Ashok Kumar Chakravarty, J.
1. This writ petition is directed against the order (under Section 14B of the Employees' Provident Fund & Miscellaneous Provisions Act, 1952 dated December 13, 1993) passed by the Regional Provident Fund Commissioner, West Bengal, the Andaman & Nicobar Islands which was communicated to the petitioner by Memo No. A/045/WB/25896/Damage/50/35 dated January 25, 1994.
2. The petitioner Company's case is that it has its factory at Budge Budge Trunk Road, Post Office-Maheshtolla, District-24 Parganas (S). The Company was having business of manufacturing different types of goods. It was alleged that it wanted a separate Provident Code Number. The said authorities did not allot the same initially for its Budge Budge factory. Petitioner thereafter deposited a sum of Rs.41,987.30paise with the Provident Fund Authorities towards its provident fund dues from September, 1987 to July, 1988 and the said authorities was informed about the matter on August 31, 1988. On November 11, 1988 a separate code number being WB/25896 was allotted in the name of the petitioner. The petitioner further alleged that after the payment of above mentioned amount the petitioner was regularly depositing the provident fund contribution as required under the provisions of law. The petitioner's further case is that the initial delay in depositing the provident fund contribution from 1987 to 1989 was mainly due to the non-receipt of the code number. The petitioner was thereafter served with a notice under Section 14B of the Employees' Provident Funds & Miscellaneous Provisions Act, 1952 (hereinafter to be stated as 'the Act') and the Regional Provident Fund Commissioner without proper consideration of the said fact assessed such damage at Rs.33,419/- levied the same on the petitioner. The further case of the petitioner is that the employees were recruited from April 1, 1987, so they could not be brought under the purview of the Act with effect from December 1986. It was further alleged that the company is a sick unit and the case of the petitioner was referred to the Board of Industrial & Financial Reconstruction (in short BIFR), The proceeding was started by Case No.58/83. On October 26, 1993 the company was declared to be sick industrial company within the meaning of Section 3(1)(2) of the Sick Industrial Companies (Special Provisions) Act, 1985 [in short S.I.C.(S.P.) Act]. It was also alleged that the matter is now pending for final disposal before the Bench of the BIFR. It was accordingly claimed that the respondent authorities cannot take any step against the petitioner under Section 22(1) of the S.I.C. (S.P.) Act, 1985. The petitioner accordingly filed the writ application praying for rule in the nature of mandamus commanding the respondents to withdraw/cancel/rescind impugned notice.
3. In the affidavit-in-opposition it is alleged by the respondents that the Calcutta unit of the petitioner was started as a part and parcel of its principal establishment in Maharashtra and so though no separate code number could be issued initially still such code number was allotted subsequently to the petitioner for administrative reasons. The petitioner did not pay the provident fund contribution within due date. It was further alleged that the plea of sickness of the company, even if true, cannot absolve the petitioner from the responsibility of making the payment of statutory dues in time. It was also alleged that the respondent were not informed that the company was declared as a sick industrial company.
4. Mr. L.C. Bihani, learned Advocate appearing with Ms.Suchandra Mukherjee, submitted that since admittedly the code number was supplied to the petitioner company by the respondent authority on December 11, 1988 it could not be saddled with the responsibility of nonpayment of provident fund dues in time from December 1986 to December 1988.
5. The main thrust of Mr.Bihani's argument, however, is that by an order dated October 26, 1993 the Board of Industrial & Financial Reconstruction declared the company as a sick industrial company within the meaning of the Section 3(1)(o) of the S.I.C. (S.P.) Act and that a scheme referred to under Section 17 is pending in the matter. He further submitted that under Section 22(1) of the S,LC.(S.P.) Act no proceeding for execution, distress or the like against any of the properties of the Industrial Company shall lie except with the consent of the Board. He accordingly prayed for quashing the said proceeding as the impugned order was passed on December 13, 1993 while the scheme under Section 17(2) was under preparation and consideration at the relevant time.
6. Mr. Swapan Kr.Dutta, learned Advocate for the respondents submitted that the non-receipt of the code number cannot be a ground for deferred payment of provident fund dues as it was a part and parcel of the company registered at Maharashtra which had its code number. The subsequent allotment of code number therefore, cannot be a gound for non payment of the provident fund dues in time. Regarding the question of industry being sick it was contended that the respondent authorities having not been intimated about any proceeding before BIFR that the provision under Section 22(1) of the Sick Industrial Companies (Special Provisions) Act, shall not be a bar to the realisation of its statutory dues. It was further contended that the respondent authority having acted in terms of law under Section 14B of the Act that the order passed by the Regional Provident Fund Commissioner cannot be challenged.
