Andrew Yule and Co. Ltd. Vs. Regional Provident Fund Commissioner and ors. - Court Judgment

Excerpt:
- bhaskar bhattacharya, j.1. in this writ application an employer has challenged an order dated may 20, 1992 passed by the regional provident fund commissioner under section 14b of the 'employees' provident funds and miscellaneous provisions act, 1952 ('act').2. in the month of october, 1977 the petitioner was served with a notice dated september 21, 1977 issued by the respondent no. 1 under section 14b of the act directing the petitioner to show cause why damages will not be levied for delayed payment of contributions under the act accrued between june, 1966 and february, 1975 as shown in the statements annexed thereto.3. in paragraphs 9 and 10 of the writ application it has been alleged that the petitioner replied to the said notice and the respondent no. 1 after considering the representation decided not to take further action, but long thereafter on january 10, 1992 the respondent no. 1 fixed a date of hearing of the earlier notice dated september 21, 1977 and ultimately by the order impugned herein has imposed a damages of rs. 7,10,479/-.4. it appears from the order impugned that the petitioner admitted default in respect of part of the periods and disputed its liability to pay damages for delayed deposit in respect of a portion of the periods.5. the respondent no. 1 turned down all the contentions raised by the petitioner. however no document has been produced before this court showing that the petitioner replied to the show cause notice dated september 21, 1977 prior to 1992, or that the respondent no. 1 decided not to impose any damages being satisfied with the explanation. even in the adjournment applications the petitioner did not take such a plea.6. mr. dutta the learned counsel appearing on behalf of the petitioner has however raised a pure question of law relating to the jurisdiction of the respondent no. 1 to impose the damages to the tune of rs. 7,10,149/-. mr. dutta contends that the present case ought to have been disposed of in accordance with the amended provision of section 14b of the act read with paragraph 32-a of the employees' provident fund scheme, 1952 ('scheme') which has come into operation on september 1, 1991 notwithstanding the fact that the default occurred prior to that day. mr. dutta contends that if the table mentioned in paragraph 32-a of the scheme is applied, the damages assessed could not be arrived at. in other words, according to mr. dutta after september 1, 1991 the discretion to impose damages is no longer available to the respondent no. 1 and the respondent no. 1 must strictly comply with the rate mentioned in the table although the default was committed earlier. in support of such contention mr. dutta relies upon a decision of d.b. dutta, j in the case of atal tea company and anr. v. regional provident fund commissioner, 1998-iii-llj(suppl)-370 (cal) and also upon the principles laid down by the apex court in the case of 71 barai v. henry ah hoe and anr., reported in : 1983crilj164 .7. mr. gupta, the learned counsel appearing on behalf of the respondent no. 1 however tried to distinguish the aforesaid decision in the case of atal tea company (supra) from the present one by pointing out that in aforesaid case proceeding under section 14b of the act initiated after september 1, 1991 whereas in the present case the proceeding under section 14b started in september, 1977, long before the coming into : operation of the amendment of section 14b of the act. mr. gupta thus contends that the decision in the case of atal tea company and anr. (supra) has no application to the fact of the present case.8. after hearing the learned counsel for the parties and after going through the decisions mentioned above, although i am unable to convince myself to subscribe to the reason assigned by dutta, j, i however accept the conclusion ultimately arrived at by his lordship.9. after taking note of almost all the relevant decisions and after detail discussion on the question of retrospectivity of a statute, his lordship in paragraph 29 of the judgment came to the following conclusions:'the intention of the legislature in amending section 14b and introducing the relevant schemes in my view, was to curtail the discretionary power of the levying authority. the amendment thus affects both substantive right as well as procedural law and when the authority enforcing the right or liability which had already accrued prior to the amendment has been divested to a great extent of the discretionary power which he earlier had. as such, i have no hesitation to hold that in the instant case the levy of damages is to be governed by the amended provisions of section 14b read with para 32-a of the scheme referred to above.'10. i however propose to come to the same conclusion for the reasons set forth below:it is settled law that where an amendment affects vested rights, the amendment would operate prospectively unless, it is expressly made retrospective or its retrospective operation follows as a matter of necessary implication. it is open to a sovereign legislature to enact laws which have retrospective operation. the courts will not ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature. motiram v. suraj bhan, : [1960]2scr896 ; i.t.o v. m.c. ponnoose, : [1970]75itr174(sc) .11. the law is equally settled that just as a person accused of the commission of an offence has no right to trial by a particular court or to a particular procedure, the prosecutor has at the same time no right to insist upon that the accused be subjected to an enhanced punishment under a repealed act. whenever there is a repeal of an enactment, the consequences laid down in section 6 of the general clauses act whether it has been specifically mentioned in the repealing act or not, will follow, unless, as the section itself says, a different intention appears. in the case of a simple repeal, there is scarcely any room for expression of a contrary intention. but when the repeal is followed by fresh legislation on the same subject, the court would undoubtedly have to look to the provision of the new act, but only for the purpose of determining whether they indicate a different intention. when a later statute again describes an offence created by an earlier statute and imposes a different punishment or varies the procedure, the earlier statute is repealed by implication. the rule is however subject to the restriction imposed by article 20(1) of the constitution of india against ex post facto law providing for a greater punishment, t. barai v. henry ah hoe and anr. (supra).12. applying the aforesaid principles to the fact of the present case, it is apparent that by the amendment provision of section 14b of the act read with paragraph 32-a of the scheme with effect from september 1, 1991, the legislature has manifested its intention to divest the respondent no. 1, the concerned authority, of the power to impose penalty according to its discretion from the aforesaid day; on the other hand, it has mandated the respondent no. 1 to assess penalty in accordance with the chart shown in paragraph 32-a of the scheme notwithstanding the fact that the delay or default occurred earlier. no contrary intention to retain the earlier power to levy penalty up to 100% in case of pending proceeding is reflected from the amended provision. the position however would have been different if by the aforesaid amendment a higher amount of penalty was recommended than the previous one. in such a case, the petitioner would get the benefit of article 20(1) of the constitution of india.13. the respondent no. 1 therefore acted in excess of its authority in demanding a penalty of rs. 7,10,479/- which is in excess of the rate mentioned in paragraph 32-a of the scheme the said respondent lost its authority to impose such penalty by exercise of its discretion after september 1, 1991 even in pending proceeding.14. the order impugned is thus set aside. the respondent no. 1 is directed to pass fresh order by strictly following the provisions contained in paragraph 32-a of the scheme read with section 14b and other provisions of the act.15. the writ application is thus allowed to the extent indicated above.16. no costs.