IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.06.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.17518 to 17521, 21135 to 21144, 22081 to 22085, 22096 to 22101, 22805 and 22806 of 2010, 31365 of 2004, 4616 of 2005, 24877 and 24878 of 2009, 16840 of 2010, 7564 of 2011, 12155, 15729, 12156, 16838 of 2010 and 20938 of 2004 and Connected Miscellaneous Petitions. The Assistant Provident Fund Commissioner, Employees Provident Fund Organisation, Dr.Balasundaram Road, Coimbatore ... Petitioner in W.P.Nos.17518 to 17521/2010 W.P.Nos.21135 to 21144/2010 W.P.Nos.22081 to 22085/2010 W.P.Nos.22096 to 22101/2010 W.P.Nos.22805 and 22806/2010 The Sri Venkatesa Mills Ltd., Rep. By its Chairman V.Genguswamy ... Petitioner in W.P.No.31365/2004 and W.P.No.4616/2005 The Narasimha Mills Limited Rep by its Managing Director ... Petitioner in W.P.Nos.24877 and 24878/2009 M/s.Bhavani Mills Ltd., Rep. By its Managing Director ... Petitioner in W.P.No.16840/2010 and W.P.No.7564/2011 M/s.Silver Gloud Tea Factory, Rep. By its Authorised Signatory P.S.N.Natarajan. ... Petitioner in W.P.Nos.12155/2010 1st petitioner in WP.15729/10 M/s.Silver Gloud Tea Estate, Rep. By its Authorised Signatory Mr.P.S.N.Natarajan https://hcservices.ecourts.gov.in/hcservices/ M/s.Barwood Estate, Rep. By its Authorised Signatory Mr.P.S.N.Natarajan M/s.Silver Gloud Coffee Estate, Rep. By its Authorised Signatory Mr.P.S.N.Natarajan M/s.Chickmoyar Coffee Estate, Rep. By its Authorised Signatory Mr.P.S.N.Natarajan ... Petitioners 2 to 5 in W.P.No.15729/2010 M/.s.Chikmoyar Coffee Estate, Rep. By its Authorised Signatory ... Petitioner in W.P.No.12156/2010 Sri Ramalinga Choodambikai Mills Ltd., Rep. By its Director. ... Petitioner in W.P.No.16838/2010 Coimbatore District Mill Workers Union, Rep. By its District General Secretary, M.Arumugham ... Petitioner in W.P.No.20938/2004 Vs. 1.Employees Provident Fund Appellate Tribunal (Ministry of Labour and Employment, Government of India) Scope Minor, Core II,4th Floor, Lakshmi Nagar District Centre, Lakshmi Nagar, New Delhi – 110 092. ...1st Respondent in W.P.Nos.17518 to 17521/2010 W.P.Nos.21135 to 21144/2010 W.P.Nos.22081 to 22085/2010 W.P.Nos.22096 to 22101/2010 W.P.Nos.22805 and 22806/2010 ... 2nd respondent in W.P.Nos.24877 and 24878/2009 ...1st respondent in W.P.No.7564/2011, W.P.No.16838/2010 2.M/s.Bhavani Mills Ltd., Rep. By its Managing Director, Shri Ananda Kumar Pollachi Road, Industrial Estate (P.O) Coimbatore. ...2nd respondent in W.P.No.17518/2010 https://hcservices.ecourts.gov.in/hcservices/ 3.M/s.Narasimha Mills P Ltd., Rep by its Managing Director ...2nd respondent in W.P.No.17519/2010 4.M/s.Bhavani Mills Ltd., Rep. By its Managing Director, Shri Ananda Kumar ...2nd respondent in W.P.No.17520/2010 5.M/s.Indian Express Publication(Madurai)Ltd., Coimbatore. ...2nd respondent in W.P.No.17521/2010 6.M/s.Kwality Spinning Mills Ltd., Pollachi. ...2nd respondent in W.P.No.21135/2010 7.M/s.Sri Venkatesa Mills Ltd., Udamalpet. ...2nd respondent in W.P.No.21136/2010 8.M/s.The Coimbatore Pioneer Mills Ltd., Coimbatore. ...2nd respondent in W.P.No.21137/2010 9.M/s.Sri Ramalinga Choodambikai Mills Ltd., Rep. By its Director A.Rajagopal ...2nd respondent in W.P.No.21138/2010 10.M/s.Venkata Ganga Textiles, Annur, Coimbatore. ...2nd respondent in W.P.No.21139/2010 11.M/s.Sujay Spinner, Rep. By its Managing Partner ...2nd respondent in