Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE MONDAY, THE9H DAY OF SEPTEMBER201318TH BHADRA, 1935 WP(C).No. 14382 of 2013 (W) ---------------------------- PETITIONER(S): ------------------------ M/S.XAVIER'S RESIDENCY,A FIRM, Q.S.ROAD, KOLLAM, REPRESENTED BY ITS MANAGING PARTNER D. RAJ KUMAR BY ADVS.SRI.A.SUDHI VASUDEVAN SMT.K.PUSHPAVATHI SRI.JOSE JONES JOSEPH RESPONDENT(S): --------------------------- 1. ASST.PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANIZATION, SUB REGIONAL OFFICE, PONNAMMA CHANMBERS-I, PARAMESHWAR NAGAR, OPP.ARCHANA ARADHANA THEATRE, KOLLAM-691 001.
2. RECOVERY OFFICER, EMPLOYEES PROVIDENT FUND ORGANIZATION, SUB REGIONAL OFFICE, PONNAMMA CHANMBERS-I, PARAMESHWAR NAGAR, OPP.ARCHANA ARADHANA THEATRE, KOLLAM-691 001. R1 & R2 BY ADV.SRI.V.V.SURESH,SC,EPF.ORGANIZATION THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON0909-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WP(C).No. 14382 of 2013 (W) ------------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS: ---------------------------------------- EXT.P1:-A TRUE COPY OF THE ORDER
DTD. 7/3/2011 PASSED BY THE IST RESPONDENT. EXT.P2:-A TRUE COPY OF THE NOTICE OF DEMAND DTD65/2011 ISSUED BY THE2D RESPONDENT TO THE PETITIONER. EXT.P3:-A TRUE COPY OF THE CHALLAN DTD. 15/6/2011 ISSUED BY THE STATE BANK OF INDIA, KOLLAM BRANCH, EVIDENCING PAYMENT OF THE SAID AMOUNT RS155,998/- BY THE PETITIONER TO THE IST RESPONDENT. EXT.P4:-A TRUE COPY OF THE NOTICE DTD. 25/9/2012 ISSUED BY THE IST RESPONDENT TO THE PETITIONER ACCOMPNAINED BY THE STATEMENT. EXT.P5:-A TRUE COPY OF THE ORDER
DTD2311/2012 ISSUED BY THE IST RESPONDENT. EXT.P6:-A TRUE COPY OF THE NOTICE OF DEMAND DTD175/2013 ISSUED BY THE2D RESPONDENT TO THE PETITIONER. EXT.P7: A TRUE COPY OF THE DAILY PROCEEDINGS RECORDED ON1510/2012 IN RELATION TO THE PROCEEDINGS IN QUESTION BY THE1T RESPONDENT. RESPONDENT(S)' EXHIBITS: ----------------------------------------- N I L /TRUE COPY/ P.S.TOJUDGE Kss A.M. SHAFFIQUE,J.
========================== W.P.(C) NO. 14382 of 2013 ========================== Dated this the 9th day of September 2013 JUDGMENT
The petitioner challenges Ext.P5 an order passed by the Employees Provident Fund Organisation under Section 14B of the Employees Provident Fund & Miscellaneous Provisions Act, 1952,(hereinafter referred to as 'the Act'). The main contention urged by the petitioner is that the above order was passed in gross violation of the principles of natural justice and, therefore, it is required to be interfered with. The facts involved in the case would disclose that the order is passed on the allegation that there had been delay in payment of the contribution. A perusal of the order would disclose that sufficient opportunity that had been granted WPC143822013 2 to the petitioner in the matter relating to an enquiry under Section 14B of the Act. Apparently, an order under Section 14B is appealable under Section 7-O of the Act. Therefore, what is required to be considered is whether this Court can exercise jurisdiction under Article 226 of the Constitution of India, especially when there is an efficacious, alternative remedy available by way of appeal. It is stated in paragraph 6 of the impugned order as sunder: "6) xx xx xx A notice was therefore issued to the employer in exercise of the powers conferred under Sec.14B of the Act vide Notice No.KR/KLM/22266/PD/2012-13//4527 dated 25.09.2012 to show cause why damages as stipulated under Section 14B of the Act read with para 32(A) of the Scheme, 1952, paragraph 10A (1) of the Employees' Family Pension Scheme/paragraph (1) of the Employee Pension Scheme, 1995, para 8A(1) of the employees' Deposit Linked Insurance Scheme, 1976 shall not be recovered from him. Further, he was also advised to appear before the Assistant Provident Fund commissioner on 9.10.2012 either in person or through an authorised representative for affording an opportunity for hearing as envisaged under the first proviso to Section 14B of the Act. WPC143822013 3 Case called on 09.10.2012. Sri.T.S.Asokan, representative of the establishment appeared and filed a letter dated 09.10.2012 explaining about the circumstances leading to delay in remittance of dues for the period in question. In order to give another opportunity to the employer to clearly represent his case and also to pay away the amount of interest and damages, the hearing was finally posted to 15.10.2012. However on 15.10.2012 none attended the hearing and thereby not utilized the opportunity." 