7. Heard the submissions of the learned Advocates on both sides. Regarding the first point taken by the petitioner that the provident fund dues of the workers from December, 1986 to April 1989 amounting to Rs. 1,89,655.86 paise would not be deposited in time due to the failure by the Provident Fund Authorities to allotment a code number cannot be accepted as a valid ground in view of the fact that the principal company of which the petitioner company is only a branch was originally covered in the State of Maharashtra, the petitioner company could have deposited the amount in the code number of the principal establishment showing it as a branch of the same. Separate code number having been allotted for administrative convenience and on the prayer of the petitioner company that cannot be taken as a ground for not depositing the amount within time.
8. In the impugned order it appears that sum of Rs.33,419/- has been assessed as damages under Section 14B of the Employees' Provident Fund & Miscellaneous Provisions Act, 1952. Under the law such damage can be assessed upto 100% of the amount due. It appears from the impugned order that a submission was made on behalf of the petitioner company that the establishment was sick and the payment could not be made in time. It is a fact that the company was undergoing losses at the relevant time. As a matter of fact from the order dated October 26, 1993 it appears that the company was declared as a sick industrial company within the meaning of Section 3(l)(o) of the S.I.C.(S.P-) Act. It also appears from the said order that the BIFR considered that it is practicable for the company to make its net worth positive within the reasonable time and accordingly passed necessary order for the purpose under Section 17(2) of the Act. This aspect of the matter was not taken into consideration by the Provident Fund Authorities in passing the impugned order. Had this fact been pointed to the respondent authorities while assessing damages under Section 14B of the Act different findings might have been arrived at in the matter.
9. It was contended on behalf of the respondent authorities that the existence of the aforesaid order of BIFR was not brought into the notice of the respondent authorities at the time when the matter was heard and disposed of on December 13, 1993. There is no mention in the impugned order itself that this fact was brought to the notice of the authorities concerned. It was contended on behalf of the petitioner that it is immaterial whether the order of the BIFR was brought to the notice of the respondent authorities or not in view of the fact under Section 22(1) of the S.I.C(S.P) Act, 1986, no proceeding under any law for winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of the receiver in respect thereof shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate Authority. Reference was made in this connection to the decision of Gram Panchayat v. Vallabh Glass Works Ltd., reported in : [1990]1SCR966 where it was held that during the pendency of the proceedings under Sections 16 & 17 of S.I.C. (S.P.) Act, 1985 against a company, a proceeding to recover property tax under Section 129 of the Bombay Village Panchayat Act, (1958) shall not lie against the said company without consent of the BIFR, in view of Sub-section 1 of Section 22 of the Act. This decision, however, can have no application to a proceeding under Section 14B of the Employees Provident Funds & Miscellaneous Provisions Act. By the Amendment Act, 33 of 1988 the said provisions was amended by addition of a further proviso to the effect that the Central Board may reduce or waive damages levied under this section in relation to an establishment which is sick industrial company and in respect of which a scheme for rehabilitation has been sanctioned by the Board of Industrial & Financial Reconstruction established under Section 4 of the Sick Industrial Companies (Special Provisions) Act, 1985, subject to such terms and conditions as may be specified in the scheme. This amendment was made after the enforcement of Section 22 of S.I.C.(S.P.) Act. Since no such provision was present in Bombay Village Panchayat Act that the provision of Section 22(1) of the S.I.C. (S.P) Act was applied. The second proviso of Section 14B of the E.P.F. & M.P. Act having specifically laid down the procedure to be followed in relation to an establishment having similar position like the present, and the Central Board being vested with the power to waive or reduce the damage under the said provision, the Writ Court shall not and cannot interfere in exercise of such jurisdiction by the Central Board according to law. But the said jurisdiction of the Central Board having not been exercised properly in the instant case upon consideration of the fact that the petitioner establishment is a sick industrial company and in respect of which a scheme of rehabilitation has been sanctioned by the BIFR that this Court has no other alternative but to set aside the impugned order and refer the matter back to the appropriate authority for disposal of the matter by passing a reasoned order in the light of the observation made above within two months from the date of this order.
The writ petition is disposed of accordingly. There will be no order as to costs,
Let xerox copies of this order be handed over to the learned Advocates for the parties on usual undertakings.