Coimbatore. W.P.No.21140/2010 12.M/s.The Dhanalakshmi Mills Ltd., Tirupur. ...2nd respondent in W.P.No.21141/2010 13.M/s.The Coimbatore Pioneer Mills Ltd., Peelamdedu, Coimbatore. ...2nd respondent in W.P.No.21142/2010 14.M/s.Sri Balasubramania Mills Ltd., Uppllipalayam, Coimbatore. ...2nd respondent in W.P.No.21143/2010 15.M/s.Indian Express Publication (Madurai) Ltd.,Coimbatore. ...2nd respondent in W.P.No.21144/2010 https://hcservices.ecourts.gov.in/hcservices/ 16.M/s.Bar Wood Coffee Estate, Rep. By its Managing Director, Gudalur. ...2nd respondent in W.P.No.22081/2010 17.M/s.Bar Wood Coffee Estate, Rep. By its Managing Director, Gudalur. ...2nd respondent in W.P.No.22082/2010 18.M/s.Chikmoyar Coffee Estate, Rep. By its Managing Director. ...2nd respondent in Gudalur. W.P.No.22083/2010 19.M/s.Chikmoyar Coffee Estate, Rep. By its Managing Director. Gudalur. ...2nd respondent in W.P.No.22084/2010 20.M/s.Chikmoyar Coffee Estate, Rep. By its Managing Director. Gudalur. ...2nd respondent in W.P.No.22085/2010 21.M/s.Silver Cloud Coffee Estate, Rep. By its Managing Director. Gudalur. ...2nd respondent in W.P.No.22096/2010 22.M/s.Silver Cloud Coffee Estate, Rep. By its Managing Director. Gudalur. ...2nd respondent in W.P.No.22097/2010 23.M/s.Silver Cloud Coffee Estate, Rep. By its Managing Director. Gudalur. ...2nd respondent in W.P.No.22098/2010 24.M/s.Silver Cloud Coffee Estate, Rep. By its Managing Director. Gudalur. ...2nd respondent in W.P.No.22099/2010 25.M/s.Silver Cloud Coffee Estate, Rep. By its Managing Director. Gudalur. ...2nd respondent in W.P.No.22100/2010 26.M/s.Silver Cloud Coffee Estate, Rep. By its Managing Director. ...2nd respondent in Gudalur. W.P.No.22101/2010 https://hcservices.ecourts.gov.in/hcservices/ 27.M/s.Silver Cloud Coffee Estate, Rep. By its Managing Director. ...2nd respondent in Gudalur. W.P.No.22805/2010 28.M/s.Silver Cloud Coffee Estate, Rep. By its Managing Director. Gudalur. ...2nd respondent in W.P.No.22806/2010 29.The Recovery Officer/ Assistant Provident Fund Commissioner, (Special Damages Cell) Enforcement Employees Provident Fund Organisation, Sub-Regional office, Bhavishyanidhi Bhavan Post Box NO.3875, Dr.Balasundaram Road, Coimbatore – 641 018. ...Respondent in W.P.No.31365/2004, 2nd respondent in W.P.No.4616/2005, W.P.Nos.12155 and 12156/2010 3rd respondent in W.P.No.7564/2011 30.The Assistant Provident Fund Commissioner, Employees Provident Fund Organisation, Sub-Regional Office, Bhavishyanidhi Bhavan Post Box No.3875, Dr.Balasundaram Road, Coimbatore – 641 018. ...1st respondent in W.P.No.4616/2005 ...1st Respondent in W.P.No.16840/2010, 2nd respondent in W.P.No.7564/2011, W.P.No.16838/2010 31.The Regional Provident Fund Commissioner, Coimbatore – 641 018. ...1st respondent in W.P.Nos.24877 and 24878/2009, 1st W.P.Nos.12155 and 12156/2010, W.P.No.15729/2010, 3rd respondent in W.P.No.16838/2010 32.Union of India represented by Ministry of Industry, Udyog Bhavan, New Delhi – 110 011. 33.Appellate Authority for Industrial and Financial Reconstruction, Government of India, 10th Floor, Jeevan Prakash, 25, Kasturba Gandhi Marg, https://hcservices.ecourts.gov.in/hcservices/ New Delhi – 110 001. 34.Board for Industrial and financial Reconstruction, 22nd Floor, Jawahar Vyapar Bhavan, No.1, Tolstoy Marg, New Delhi – 700 001. 35.Industrial Investment Bank of India, No.19, Netaji Subhas Road, Calcutta, 700 001. 