2. The main contention urged by the learned counsel for the petitioner is that the statement in Ext.P5 that none appeared on the hearing on 15.10.2012 is totally incorrect. The petitioner relies upon Ext.P7 which is the proceedings dated 15.10.2012 under Section 7Q read with Section 14B of the Act. In Ext.P7 it is stated that Sri Santhoshkumar, authorised representative appeared on behalf of the establishment on the hearing held on 15.10.2012. But in regard to the delay in payment after determination of dues under Section 7-A of the Act, he has nothing more to say. The matter was closed for orders. Though it is stated in WPC143822013 4 Ext.P5 that none appeared for the hearing and thereby not utilised the opportunity, the authority further proceeds to consider the reasons stated in the employer's letter dated 9.10.2012 for delay in payment of contribution due to various litigations in various forums. It is found that the said delay cannot be considered as a reason for late payment to avoid damages. The authorities had gone through the various litigations filed by the establishment in the matter and it is observed that an assessment has been made as per Section 7A order on 26.6.2008. A review was filed against the said order which was disposed of on 29.6.2009. The employer approached this Court and as per direction of this Court on 7.10.2009 in W.P.(C) No.24370/2009 the case has .been heard under Section 7B of the Act and the same was again rejected as without any merit. Again, the petitioner filed another writ petition before this Court and as per directions issued by this Court, the amount has been considerably reduced to WPC143822013 5 Rs.1,55,997/- vide order dated 7/3/2011. It is further stated that under Section 14-B of the Act, the liability to pay damages arise immediately on defaulted payment. The main contention urged by the petitioner is that the assessment has been made only on 7/3/2011 and the payment had been made on 15/6/2011. In the impugned order, damages in respect of the establishment was limited to 100% of the amount of arrears, i.e. Rs.1,55,997/-. It is therefore clear that the petitioner did not have much contentions in the matter except for the fact that there was delay in payment of dues on account of the circumstances mentioned in the letter dated 9.10.2012. Even though it is mentioned that none appeared on behalf of the petitioner on 15.10.2012, the authority had considered the representation dated 9.10.2012. That being the position, I do not think that there is any violation of principles of natural justice. In that view of the matter, I do not intend to interfere with the impugned order on the allegation of WPC143822013 6 violation of principles of natural justice.
3. Having found so, the remedy available to the petitioner is only to approach the appellate authority for claiming any reduction of the damages assessed by filing a proper appeal under Section 7-O of the Act. Learned counsel for the petitioner submits that time for filing appeal have already elapsed. As far as the period spent for prosecuting the writ petition is concerned, definitely since the petitioner had approached this Court, the period during which the writ petition is pending is liable to be excluded i.e. from 6/6/2013 till the judgment had been passed.
4. In the result, the writ petition is dismissed, however reserving the right of the petitioner to approach the appellate authority under Section 7-O of the Act. It is made clear that the period during which the writ petition was pending from 6.6.2013 till the date of the judgment shall be excluded from the for period of limitation for the purpose of filing the appeal. In the event of the petitioner filing the WPC143822013 7 appeal, the appellate authority shall take a lenient view in the matter relating to the condonation of delay. Sd/- A.M. SHAFFIQUE,JUDGE ks. True copy P.s. to Jjudge