1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE27H DAY OF JUNE, 2023 PRESENT THE HON'BLE MR JUSTICE K.SOMASHEKAR AND THE HON'BLE MR JUSTICE UMESH M ADIGA` WRIT APPEAL No.587 OF2016(L-PF) BETWEEN:
1. REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES' PROVIDENT FUND ORGANIZATION, NO.2, MARUTHI COMPLEX, 1ST A MAIN ROAD, HIG A SECTOR, NEAR SBI, YELAHANKA NEW TOWN, BANGALORE - 560 064.
2. RECOVERY OFFICER EMPLOYEES' PROVIDENT FUND ORGANIZATION, SUB-REGIONAL OFFICE, NO.2, MARUTHI COMPLEX, 1ST A MAIN ROAD, HIG A SECTOR, NEAR SBI, YELAHANKA NEW TOWN, BANGALORE-560 064. ...APPELLANTS (BY SMT.B.V. VIDYULATHA., ADVOCATE) AND: M/S. HMT LIMITED, A COMPANY REGISTERED UNDER THE INDIAN COMPANIES ACT, 1913, HAVING ITS REGISTERED OFFICE AT NO.59, HMT BHAVAN, BELLARY ROAD, BANGALORE-560 032, 2 REPTD. BY CHAIRMAN AND MANAGING DIRECTOR SRI.S.GIRISH KUMAR …..RESPONDENT (BY SRI. M.N. KUMAR., ADVOCATE) THIS WRIT APPEAL FILED UNDER SECTION4OF THE KARNATAKA HIGH COURT ACT, 1961 PRAYING TO SET ASIDE THE
ORDERPASSED IN THE WRIT PETITION NO.29597/2015 DATED2109/2015. THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED ON27H JUNE OF2023AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, UMESH M ADIGA J, DELIVERED THE FOLLOWING:
JUDGMENTRespondent in Writ Petition No.29597 of 2015 has filed this appeal challenging impugned order passed in the said Writ Petition dated 21.09.2015.
2. It was the case of Petitioner in the aforesaid Writ Petition that it is a Public Sector Enterprise under the administrative control of Department of Heavy Industries, Ministry of Heavy Industries and Public Enterprises with Government of India having shares with 93.69%. The Respondent was incorporated as “Hindustan Machine Tools Private Limited,” under the-then Companies Act of 1913 and 3 later on, its name was changed as “Hindustan Machine Tools” and subsequently it has been called as “HMT Limited.
3. The Respondent establishment was covered under the provisions of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952. It is an exempted establishment under Section 17 (1)(a) of the said Act. The Respondent has contented in the Writ Petition that during the period 1997 to 2001, the Respondent incurred heavy losses on account of loss incurred by the constituents of the Trust. Therefore, requisite contribution was not paid in time. Thereafter, respondent received sanction from the President of India for payment of Rs.250 Crores dues; and utilizing the portion of the said amount, Respondent had paid dues or arrears of Provident Fund (for short, PF) of its employees.
4. Due to delayed payment of PF, Appellants issued notice to Respondent under Section 14B of Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 (for the sake of brevity, hereinafter referred to as EPF Act of 4 1952) for the period from May 1997 to August 2001. The Representative of the Respondent appeared before the concerned authority and put forth their contention and also circumstances leading to delay in depositing of PF amount of its employees. The concerned officer of the Appellant had rejected contention of the Respondent and by order dated 02.01.2004 levied damages of Rs.3,68,30,901/- for the belated remittance of PF contribution. The said order passed by the competent authority was challenged by Respondent before this Court in Writ Petition No.7449 of 2004. This Court heard the said matter and by order dated 27.01.2005, the said Writ Petition was rejected, with the liberty to prefer an appeal before the Employee’s Provident Fund Appellate Tribunal (for short, EPFAT). The Respondent, thereafter filed an appeal before EPFAT in ATA No.157 (6) of 2004. The EPFAT heard the matter and by order dated 24.06.2010, dismissed the appeal and the said copy is at Annexure –M. 5
5. Respondent had challenged the said order in Writ Petition No.9883 of 2012 before this Court. This Court heard the matter and quashed the order passed by EPFAT dated 24.06.2010 in ATA No.157(6) 2004 and the matter was remanded to the EPFAT to reconsider the matter and pass suitable orders as per Annexure –N. The EPFAT, once again taken up the matter and heard both the parties and passed the orders dated 11.09.2014 and dismissed the contention of Respondent as per Annexure–P dated 11.09.2014. Consequently, the Appellant issued orders of attachment dated 11.06.2015 vide Annexure–Q and summons dated 06.07.2015 as per Annexure -R to the Writ Petition.