36.Dhanalakshmi Mills Limited, 130, B.S.Sundaram Road, Tirupur – 641 601. 37.State Bank of India, Central Office, Post Box No.12, Madame Gama Road, Mumbai – 400 021. 38.Industrial Development Bank of India, IDBI Tower, Cuffe parade, Mumbai – 400 021. 39.The Secretary to Government of Tamil Nadu, Industries Department, Fort St.George, Chennai – 600 009. 40.Central Provident Fund Commissioner, HUDCO Vishala 14, Bhikaji Cama Place, New Delhi 110 066. 41.Employees State Insurance Corporation, ESIC Building, Kotla Road, Behind Foreign Post Office, New Delhi. ...Respondents 1 to 10 in W.P.No.20938/2004 W.P.No.17518/2010 Writ Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari, to call for the records of the proceedings of the first respondent in ATA No.63(13)/2008 and quash the order dt.22.4.2009 passed there-under. WP.Nos.17519 to 17521, 21135 to 21144, 22081 to 22085, 22096 to 22101, 22805 & 22806/10:- Writ of Certiorari to call for the records of the 1st respondent ln ATA.Nos.531(13)/08, 552/(13)/08, 861(13)/05, 119(13)/07, 51(13)/07, 348(13)/07, 740(13)/03, 520 (13)/09, 21(13)/07, 79(13)/06, 26(13)/08, 22(13)/07, 489(15)/06, 734(13)/04, 514(13)/08, 594(13)/03, 735(13)/04, 517(13)08, 518 (13)/08, 917(13)/04, 916(13)/04, 596(13)/03, 918(13)/04, 515(13)/ 08, 516(13)/08, 595(13)/03 respectively and quash the order dated https://hcservices.ecourts.gov.in/hcservices/ 24.9.2009, 22.4.2009, 17.4.2009, 21.5.2009, 3.9.2009, 22.5.2009, 10.7.2009, 24.9.2009, 10.7.2009, 22.4.2009, 22.5.2009, 10.7.2009, 17.4.2009 10.7.2009, 10.7.2009, 10.7.2009, 10.7.2009, 10.7.2009, 13.7.2009, 13.7.2009, 13.7.2009, 13.7.2009, 13.7.2009 13.7.2009 13.7.2009 13.7.2009 passed there under. W.P.No.31365/2004 Writ Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified mandamus, to call for the entire records of the respondent in his proceedings No.TN/CBE/PDC/51/ Proceedings/2004 dated 15.10.2004 and quash the same and consequently forbear the respondent from recovering the damages from the petitioner. W.P.No.4616/2005 Writ Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified mandamus, to call for the entire records of the 1st respondent in his proceedings in TN/CB/PDC/51/2005 dated 27.1.2005 and the proceedings of the second respondent in TN/Recy/Cbe/PDC/51/2005 dated 27.01.2005 and quash the same and consequently forbear the Respondents from recovering the interest on penal damages from the petitioner. W.P.Nos.24877 and 24878 of 2009 Writ Petitions under Article 226 of the Constitution of India praying for a Writ of Certiorari, calling for the records of the respondents in the order dated 24.9.2009 in Appeal No.531(13)/2009 confirming the interest and restricting the damages by 0.5% p.a. Of the arrears of contribution respectively as demanded by the first respondent vide its proceedings in No.TN/CBE/RO/3427/PDC/CC 13/2009 and PDC/TN/CBE/Circle/13/TN/3427/2009 respectively dated 7.7.2009 and to quash the same. W.P.No.16840/2010 Writ Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari, to call for the records and quash the letter bearing reference No.TN/CBE/RO/ Recovery/1166/2010 dt.2.7.2010 on the file of the respondent Assistant PF Commissioner Employees Provident Fund Organization, Sub-Regional Office, Coimbatore. W.P.No.7564/2011 Writ Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari, to call for the records and quash the Common Order dt.22.4.2009 passed in A.T.A.63(13) of 