IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 OP.No.23435 of 1999(M) ---------------------------- PETITIONER: -------------- THE REGIONAL PROVIDENT FUND COMMISSIONER, BHAVISHAY NIDHI BHAVAN, P.B. No.1806, ERANHIPALAM P.O., KOZHIKODE - 6. BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE. MR.THOMAS MATHEW NELLIMOOTTIL,SC, P.F. RESPONDENTS: ------------------ 1. THE EMPLOYEES' PROVIDENT FUND APPELLATE TRIBUNAL, 7TH FLOOR, SKYLARK BUILDING, NEHRU PLACE, NEW DELHI - 110 019. 2. MR. SHAJI K. ZACHARIA, POWER OF ATTORNEY, PODDAR PLANTATIONS, RIPPON ESTATE, MEPPADI P.O., WYNAD DISTRICT. BY MS.T.D.RAJALAKSHMI, ADVOCATE, FOR R2. MR.E.R.VENKATESWARAN, ADVOCATE, FOR R2. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No.23435/1999 Order on C.M.P.No.39055/1999 in OP.No.23435/1999 Closed. 23.03.2009 Sd/- S. SIRI JAGAN, JUDGE. A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF the ORDER IMPOSING DAMAGES, DTD. 21.12.1998. EXT. P2 : COPY OF the ORDER IMPOSING DAMAGES, DTD. 20.1.1999. EXT. P3 : COPY OF the ORDER OF THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp S. SIRI JAGAN, J. ------------------------------------ O.P.No. 23435 OF 1999 ---------------------------------------- Dated this the 23rd day of March, 2009 JUDGMENT The Regional Provident Fund Commissioner is the petitioner in this original petition. He is challenging Ext.P3 order of the Employees Provident Fund Appellate Tribunal, wherein Exts.P1 and P2 orders, whereby damages were imposed on the 2nd respondent in terms of Paragraph 32A of the Employees Provident Fund Scheme 1952 have been interfered with by the Tribunal reducing the damages payable by the 2nd respondent for delayed payment of contributions, under Section 14B of the Employees Provident Funds and Miscellaneous Provisions Act to 17% per annum on the amount of default. The contention of the petitioner is that in so far as the Scheme contemplates imposition of damages as provided under paragraph 32A of the Employees Provident Fund Scheme, the Tribunal cannot interfere with the damages imposed as per the rates fixed in paragraph 32A. 2. I have heard both parties. The question as to O.P.No.23435/99 2 whether the application of paragraph 32A is automatic and whether the question of imposition of damages has to be considered taking into account the circumstances leading to the delay in payment, like strike of employees, operational difficulties etc., have been considered by me in the decision of Indian Telephone Industries Ltd. V. Assistant Provident Fund Commissioner and Others [2006(3) KLJ 698], in which I had held that the imposition of damages is not automatic and paragraph 32A cannot be applied without considering other aspects of the matter, in so far as the imposition of damages is penal in nature and it cannot be imposed unless there is deliberate disobeyance of provisions of law and contumacious conduct on the part of the employer. In this case, from Ext.P3 I find that the Tribunal had considered every aspect of the case and had come to the conclusion that the proper damages to be imposed on the 2nd respondent is 70% per annum on the ground of default. I do not think that the discretion exercised by the Tribunal is in anyway unsustainable. Accordingly the original petition is dismissed. Sd/- S. SIRI JAGAN, JUDGE Acd O.P.No.23435/99 3 The figure “70%” occurring in the last paragraph of the judgment dated 23-3-2009 in O.P.No.23435/1999 is corrected as “17%” vide order dated 22/07/2009 in I.A.No.8216/2009. Sd/- Registrar (Judicial)