Orissa High Court
Tribal Development Co-Op vs E.P.Fund Appellate Tribunal And on 10 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.5806 of 2010
Tribal Development co-op. .... Petitioner
Corporation of Orissa Ltd.
Mr.Bhagaban Mohanty,Advocate
-versus-
E.P.Fund Appellate Tribunal and .... Opposite Parties
others
Mr.Piyus Ku.Mishra, Advocate
For Opp.Party No.3.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
10.10.2023
Order No.
01. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard Mr.B.Mohanty, learned counsel for the Petitioner and
Mr.P.K.Mishra, learned counsel for Opp.Party Nos. 2 & 3.
3. The Petitioner has filed this application seeking to quash the
order dated 29.08.2003 under Anexure-4 passed by the Regional
Provident Fund Commissioner, by which there is levy of damages
under Section 14-B and interest under Section 7Q of the Employees
Provident Funds and Miscellaneous Provisions Act, 1952 ( in short
"EPF and MP Act, 1952") on the Petitioner in P.D.Case No.248 of
2003-2004 and consequential appellate order dated 20.01.2010 in
Annexure-5 passed by the Employees Provident Fund Appellate
Tribunal in ATA No.810 (10) 2003, by which the appellate authority
confirmed the order passed by the Assistant Provident Fund
Commissioner imposing penalty of damages on the Petitioner under
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Section 14-B of the EPF and MP Act, 1952.
4. Mr.B.Mohanty, learned counsel for the Petitioner contended
that the Petitioner is not liable to pay the damages under section 14-B
of the EPF and MP Act, 1952 and seeks for waiver of the same,
which was not taken into consideration by the Regional Provident
Fund Commissioner in his order dated 29.08.2003 and directed to
pay the damages along with interest. Against the said order dated
29.08.2003 passed by the Regional Provident Fund Commissioner,
the Petitioner preferred appeal before the Provident Fund Appellate
Tribunal, who also confirmed the same on 20.01.2010, therefore, he
approached this Court by filing this application. It is contended that
though there is a delay in payment of the dues to the EPF authority,
that ipso facto cannot entitle the Opposite Party to calculate the
damages and interest thereon. On the relevant point of time, the
financial structure of the Petitioner was not in good condition.
Therefore, delay has been caused in depositing the amount before the
EPF authority. Therefore, the damages under Section 14-B and
interest under section 7Q of the EPF and MP Act, 1952 should be
quashed.
5. Mr.P.K.Mishra, learned counsel for Opposite Parties No.2 & 3
contended that the Petitioner admitted that delay in payment of
statutory dues under section 7-A of the EPF and MP Act, 1952 and
for that purpose damages have been charged under section 14-B of
the EPF and MP Act, 1952, the Petitioner is liable to pay the said
amount and as such, determination has been made by affording
opportunity of hearing to the Petitioner. More so, the order dated
29.08.2003 so passed by the Regional Provident Fund Commissioner
imposing damages and interest thereon and also the order dated
20.01.2010 passed by the appellate authority confirming the order
// 3 //
passed by the Regional Provident Fund Commissioner are justified.
Therefore, there is no illegality or irregularity in the orders itself,
which does not warrant interference of this Court at this stage.
6. Having heard Mr.B.Mohanty, learned counsel for the
Petitioner and Mr.P.K.Mishra, learned counsel for Opposite Parties
Nos. 2 & 3 and after going through the records, it appears that the
Petitioner is an establishment, to which the EPF and MP Act, 1952 is
applicable. In view of the applicability of the provident fund dues
under the EPF and MP Act 1952, the employer is liable to pay the
dues admissible in favour of its employees and as such, for the
periods 3/88 to 8/88, 11/97 to 2/98 and 3/99, the amount having not
been paid in due time, notice was issued to the employer by Opposite
Party to show cause why damages as envisaged under section 14-B
of the Act will not be recovered from the employer. But no reply was
given by the employer in response to such show cause notice.
Thereafter, opportunity of personal hearing was also afforded to the
employer by fixing 23.07.2003. Pursuant to which Shri Basudev
Mallick, Branch Manager appeared on behalf of the Corporation and
he also admitted that due to paucity of finance, delay in depositing
the statutory dues to the Opposite Parties and further it is contended
that the damages are leviable in view of Para-32 of the Scheme. But
realizing the difficulty of the Corporation, it claims that it should
waive by the Commissioner but the same has not been waived. As
such, for the delay in depositing the EPF dues, damages as due and
admissible has been levied on the Petitioner along with interest @
12% per annum, which the employees are liable to pay under section
7Q of the EPF and MP Act, 1952. Finally, after due adjudication by
giving opportunity of hearing, the Regional Provident Fund
Commissioner passed the order on 29.08.2003 directing the
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Petitioner to deposit the damages under section 14-B of the EPF and
MP Act, 1952 with interest under section 7Q of the Act. Against such
order, the Petitioner preferred appeal before the Provident Fund
Appellate Tribunal, but the Tribunal has come to a definite finding
that admittedly there was a delay in payment of EPF dues, for which
damages are leviable. More particularly, even if there is a financial
crunch that itself cannot give right to waive the damages to the
Opposite Parties. In view of the judgment of the apex Court in
Hindustan Times Ltd.vs. Union of India, 1998(2) SCC 242, the
Petitioner is liable to pay the damages under section 14-B of the Act
and interest thereon under section 7Q of the EPF and MP Act, 1952.
Thereby, this Court does not find any illegality or irregularity in both
the orders passed by the Assistant Provident Fund Commissioner,
which is confirmed by the Provident Fund Appellate Tribunal.
Consequentially, this Court does not find any merit in the writ
petition, accordingly, the same stands dismissed.
9. With the aforesaid observation, the writ application stands
disposed of.
10. Issue urgent certified copy of this order as per Rules.
RKS ( A.K. Mohapatra )
Judge
Signature Not Verified
Digitally Signed
Signed by: RAMESH KUMAR SINGH
Designation: Ex-A.R.-cum-Sr. Secretary
Reason: Authentication
Location: High Court of Orissa
Date: 16-Oct-2023 10:42:13