2008, A.T.A.552(13) of 2008 and confirmed by order dt.11.8.2010 by the 1st respondent Employees Provident Fund Appellate Tribunal New Delhi and consequently forbear the 2nd respondent The Asst. Provident Fund Commissioner Employees Provident Fund Organisation, Sub-Regional Office, Dr.Balasundaram Road Coimbatore-641 018, from initiating any coercive proceedings for recovery of damages from the petitioner establishment pursuant to the aforesaid dt.11.8.2010. https://hcservices.ecourts.gov.in/hcservices/ W.P.Nos.12155 and 12156/2010 Writ Petitions under Article 226 of the Constitution of India praying for a Writ of Certiorari, Calling for the records in the proceedings of the 2nd respondent herein made in Ref.E.P.F.C.P1.No.CB/CBE/896 and 4283/ENF/Circle-18 RRC No.10000182 and 10000183/2009-10 respectively dt.25.5.2010 and quash the same. W.P.No.15729 of 2010 Writ Petition under Article 226 of the Constitution of India praying for a Writ of mandamus, directing the respondent to refund the amount of Rs.14,94,676/- along with interest at the rate of 12% till the date of payment as per the representation of the petitioner dated 03.06.2010 after deducting the penal interest. W.P.No.16838/2010 Writ Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari, calling for the records of the 1st respondent by its order dated 10.07.09 in ATA 740 (13) 2003 and the consequential recovery order of the 2nd respondent dated 07.04.2010 in Proceedings No.TN/CBE/RO/Recovery/47/2010 quash the same. W.P.No.20938/2004 Writ Petition under Article 226 of the Constitution of India praying for a Writ of mandamus, directing the 4and 5th respondents to complete the process of sale in coordination and under the supervision of the 4th respondent (Operating Agency) for sale of the assets of Mill B of the 5th respondent and the surplus land of Mill A of the 5th respondent and consequently direct the 4th respondent (operating agency) to distribute the sale proceeds to the employees against their dues, other statutory dues and the creditors and direct the respondents 9 and 10 to consider waiver of penal interest and damages payable by the 5th respondent company viz., M/s.Dhanalakshmi Mills Limited. For Petitioner in W.P.Nos.17518 to 17521/2010 W.P.Nos.21135 to 21144/2010 W.P.Nos.22081 to 22085/2010 W.P.Nos.22096 to 22101/2010 W.P.Nos.22805 and 22806/2010 : Mr.M.Jayaraman W.P.Nos.31365 of 2004 W.P.No.4616 of 2005 : Mr.M.Venkatachalapathy,SC for Mr.M.Sriram W.P.Nos.24877 and 24878/2009 : M/s.Radhagopalan W.P.No.16840/2010 W.P.No.7564/2011 : Mr.S.Ravi for M/s.Gupta and Ravi https://hcservices.ecourts.gov.in/hcservices/ W.P.Nos.12155,12156 and 15729/2010 : Mr.K.Kalyanasundaram W.P.No.16838/2010 : Mr.S.Ravindran for M/s.T.S.Gopalan and Co. W.P.No.20938/2004 Mr.M.Suresh Kumar For Respondents : Mr.S.Sivakumar for R2 in W.P.Nos.17519 and 17521/2010 Ms.Rita Chandrasekar for R2 in W.P.No.21135/2010 R2-NA Mr.K.Kalyanasundaram for R2 (in WPs.21140 & in W.P.Nos.21137 and 21139/2010, 21144/2010) W.P.Nos.21142 and 21143/2010 W.P.Nos.22081 and 22084/2010 W.P.No.22806/2010 W.P.Nos.22096 to 22101/2010 Mr.S.Ravindran for M/s.T.S.Gopalan and Co. for R2 in W.P.No.21138/2010 Mr.S.Ravi for M/s.Gupta and Ravi for R2 in W.P.No.21141/2010 Ms.V.J.Latha for R1 and R2 in W.P.No.31365/2004 and W.P.No.4616/2005 Mr.K.Gunasekaran,ACGSC for R1 in W.P.Nos.24877 and 24878/2009, W.P.No.16840/2010, W.P.No.7564/2011 