6. Respondent being aggrieved by the aforesaid orders of attachment and summons issued against it, filed Writ Petition No.29597 of 2015 before this Court seeking quashing of the orders of the EPFAT dated 11.09.2014 in ATA No.157(6) of 2004 along with the orders of attachment dated 17.06.2015 and summons dated 06.07.2015. The learned 6 Single Judge in W.P.No.29597 of 2015 (LPF) by impugned order dated 21.09.2015 allowed the petition in part and the order at Annexure–P dated 11.09.2014; order of Attachment at Annexure-Q dated 17.06.2015 and summons at Annexure- R dated 06.07.2015 were quashed. The Appellant herein was directed to re-quantify the damages payable, by confining the same at 15% of the total damages levied, which they have to pay within a period of one month from the date of communication of the fresh order. The same is challenged by the Appellants in the present Writ Appeal.
7. The Appellants herein has contended in the Writ Proceedings that financial loss of Respondent was not a ground for waiver of damages. Section 14B of EPF Act was meant to impose penalty on erring employers whereas payment of interest under Section 7Q of EPF Act compensate the loss sustained. Therefore, payment of interest cannot be a ground for waiver of damages under Section 14B of EPF Act. The Respondent herein has even failed to transfer 50% of the 7 contribution deducted from the wages of employees. Under these circumstances, the impugned order passed by the EPFAT was just and proper and does not call for interference.
8. We have heard the learned Advocates for both the parties.
9. The following points emerge for our determination:- 1. Whether rates of percentage of damages for arrears of EPF is justifiable?.
2. What order?.
10. The Learned advocate for appellant has vehemently contended that the direction of the learned Single Judge to re-quantify the damages payable by confining the orders of EPFAT at 15% of the total damages levied was without any basis. There were no reasons to reduce the said percentage from 37% to 15% by the learned Single Judge. As per Para No.32A and Schedule of the Table, which was 8 modified by the Corrigendum GSR of 451(E) dated 29.06.2009, the defaulted employer has to pay damages who was in arrears for a period of more than six months, the percentage of damages shall be 37%. Therefore, without any reasons, if the said damages have been varied, then it will cause administrative problem to the appellant-authority. The concerned officers may at their whims and fancies may go on charging the percentages, causing loss to the EPF authority. EPF Act is a Benevolent Legislation, to protect the interest of the employees, the said Act has been passed. The Respondent had deducted EPF from its employees, however did not credit the said amount to the PF Fund. If such defaults are considered sympathetically, then the main object of the Act would be defeated. Most of the concerns may not transfer the amount to the PF fund or credit the amount of their employees to the PF fund, under the guise that they were running under the financial losses and utilize the said amount for their business purpose. Time and again, it was held by the Hon’ble Supreme Court as well as this Court that 9 imposing of such damages is caution to the defaulting employer and warning to deposit the contribution in time. The said principle of law was laid down by the Hon’ble Supreme Court in the case of ORGANO CHEMICAL INDUSTRIES AND ANOTHER Vs. UNION OF INDIA AND OTHERS1. Therefore, the impugned order passed by the learned Single Judge reducing the percentage of damages at the rate of 15% from 37% is highly erroneous and calls for interference by this Court.
11. The learned Advocate for appellants has also relied on the judgment of the Hon’ble Supreme Court in the case HORTICULTURE EXPERIMENT STATION GONIKOPPAL, COORG Vs. THE REGIONAL PROVIDENT FUND ORGANIZATION2 wherein the Hon’ble Supreme Court has held that default or delay in 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 EPF Act, 1952 1(1979) 4 SCC5732Civil Appeal No.2136 of 2012 10 and mens rea or actus reus is not an essential element for imposing penalty/damages for breach of civil obligation/ liabilities. Therefore, there is no need to consider regarding the causes for delay in payment of EPF amount by the concerned employer. The said principle of law laid down by the Hon’ble Supreme Court is aptly applicable to the facts of the present case. Therefore, the authority cannot reduce the percentage of damages only on the pretext that Respondent had been suffered from heavy losses and hence, prayed to allow the appeal.
