 SCC 369, which is indeed binding on us, we are of the considered view that any default or delay in the payment of EPF contribution by the employer under the Act is a sine qua non for imposition of levy of damages under Section 14B of the Act 1952 and mens rea or actus reus is not an essential element for imposing penalty/damages for breach of civil obligations/liabilities.

4. A Full Bench of this Court also having taken note of the above

said decision of the Honourable Apex Court, by a common Judgment dated

03.06.2024, passed in W.P.(MD) Nos.7339, 9688 of 2013, 2765 & 2782 of

2014, laid down certain guidelines in the matter of deciding the liability under

Section 14B of the Act, 1952. Paragraph No.39 of the said decision reads as

under:

39.Therefore, following the principles reiterated by the Hon'ble Supreme Court and different High Courts including our High Court in similar circumstances, this Court hold that Section 14-B of the Act is an enabling provision and it does not envisage any compulsion to levy damages in all cases, and is inclined to frame the following guidelines:-

(i) Before levying damages in terms of Section 14-

B of the Act, every authority is required to

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follow principles of natural justice. The particulars of the default, period, etc., and every adverse information that may be relied upon for levying damages should be indicated or furnished to the employer and a fair opportunity should be given to the employer to put forth his case in defence to the proposed action.

(ii) The authority, while exercising power under Section 14-B, shall keep in mind that the liability as per the table given in Para 32A of the Scheme, should be treated as upper limit within which damages can be levied for the delay in making contributions by the employer.

(iii) In appropriate cases where the employer is able to provide sufficient reasons or cause justifying the delay with verifiable materials, the authority is competent to waive or fix the quantum of damages less than what is shown in the table under Para 32A of the Scheme.

(iv) When an employer is not in a position to make payment in order to save the industry from closure or on account of protecting the industry or establishment from being put to face proceedings under the SARFAESI Act or other inevitable circumstances which compels the employer to divert the funds only to save the

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industry and the employees, there cannot be a levy of damages.

(v) The authority under the Act has to consider all the mitigating circumstances including financial difficulties projected by the employer and pass a reasoned order.

(vi) When the employer is able to produce all the documents or verifiable material within his reach to substantiate any mitigating circumstance, the authority exercising power under Section 14-B has to pass orders giving reasons, if he is unable to find truth or bona fides in the claim of the employer.

(vii) There shall be proper application of mind objectively on the merits of each case and in any case, the authority cannot resort to the arithmetical calculation or for levying damages as per Para 32A of the Scheme without considering the mitigating circumstances.

(viii) While assessing the quantum of damages, the past and present conduct of the employer also should be taken note of. For example, there can be levy of damages as per Para 32-A of EPF Scheme in every case when the employer is a chronic defaulter despite having surplus funds or found to have diverted funds.

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(ix) There may be variety of circumstances to which the employer is put to while managing an industrial establishment or a factory within the purview of the Act. The proviso to Section 14-B gives a special power to the Board to waive damages when a rehabilitation scheme is pending before the BIFR. There may be similar circumstances for the employer of any industry to save the industry from the clutches of private/public financial institutions and the employer might be facing proceedings under the SARFAESI Act. Whenever the employer is forced to make huge amounts by mobilizing funds from other resources to save the industry from closure or to avoid similar situations, such payment need not be considered as an act to avoid payment of provident fund dues.

(x) The delay in payments by profit making establishments has to be seriously viewed and every profit making employer is bound to pay the provident fund contributions promptly, unless there are strong reasons or circumstances that prevent the employer from making the payment on the due dates. If there is an element of willful negligence in payment of Provident Fund dues, the Assistant

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Provident Fund Commissioner or the competent authority can levy damages exercising his discretion.

(xi) Though mens rea is not an essential ingredient, there cannot be levy of damages at the maximum limit merely because there is a default. Before levying damages, there must be definite finding or reason, after considering the explanation or reasons given by the employer for the delay in payment of dues and other mitigating circumstances. The discretion vested with the Assistant Provident Fund Commissioner or the competent authority shall be exercised judiciously in tune with the settled principles of law and keeping in mind the interest of the employees concerned.”

5. In the light of the above, the order impugned in the present writ

petition cannot be sustained and the same is, accordingly, set aside and the

matter is required to be remitted back to the Appellate Tribunal for fresh

consideration by duly taking into consideration the decision of the Honourable

Apex Court in the case of Horticulture Experiment Station (cited supra) and

the guidelines laid down by the Full Bench of this Court, which are extracted

supra.

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6. At this juncture, it is brought to the notice of this Court that

the Appellate Tribunal, namely, Employees' Provident Fund Appellate Tribunal

has been abolished and the Central Government Industrial Tribunal, situated

at First Floor, B-Wing, No.26 Haddows Road, Shastri Bhawan, Chennai – 600

006, has been established for the purpose of deciding the appeals filed against

the orders passed under Section 14B of the Act, 1952.

7. In the light of the above, the matter is remanded back to the

Central Government Industrial Tribunal for deciding the matter in A.T.A.No.

574(13)2012 afresh by duly taking into consideration the decision of the

Honourable Apex Court in the case of Horticulture Experiment Station

(cited supra) and the guidelines laid down by the Full Bench of this Court,

which are extracted supra.

8. The Central Government Industrial Tribunal is further directed

to dispose of the said appeal as expeditiously as possible, at any rate, within a

period of six months from the date of receipt of a copy of this order.

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9. It is open to the either side to make available the relevant

records before the Central Government Industrial Tribunal by reconstruction

of the files, if necessary, for the expeditious disposal of the matter as directed

above.

10. Accordingly, this writ petition is disposed of. No costs.





                                                                        06.02.2025
                 NCC      : Yes / No
                 Index : Yes / No
                 Internet : Yes / No

                 krk

                 Note to Office: Mark a copy of this
                 order to the     Central Government

Industrial Tribunal, situated at First Floor, B-Wing, No.26 Haddows Road, Shastri Bhawan, Chennai – 600 006.

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