1 19-wp-4670-2011.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4670 OF 2011 M/s. Shriram Sahakari Krishi Audyogik Oos Todni Vahatuk Ltd., .. Petitioner. V/s. The Assistant Provident Fund Commissioner, Kolhapur & Another .. Respondents. Mr. S.S.Pakale i/b. Mr. Kirankumar Phakade, for the Petitioner. None for the Respondent. CORAM : K.K.TATED, J. DATE : 30th JUNE, 2011. P.C.: Heard the learned counsel appearing on behalf of the Petitioner-Original Applicant. 2 By this Petition, under Articles 226 and 227 of the Constitution of India, Petitioner is challenging the orders dated 18th February, 2011 and 29th April, 2011, rejecting their application for waiver of pre deposit. 3 A few facts of the matter are as under:- 2 19-wp-4670-2011.sxw The Assistant Provident Fund Commissioner-Sub Regional Officer, Kolhapur issued notice under Section 14(b) r/w Section 7(9) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 to the Petitioner dated 25th September, 2009, directing Petitioner to appear before him on 8th January, 2010 with all relevant records for personal hearing and also directed them to pay the 7Q interest within a week and produce the receipted challan. Pursuant to the said notice, Shri Narayan K. Atteawade, General Manager of the Petitioner appeared on 15th January, 2010. On that date he did not submit any written representation in the matter. Therefore, matter was adjourned to 29th January, 2010. On the adjourned date also, no one appeared on behalf of the Petitioner. Thereafter, considering the papers on record, the Assistant Provident Fund Commissioner passed the order dated 5th April, 2010 under section 7(a) of the said Act, directing Petitioner to pay sum of Rs.26,01,502/- towards the damages as they failed to deposit the contribution of Provident Fund within time. 4 Being aggrieved by the order dated 5th April, 2010 passed by the Assistant Provident Fund Commissioner, Petitioner preferred an Appeal under Section 71 of the said Act on 25th September, 2010. Along with an appeal, Petitioner filed an application for stay of the order dated 5th April, 2010 and also for waiver of deposit. In the application for waiver of deposit, Petitioner stated that the order passed by the Assistant Provident Fund Commissioner under section 7(b) of the said Act is contrary to law 3 19-wp-4670-2011.sxw and same is liable to be set aside. He further stated that due to financial crises, it was not possible for Petitioner to deposit the entire amount as per order dated 5th April, 2010. The application was decided by the learned Presiding Officer of Employees Provident Fund Appellate Tribunal on 18th February, 2011 directing Petitioner to deposit 40% of the assessed amount within a period of four weeks. It is made clear in the said order that subject to such deposit, the Appeal will be admitted and the impugned order will be stayed. 5 Thereafter, the Petitioner filed another application before the Appellate Tribunal for modification of the order dated 18th February, 2011. The said application was also dismissed by the learned Presiding Officer, on 29th April, 2011 observing that the Petitioner has neither deposited 40% of the assessed amount as per order dated 18th February, 2011 nor applied for extension of time to deposit the amount. 6 Being aggrieved by the order dated 18th February, 2011 and 29th April, 2011, the Petitioner preferred the present Petition. 7 The learned counsel for the Petitioner submits that the impugned orders passed by the Appellate Authority are against justice, equity and good conscience and the same are liable to be set aside. He submits that the Tribunal failed to take into consideration that the Respondent No.1 passed the orders ex parte without giving any opportunity of hearing to the Petitioner. He further submits that the Appellate Authority 4 19-wp-4670-2011.sxw did not taken in to consideration the Petitioner’s financial difficulties and directed them to deposit 40% of the assessed amount. He submits that it is the duty of Appellate Authority to consider the financial difficulties of the Petitioner before passing any order on the application for waiver of pre -deposit. In support of his contention, he relied on the Judgment in the matter of Madathupatti Weavers Co-operative Production and Sales Society Ltd.,v/s. Regional Provident Fund Commissioner, Madurai & Others reported in 2003(3) L.L.N-674 and the Judgment in the matter of Small Gauges Ltd & Others v/s. V. P. Ramaiah reported in 2009(1) Mh.L.J.,-188. 8 I have gone through the impugned order passed by Appellate Authority, a copy of the application for waiver of pre-deposit dated 25th September, 2010, copy of memo of Appeal filed by the Petitioner before the Appellate Authority and both the authorities cited by the Petitioner. The authorities relied upon by the Petitioner's counsel are distinguishable on facts and do not support his contentions. The Appellate authority considered the decision of the Delhi High Court in the case of Excorts Ltd. V/s. RPFC reported in 2006(106) FLR 209 where in it is held that in case financial hardship has been established that should suffice for whole or partial waiver of pre-deposit subject to whatever condition the Appellate Authority may deem fit to impose, where financial hardship is not established or not pleaded it would still be open to the Applicant to justify 5 19-wp-4670-2011.sxw the waiver on other ground. The Appellate Authority observed that the Applicant did not file any document to establish that the establishment was not financially sound and yet the Appellate Authority reduced the pre- deposit amount to 40% of the assessed amount to be deposited within four weeks. The Applicant neither deposited the reduced amount within the stipulated time nor applied for extension of the time to deposit. Apex Court in the matter of Regional Provident Fund Commissioner v/s. S.D. College, Hoshiarpur and Others reported in (1997) 1 SCC – 241 held that Regional Provident Fund Commissioner can reduce but cannot totally waive the penalty. Para 12 reads thus:- “(12) - UNDER these circumstances, we do not think that there is any justification in the contention for waiver of the penalty imposed by the Regional Provident Fund Commissioner. As held earlier, there is no discretion left to the Commissioner to totally waive the penalty. What was left to his discretion is the rate at which it is to be computed by way of penalty. In this case, admittedly, 25% of the damages was computed as penalty. Since the Respondent had deposited the amount in fixed deposit and it earned 9% interest thereon, the balance amount is required to be deposited and the Respondent is directed to deposit the balance amount within six weeks from today.” 9 Under such circumstance, I see no reason to interfere with the impugned orders of the Appellate Authority. 6 19-wp-4670-2011.sxw 10 In the result, there is no substance in the Petition. Hence, it is dismissed. No order as to costs. (K.K.TATED, J.)