12. The learned Advocate for Respondent has vehemently contended that Respondent is a Public Sector undertaking. It had no intention to delay the payment of contribution to EPF. However, there was severe financial problem in the said Company, during the said period; To meet the losses, even the President of India has sanctioned Rs.250 Crores and after receipt of the amount, immediately the Respondent Company had paid required arrears to the EPF11fund of the employees. It shows bonafide of the Company. He has further contented that imposition of penalty in the form of interest under Section 7Q of EPF Act and imposing of damages under Section14B of the Act are different. The EPF Authority has imposed penalty in the form of interest under Section 7Q of the Act and Respondent had paid 12% of the interest on arrears of contribution to the EPF fund. Under Section 7Q of the Act, there is no discretion available to Appellants in imposing percentage of interest.
13. On plain reading of Section 14B, the concerned authority has discretionary powers to vary the percentage of damages to be imposed on the erring company. The term used in Section 14B of the Act is “may recover” and not “shall recover.” Moreover, the provision of the said Section also says that a reasonable opportunity shall be given to the employer of being heard before passing of orders, to impose the damages. It also indicates that on the basis of reasons assigned by the employer, the concerned authority has to 12 consider and thereafter, impose appropriate percentage of damages. In the next proviso, even the appropriate authority can waive the damages levied, if such establishment is declared as a “sick industry”. Hence vast power and discretion is given to the concerned authorities to impose damages.
14. The learned Single Judge, considering all these facts and also relying on the Judgments rendered by the Hon’ble Supreme Court, reduced the percentage of damages to be paid by the Respondent. There is no illegality in the said finding and the said finding is sustainable. The learned advocate for appellants has also contended that this Court as well as the Hon’ble Supreme Court in the catena of cases has held that it is the discretion power of the EPF Authorities to vary the percentage of damages to be imposed on the erring companies or employer. With these reasons, supports the impugned order passed by the learned Single Judge.
15. The crux of this matter is, whether the competent authority has discretion to reduce the percentage of damages 13 to be imposed, as per Para No.35 of EPF Act and whether the learned Single Judge is justified in reducing the percentage of damages from 37% to 15% and directing EPF Authority to recalculate the damages accordingly, is proper or justifiable. Other facts are more or less undisputed. Hence, there is no need to reconsider the said facts.
16. Whether the competent authority has jurisdiction to reduce the percentage of damages or not or whether levying of damages is a discretion of the concerned responsible officer or it is mandatory, is main question in the present case. To discuss the same, it is necessary to refer Section 14B of EPF Act of 1952, which reads as under:
14. . Power to recover damages: Where an employer makes default in the payment of any contribution to the Fund (the Family Fund or the Insurance Fund) or in the transfer of accumulations required to be transferred by him under sub-section (2) of section 15 (or sub-section (5) of section
17) or in the payment of any charges payable under any other provision of this Act or of (any Scheme or Insurance Scheme) or under any of the conditions 14 specified under section 17, the Central Provident Fund Commissioner or such other officer as may be authorised by the Central Government, by notification in the Official Gazette, in this behalf) may recover from the employer by way of penalty such damages, not exceeding the amount of arrears, as it may think fit to impose. Provided that before levying and recovering such damages, the employer shall be given a reasonable opportunity of being heard. Provided further that the Central Board may reduce or waive the damages levied under this section in relation to an establishment which is a sick industrial company and in respect of which a scheme for rehabilitation has been sanctioned by the Board for Industrial and Financial Reconstruction established under section 4 of the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986), subject to such terms and conditions as may be specified in the Scheme. 15 It is also necessary to refer Para No.32A and 32B of Employees Provident Fund Scheme, 1952 to consider the above said point:
32. . Recovery of damages for default in payment of any contribution:- (1) Where an employer makes default in the payment of any contribution to the fund, or in the transfer of accumulations required to be transferred by him under sub-section (2) of section 15 or sub- section (5) of section 17 of the Act or in the payment of any charges payable under any other provisions of the Act or Scheme or under any of the conditions specified under section 17 of the Act, the Central Provident Fund Commissioner or such officer as may be authorised by the Central Government, by notification in the Official Gazette in this behalf, may recover from the employer by way of penalty, damages at the rates given below:— For absence exceeding 6 hours but Rate of damages (% of not exceeding 12 hours arrears per annum) (a) Less than two months 17 (b) Two months and above but less 22 than four months 16 (c) Four months and above but less 27 than six months (d) Six months and above 37 (2) The damages shall be calculated to the nearest rupee, 50 paise or more to be counted as the nearest higher rupee and fraction of a rupee less than 50 paise to be ignored. 32B. Terms and conditions for reduction or waiver of damages: The Central Board may reduce or waive the damages levied under section 14B of the Act in relation to an establishment specified in the second proviso to section 14B, subject to the following terms and conditions, namely:— (a) in case of a change of management including transfer of the undertaking to workers' co- operative and in case of merger or amalgamation of the sick industrial company with any other industrial company, complete waiver of damages may be allowed; (b) in cases where the Board for Industrial and Financial Reconstruction, for reasons to be recorded in its schemes, in this behalf recommends, waiver of damages up to 100 per cent may be allowed; 17 (c) in other cases, depending on merits, reduction of damages up to 50 per cent may be allowed.