Mr.M.Jayaraman for R1 and R2 in W.P.Nos.12155 and 12156/2010 in W.P.No.15729/2010 in W.P.No.16838/2010 Mr.K.Balachandran, ACGSC for R1 M/s.Shivakumar for R4 M/s.S.Arun Kumar for R6 M/s.K.Gunasekar for R9 in W.P.No.20938/2004 R1- Tribunal (in WPs.22081 to 22084/10 22806/10 & 22096 to 22101/10, 21140 to 21144/10 R2- Tribunal (in WPs.24877 & 24818/09) https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E R Heard both sides in respect of first batch on 15.06.2011 and on 17.06.2011 in respect of the second batch. The issues involved in all the writ petitions arose out of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for short PF Act). 2. In majority of the writ petitions, surprisingly, the petitioner is the Assistant Provident Fund Commissioner, Coimbatore. He has come forward to file the writ petitions aggrieved by the various orders passed by the Employees Provident Fund Appellate Tribunal constituted under Section 7D of the PF Act. 3. The writ petitions came to be filed under the following circumstances; against various orders passed by the authorities under the PF Act, including by the very same Assistant Provident Fund Commissioner (APFC for short), Coimbatore, some of the aggrieved employers preferred appeals before the Tribunal under Section 7I of the PF Act. 4. The Employees' Provident Funds Appellate Tribunal is a judicial Tribunal constituted by the PF Act. It has power to entertain appeals against the order passed by the authority either under Section 7A, or Section 7B, or Section 7C, or Section 14B of the PF Act. The Tribunal entertained the appeal and while upholding the orders of the PF authorities in levying damages and interest, however reduced the quantum of damages paid by the employer. The quantum of damages fixed by the Tribunal varied from case to case and it ranged from 5% to 15% per annum depending upon the circumstances pleaded by the employers and also the case put forth by the PF Department. 5. Aggrieved by the reduction of the damages, the APFC had filed number of writ petitions. Some of the employers aggrieved by the very same order of the Tribunal in fixing damages at a particular rate and in not granting entire relief at the notified rate or damages payable per annum, have filed the writ petitions in some of the cases. In some cases, the employers have also come forward seeking for refund of the amount consequent upon the determination by the Tribunal. In some cases, it was for setting aside the show causes notice issued as to why arrest warrants should not be issued against the employers. In some cases, instead of going before the Tribunal, they have filed writ petitions challenging the notices of attachment of the properties pursuant to the execution proceedings initiated by the PF authorities. In only one writ petition, a Trade Union had filed a writ petition seeking for a direction to the authorities to sell the properties to satisfy the dues of the workmen and also for a consequential direction to the PF and ESI authorities to waive the https://hcservices.ecourts.gov.in/hcservices/ levy of damages and penal interest on account of the fact that the mill was sick. 6. The following tabular column will show the nature of writ petitions, names of the parties, the orders of the Tribunal under which the writ petitions are filed and the relief if any granted by the Tribunal and also cases where cross writ petitions were