IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3559 of 2010 1. Woodstock School Jail Road, Charitra Van, P.O. And P.S. Town Buxar, Distt.- Buxar 2. Rajay Jaiswal S/O Dr. Ramji Prasad Jaiswal Principal, Woodstock School, P.O. and P.S.- Town Buxar, Distt.- Buxar Versus 1. The Union Of India Through The Regional Provident Fund Commissioner Bihar Bhavishya Nidhi Bhawan, 'R' Block, Road No.6, Patna-800001 2. The Assistant Provident Fund Commissioner Patna Employees Provident Fund Organisation, Bhavishya Nidhi Bhawan, 'R' Block, Road No.6, Patna- 800001 -------------------- 04/ 29.08.2011 Heard Mr. Alok Kumar Sinha, learned counsel appearing on behalf of the petitioners and Mr. Ranjit Sinha, learned counsel appearing for the Employees Provident Fund Organization. The writ petition has been filed challenging the order dated 2.5.2008 / 5.5.2008 passed by the respondent no. 2, the Assistant Provident Fund Commissioner as contained in Annexure-1 to the writ petition. The said order has been passed by the Assistant Provident Fund Commissioner in purported exercise of power vested in him under Sections 14B and 7Q of the Employees‟ Provident Fund Miscellaneous Provision Act, 1952 (hereinafter referred to as the „Act‟), assessing damages and interest against the petitioner to the tune of Rs. 87,829/- and Rs. 28,489/- respectively for alleged delayed payment of contribution pertaining to the period 5/99 to 10/2000. The facts of the case in brief is that the petitioners herein are the school and the Principal of the said school situated at 2 Jail Road, Charitarban, Town and District-Buxar. Pursuant to an enquiry made by the Enforcement Officer of the respondent- Organization on 15.6.1999 the school in question was brought under the Act and whereafter a provident fund code was allotted to the petitioner. It is not in dispute that the petitioner has thereafter complied with the provisions of the Act. As the process of coverage consumed some time, there was some delay on the part of the petitioner in depositing the contribution relating to the period 5/1999 to 11/2000. A proceeding under Section 7A of the Act was initiated against the petitioner for non deposit of the dues for the period 5/1999 to 11/2000 and upon initiation of such proceedings the petitioner on his part deposited the employers share together with the other dues but made a request for waiver of the employees share of the contribution for the period in question, inter alia, on the grounds that they had not been able to make the deductions from the salary/wages of the employees concerned as the coverage letter itself had been received by the petitioners belatedly from the provident fund department. As the Employer shares for the period in question had admittedly been deposited by the petitioners, the Regional Provident Fund Commissioner (C & R), Bihar, Patna by his order dated 5.6.2002 passed in purported exercise of power vested under Section 7A of the Act, considering the request of the petitioners for waiver of the deposit of the employees contribution for the period 5/1999 to 11/2000, allowed the request and waived the deposit of the employee contribution for the said period. It so 3 appears that the Assistant Provident Fund Commissioner, Patna by ignoring the order dated 5.9.2002, initiated a proceeding under Section 14B and Section 7Q of the Act, holding the petitioners liable for damages and interest by reason of belated deposit of contribution. The said order dated 15.9.2004 was challenged by the writ petitioner by filing a writ petition giving rise to C.W.J.C. No. 15605 of 2004 and a Bench of this Court while disposing of the writ petition by order dated 20.3.2006 and remitting the matter for consideration by the Provident Fund Commissioner had the following observations to be made: “It appears from Annexure-3 to the writ petition that for the period May, 1999 to November, 2000, it has been held that the petitioner was not at default in making delay in depositing provident fund dues. If that be the finding, by the impugned order the petitioner could not be directed to pay damages for the said period, inasmuch as statutory damage too is payable only when there is a breach of an obligation and if the breach is not attributable to the person concern he cannot be saddled with damage.” The impugned order dated 2.5.2008 / 5.5.2008 has purportedly been passed in the light of the liberty granted by this Court in its order dated 20.3.2006 passed in C.W.J.C. No. 15605 of 2004. The Assistant Provident Fund Commissioner while passing the impugned order has again assessed the petitioners for damages under Section 14B for an amount of Rs. 87,829/- and to interest under Section 7Q to the tune of Rs. 28,489/-. The Assistant Provident Fund Commissioner by the impugned order has merely 4 reiterated his earlier views without taking notice either to the observations of this Court on the writ petition filed by the writ petitioner placed at Annexure-2 or to the order passed by the Regional Provident Fund Commissioner dated 5.6.2002 placed at Annexure-4 of the writ petition. In fact it is not even clear from the impugned order as to for what breach the said damages and interest has been imposed against the petitioners, as there is complete absence of the recitals. It is thus presumed that the damages and interest has been assessed towards the employees contribution because the employers contribution had admittedly been deposited by the petitioners. Before proceeding further it would be relevant to refer to the provisions of Section 7Q of the Act which enables the statutory authority to impose interest for belated payment of contribution. In a similar manner the provisions of Section 14(B) of the Act enables the statutory authority to recover damages in circumstances where the employer makes any default. That the petitioners do not fall in either of the categories is manifest from the order of the Regional Provident Fund Commissioner himself dated 5.6.2002 passed under Section 7A of the Act and placed at Annexure-4 of the writ petition, wherein in no uncertain terms he has held the petitioners not to be at fault in making contribution of the employees share and in fact has waived the deposit of the employees contribution for the period 5/99 to 11/2000. Thus where admittedly the employers share was deposited and the petitioner was 5 exempted from the payment of the employees contribution itself for the period in question there lies no occasion for the Assistant Provident Fund Commissioner, Patna to have assessed him towards damages and interest for a default which never occurred in the first place. Even otherwise regard being had to the finding of the Regional Provident Fund Commissioner in his order dated 5.6.2002 and also taken note of by this Court in its order dated 20.3.2006 as contained in Annexure-2, it is manifest that the order dated 2.5.2008 / 5.5.2008 impugned at Annexure-1 of the writ petition has been passed on complete misconception of law and misappreciation of the facts. That being the position, the writ petition is allowed. The impugned order dated 2.5.2008 / 5.5.2008 as contained in Annexure-1 of the writ petition is quashed and set aside. It has been brought to the notice of this Court that the respondent authorities in furtherance of the impugned order have recovered an amount of Rs. 1,16,318/- from the account of wife of the petitioner. As a consequence of the order aforesaid, the amount so recovered shall be refunded to the petitioner within a period of three months from the date of receipt/production of a copy of this order. S.Sb/- (Jyoti Saran, J.)