17. On plain reading of Section 14B, it is very clear that discretion is vested with officer referred in Section 14B to recover damages. It does not say that “damages shall be recovered”. On the contrary, it gives him a discretion to recover the damages and the word used is “may”. The first proviso to the said Section make it more clear that the said power of the concerned officer is discretionary. If he had no right to vary the percentage of damages, as contended by the learned advocate for the appellant, then there is no need of hearing of the parties or considering their case on merits and pass the orders. When there is discretion, then only the question arises about hearing of the parties and if the concerned officer finds that there are justifiable reasons for not imposing penalty, by way of damages, as provided under Section 32B of the Act, then he can pass suitable orders. 18
18. Even Para No.32A which deals with recovery of damages for default in payment of any contribution to the EPF, the term used is, the officer as may be authorized by the Central Government by Notification G.S.R. 689(E), dated 26th September, 2008 read with Corrigendum G.S.R. 451(E) dated 29th June, 2009 may recover from the employer by way of penalty/damages. In the said provision also, the concerned officer may recover from the employer by way of penalty or damages at the rate given in the Table. It also do not mandate the concerned officer or authorized person to recover damages as prescribed under the Table and it also gives a discretion to the concerned officer to recover the damages. If we read Para No.32B referred above, it makes more clear regarding waiver of damages as well as discretion to reduce the percentage of the damages. In 32(b)(c) gives powers and authority to the concerned officer to collect the 19 damages depending upon the merits and he may reduce the damages upto 50% of the rate of damages. Reading conjointly all these provisions clearly indicates that, the percentage of damages to be recovered in case of arrears of EPF is not mandatory or fixed. There is no need that the concerned officer has to collect the damages at the highest rate prescribed in the said Table. It is an outer limit to collect the damages and in between the said percentage, the concerned officer can calculate the damages, looking to the facts and circumstances of each case.
19. Section 7Q of the EPF Act 1952 also deals with payment of interest for default in depositing of the contribution of the employees. Under the said Section, the legislation has mandated the concerned officer to recover the interest at the rate of 12% and the concerned officer has no discretion and he shall collect the interest at the rate of 12% per annum and such percentage can be varied as per the Scheme of the Act and the said Sections also do not provide 20 that before collecting the interest, the concerned employer has to be heard. Section 7Q is also pertaining to delayed payment of contribution or default in payment of the contribution to the Employees Provident Fund.
20. The learned advocate for appellants has vehemently contended that if such vast discretionary power is given to the concerned officer, then there may be misuse of authority and they may impose according to their whims and fancies. Hence, law has not given the discretion to the authorities. The said contention is not tenable.
21. In the case of ORGANO CHEMICAL INDUSTRIES (supra), the Judgment rendered by the Hon’ble Supreme Court, Hon’ble Mr.Justice Sen A.P., held that:
6. Section 14B of the Act does not confer unguided or uncontrolled discretion upon the Regional Provident Fund Commissioner to impose such damages "as he may think fit", and, is , therefore, not violative of Article 14 of the Constitution. 21 It cannot be said that there are no guidelines provided for fixing the quantum of damages. The guidelines are provided in the Act and its various provisions, particularly in the word "damages" the liability for which under Section 14B arises on the "making of default". The word "damages" in Section 14B lays down sufficient guidelines for the Regional Provident Fund Commissioner to levy damages.
7. The power of Regional Provident Fund Commissioner to impose damages under section 14B is quasi-judicial function. It must be exercised after notice to the defaulter and after giving him a reasonable opportunity of being heard. The discretion to award damages could be exercised within the limits fixed by the statute, by taking into consideration various factors, namely, the number of defaults, the period of delay, the frequency of defaults and the amount involved. Having regard to the punitive nature of the power exercisable under Section 14B and the consequences that ensue there from, an order under Section 14B must be a "speaking order" containing the reasons in support of it.