filed by the Employers as well as other miscellaneous reliefs claimed by the Employers:- I. Writ Petitions filed by the Assistant Provident Fund Commissioner, Coimbatore: Sl.N o W.P.No. Name of the Employer Tribunal Order Appeal against and date Relief granted by Tribunal 1 17518/201 0 Bhavani Mills Ltd. ATA No.63(13)/ 2008 Dt : 22.04.09 Damages restricted to 10% p.a. on arrears 2 17519/201 0 Narasimha Mills (P) Ltd ATA No.531(13)/ 2008 Dt : 24.09.09 Damages restricted to 10% p.a. on arrears 3 17520/201 0 Bhavani Mills Ltd. ATA No.552(13)/ 2008 Dt : 22.04.09 Damages restricted to 10% p.a. on arrears 4 17521/201 0 Indian Express Publication (Madurai) Ltd, Coimbatore ATA No.861(13)/ 2005 Dt : 17.04.2009 Damages restricted to 15% p.a. on arrears 5 21135/201 0 Kwality Spinning Mills Ltd., ATA No.119(13)/ 2007 Dt : 21.05.2009 Damages restricted to 10% p.a. on arrears 6 21136/201 0 Sri Venkatesa Mills Ltd., ATA No.51(13)/ 2007 Dt : 03.09.2009 Damages restricted to 5% p.a. on arrears 7 21137/201 0 The Coimbatore Pioneer Mills Ltd., Coimbatore ATA No.348(13)/ 2007 Dt : 22.05.2009 Damages restricted to 5% p.a. on arrears 8 21138/201 0 Sri Ramalinga Choodambikai Mills Ltd., ATA No.740(13)/ 2003 Dt : 10.07.2009 Damages restricted to 10% p.a. on arrears https://hcservices.ecourts.gov.in/hcservices/ Sl.N o W.P.No. Name of the Employer Tribunal Order Appeal against and date Relief granted by Tribunal 9 21139/201 0 Venkata Ganga Textiles ATA No.520(13)/ 2009 Dt : 24.09.2009 Damages restricted to 5% p.a. on arrears 10 21140/201 0 Sujay Spinner ATA No.21(13)/ 2007 Dt : 10.07.2009 Damages restricted to 5% p.a. on arrears 11 21141/201 0 The Dhanalakshmi Mills Ltd., ATA No.79(13)/ 2006 Dt : 22.04.2009 Damages restricted to 10% p.a. on arrears 12 21142/201 0 The Coimbatore Pioneer Mills Ltd. ATA No.26(13)/ 2008 Dt : 22.05.2009 Damages restricted to 5% p.a. on arrears 13 21143/201 0 Sri Balasubramania Mills Ltd ATA No.22(13)/ 2007 Dt : 10.07.2009 Damages restricted to 5% p.a. on arrears 14 21144/201 0 Indian Express Publication (Madurai) Ltd., Coimbatore ATA No.489(15)/ 2006 Dt : 17.04.2009 Damages restricted to 15% p.a. on arrears 15 22081/201 0 Bar Wood Estate, Gudalur ATA No.734(13)/ 2004 Dt : 10.07.2009 16 22082/201 0 Bar Wood Estate, Gudalur ATA No.514(13)/ 2008 Dt : 10.07.2009 Damages restricted to 5% p.a. on arrears 17 22083/201 0 18 22084/201 0 19 22085/201 0 Chikmoyar Coffee Estate ATA No.594(13)/ 2002 Dt : 10.07.2009 ATA No.735(13)/ 2004 Dt : 10.07.2009 ATA No.517(13)/ 2008 Dt : 10.07.2009 Damages restricted to 5% p.a. on arrears https://hcservices.ecourts.gov.in/hcservices/ Sl.N o W.P.No. Name of the Employer Tribunal Order Appeal against and date Relief granted by Tribunal 20 22096/201 0 Silver Cloud Coffee Estate Ltd., Gudalur ATA No.518(13)/ 2008 Dt : 13.07.2009 21 22097/201 0 Silver Cloud Coffee Estate Ltd., Gudalur ATA No.917(13)/ 2004 Dt : 13.07.2009 22 22098/201 0 Silver Cloud Coffee Estate Ltd., Gudalur ATA No.916(13)/ 2004 13.07.2009 23 22099/201 0 Silver Cloud Coffee Estate Ltd., Gudalur ATA No.596(13)/ 2004 13.07.2009 24 22100/201 0 Silver Cloud Coffee Estate Ltd., Gudalur ATA No.918(13)/ 2004 13.07.2009 25 22101/201 0 Silver Cloud Coffee Estate Ltd., Gudalur ATA No.515(13)/ 2008 13.07.2009 26 22805/201 0 Silver Cloud Coffee Estate Ltd., Gudalur ATA No.516(13)/ 2008 13.07.2009 27 22806/201 0 Silver Cloud Coffee Estate Ltd., Gudalur ATA No.595(13)/ 