22. Hon’ble Mr.Justice Krishna Ayer in the above case has held as under:
22. The contention that Section 14B confers unguided and uncontrolled discretion upon the Regional Provident Fund Commissioner to impose such damages 'as he may think fit' is, therefore, violative of Article 14 of the Constitution, cannot be accepted. Nor can it be accepted that there are no guide-lines provided for fixing the quantum of damages. The power of the Regional Provident fund Commissioner to impose damages under Section 14B is a quasi-judicial function. It must be exercised after notice to the defaulter and after giving him a reasonable opportunity of being heard. The discretion to award damages could be exercised within the limits fixed by the Statute. Having regard to the punitive nature of the power exercisable under Section 14B and the consequences that ensue there from, an order under Section 14B must be a 'speaking order' containing the reasons in support of it. The guide-lines are provided in the Act and its various provisions, particularly in the word 'damages' the liability for which under Section 14B arises on the 'making of default'. While fixing the amount of damages, the Regional Provident Fund Commissioner usually takes into consideration, as he has done here, various factors viz. the number of defaults, the period of delay, the frequency of defaults and the amounts involved. The word 'damages' in Section 23 14B lays down sufficient guidelines for him to levy damages.
23. In the above said Judgment, both the Hon’ble Judges of the Hon’ble Supreme Court have held that under Section 14B, the concerned officer has discretion while imposing the damages and it is not necessary that he shall impose the damages as prescribed in the Table mentioned in Para No.32A.
24. In the recent Judgment, rendered by the Allahabad High Court in the case of B.N.S.D.SHIKSHA NIKETHAN UCHCHATAR MADHYAMIK VIDYALAYA Vs. THE REGIONAL PROVIDENT FUND COMMISSIONER AND ANOTHER3 rendered on 24.03.2023, it is held that under Section 14B of the EPF Act, discretion power is given to the officer to impose the percentage of damages when the employer has defaulted in payment of contribution or there were arrears of contribution. The learned Judge of Allahabad High Court relying on the 3 Writ C. No.48699/1999 24 Judgment of the Hon’ble Supreme Court rendered in the different Judgments has held that under Section 14B of the Act, it is the discretion power of the concerned officer. The learned Judge has quoted the Judgment of Hon’ble Supreme Court in the case of HINDUSTAN TIMES LIMITED Vs. THE UNION OF INDIA AND OTHERS4, wherein it is held as under: The authority under Section 14-B has to apply his mind to the facts of the case and the reply to the show-cause notice and pass a reasoned order after following principles of natural justice and giving a reasonable opportunity of being heard; the Regional Provisional Fund Commissioner usually takes into consideration the number of defaults, the period of delay, the frequency of default and the amounts involved' default on the part of the employer based on plea of power-cut, financial problems relating to other indebtedness or the delay in realisation of amounts paid by the cheques or drafts, cannot be justifiable grounds for the employer to escape liability. 4 (1998) 2 SCC in page No.242 25 The learned Judge on the basis of various law rendered by the Hon’ble Supreme Court has held as under:
12. Further, under Section 14-B of EPF Act the authority concerned is empowered to impose a penalty up to a maximum limit, i.e., "such damages, not exceeding the amount of arrears, as may be specified in the Scheme" however, it is not mandatory that the competent authority must always impose the maximum cap of damages provided under the said section as a matter of routine or as a mechanical exercise. Rather, the authority concerned is expected to pass an order that would sub-serve the purpose of introduction of Section 14-B in the scheme of the EPF Act.
13. Therefore, it becomes obligatory on the concerned authority that once it makes up its mind to impose penalty it should also decide the quantum of damages which it seeks to impose on the erring party. Here too the competent authority is under an obligation to decide the quantum of damages only after consideration of proper facts and circumstances of the case. 26
25. The Hon’ble Supreme Court in the case of EMPLOYEES STATE INSURANCE CORPORATION VS. HMT LIMITED AND ANOTHER5 rendered judgment on 11.01.2008 it is held as under:
16. It was, however, opined that in certain situations, the employer can claim the benefit of 'irretrievable prejudice' in case a demand for damages is made after several years. In that case, this Court was concerned, inter alia, with a question in regard to the effect of levy of damages after a long time. The question which, inter alia, arose for consideration therein was as to whether suo moto revisional jurisdiction could be exercised by the revisional authority at any time it desires. The Court made a contributions made by the workmen in trust and other cases. It was in that situation opined supra. We are not concerned with such a situation herein.
17. A penal provision should be construed strictly. Only because a provision has been made for levy of penalty, the same by itself would not lead to the conclusion that penalty must be levied in all situations. Such an intention on the part of the 5 Civil Appeal No.340 of 2008 27 legislature is not decipherable from Section 85B of the Act. When a discretionary jurisdiction has been conferred on a statutory authority to levy penal damages by reason of an enabling provision, the same cannot be construed as imperative. Even otherwise, an endeavour should be made to construe such penal provisions as discretionary, under the statute is held to be mandatory in character.
20. We agree with the said view as also for the additional reason that the subordinate legislation cannot override the principal legislative provisions. The statute itself does not say that a penalty has to be levied only in the manner prescribed. It is also not a case where the authority is left with no discretion. The legislation does not provide that adjudication for the purpose of levy of penalty proceeding would be a mere formality or imposition of penalty as also computation of the quantum thereof became a foregone conclusion. Ordinarily, even such a provision would not be held to providing for mandatory imposition of penalty, if the proceeding is an adjudicatory one or compliance of the principles of natural justice is necessary there under. 28 The Hon’ble Supreme Court relied on its earlier Judgment in the case of Hindustan Times Limited Vs. Union of India (referred supra) and the said Judgment is also quoted the relevant portion about the principles rendered by the Lordship in the case of Hindustan Time Limited Vs. Union of India. Of course, the said judgment is pertaining to the Employee State Insurance Act. However, relevant portion of Section 14B of EPF Act, 1952 is also referred in the said judgment, which is parametria with Section 85B of the Employee State Insurance Act. In the above said Judgment, the Hon’ble Supreme Court held that even under Section 14B of EPF Act discretion power was given to commissioner and on the basis of various facts and circumstances, the concerned officer has to use the discretion and impose relevant percentage of damages as penalty.
26. The learned Advocate for appellant has relied on the Judgment in the case of Horticulture Experiment Station, Gonikoppalu, Coorg (referred supra). In the said Judgment, 29 rendered by the Hon’ble Supreme Court, is pertaining to the mensrea and held that any default or delay in payment of EPF contribution by employer under the Act is a sine-qua-non for imposition of levy of damages under Section 14B of the EPF Act,1952 and mens rea or actus reus is not an essential element for imposing penalty/damages for breach of civil obligation/liabilities. However, the principle of law laid down in the above said Judgment is not aptly applicable to the facts of the present case. In this case, the core question is, whether the concerned authority can reduce percentage of damages to be recovered as penalty from the concerned employer who has committed default in payment of the contribution. There is no dispute regarding imposing of the penalty or collecting of the damages. But the dispute is, whether the concerned authority has discretion to vary the percentage of damages other than prescribed under the Table or whether the concerned authority have to impose the damages as maximum amount mentioned in the Table. 30
27. The learned advocate for respondent has relied on some of the judgments rendered by this Court as well as the Hon’ble Supreme Court mentioned in the list annexed to the Writ Appeal. It is sufficient to mention that the principle of law laid down in some of the judgments in the above list are pertaining to discretion power of the concerned authority and in some of the judgments referred above, this Court has set aside the orders and remanded the matter back to the concerned officer, to reconsider their findings. There is no need to refer them and application of principles of law to the facts of present case.
28. The principle of law laid down in the above said judgments, rendered by the Hon’ble Supreme Court, it is held that it is very much clear as to how the damages has to be calculated by the concerned officer or how he has to exercise the discretion under Section 14B read with Para 32 and 32B of EPF Schemes. 31
29. The Respondent Company is a public undertaking formed by the Government of India. It suffered heavy losses and to compensate the said loss, the Government had sanctioned Rs.250 Crores and admittedly, from the said amount, the company had paid the arrears to EPF. It is not the case of the appellants that they were continuous defaulters even when the Company was running under the profits and it is not also their case that prior to 1997, there was regular default committed by the Company in transferring the contribution amount to the EPF Authorities. It is also not the case of appellants that with a malafide intention, the Company has not paid the contribution or transferred the amount of the contribution to the EPF of the employees. Considering all these facts and circumstances of the case, the learned Single Judge in the impugned order deemed it appropriate to direct the appellants to collect/re-calculate the damages at the rate 15%. The said finding is not arbitrary or perverse. It does not call for any interference. Accordingly, we answer above point and pass the following:
32.
ORDERi) The Writ Appeal is dismissed. ii) The impugned order passed in Writ Petition No.29597 of 2015 (LPF) dated 21.09.2015 is confirmed. Sd/- JUDGE Sd/- JUDGE DH