2003 13.07.2009 Damages restricted to 5% p.a. on arrears II. Writ Petitions filed by the various Employers challenging the orders passed by the EPF Tribunal and PF Authorities and cases where different reliefs were claimed Sl .N o W.P.No. Employer Order Challenged/Rel ief claimed and date Remarks 28 31365/200 4 Sri Venkatesa Mills Ltd Damages and interest dt: 15.10.2004 10% amount paid towards damages in subsequent proceedings when challenged by the Employer, the Tribunal gave 5% (subject matter of challenge in W.P.No.21136/2010 filed by APFC) https://hcservices.ecourts.gov.in/hcservices/ Sl .N o W.P.No. Employer Order Challenged/Rel ief claimed and date Remarks 29 4616/2005 Sri Venkatesa Mills Ltd Recovery certificate and attachment notice dt: 27.01.2005 30 24877/200 9 The Narasimha Mills Ltd Appeal No.531 (13)/2009 dt 24.09.2009 To set aside the interest claimed 31 24878/200 9 The Narasimha Mills Ltd Appeal No.531 (13)/2009 dt: 24.09.2009 To set aside the damages @ 5% p.a. As against the same order, APFC has filed W.P.No.17519/2010 32 16840/201 0 Bhavani Mills Ltd Show cause as to why warrant of arrest should not be issued dt: 02.07.2010 33 7564/2011 Bhavani Mills Ltd ATA 63(13)/ 2008 dt:22.04.2009 confirmed by ATA 552(13)/ 2008 dt: 11.08.2010 As against the said order, APFC has filed W.P.No.17518/2010 34 12155/201 0 Silver Cloud Tea Factory Notice before attachment dated 25.05.2010 35 15729/201 0 Silver Cloud Tea Factory Seeking for refund of Rs.14,94,676/- on account of the comon order passed by the Tribunal in ATA 596(13)/ 2003 and batch dt: 13.07.2009 Common order is under challenge in W.P.Nos.22096 to 22101/2010 & 22805 and 22806/2010 by APFC https://hcservices.ecourts.gov.in/hcservices/ Sl .N o W.P.No. Employer Order Challenged/Rel ief claimed and date Remarks 36 12156/201 0 Chikmoyar Coffee Estate Notice before attachment. Common order in ATA 594 (13)/2002 and two others dated 10.07.2009 Tribunal granted damages to be paid @ 5% p.a. (Subject matter of challenge in W.P.Nos.22083 to 22085/2010) 37 16838/201 0 Sri Ramalinga Choodambikai Mills Ltd ATA 740(13)/ 2003 dt: 10.07.2009 and the consequential recovery order dated 07.04.2010 The order of the Tribunal is under challenge in W.P.No.21138/2010 filed by APFC III Writ petition filed by the Trade Union:- Sl .N o W.P.No. Employer Order Challenged/Relief claimed 1 20938/20 04 Coimbatore District Mill Workers Union (AITUC) Seeks for a direction to the Industrial Investment Bank of India and M/s.Dhanalakshmi Mills Ltd to complete the process of sale under supervision of the operating agency for the sale of the assets of the 'B' Mill and the surplus land in 'A' mill and for a consequential direction to the operating agency to distribute the sale proceeds t the employees against their dues and other statutory dues and to direct the Central provident Fund Commissoner – R) and the ESI Corporation R10 to consider waiver of penal interest and damages payable by M/s.Dhanalakshmi Mills. 7. On behalf of the PF Department, Mr.M.Jayaraman, learned Standing Counsel contended that the Tribunal had erred in partly https://hcservices.ecourts.gov.in/hcservices/ allowing the claims of the employers and reducing the quantum of damages drastically. The Tribunal also erred in holding that the authority had not discharged its functions properly and there was a lack of application of mind and discretion. If the Tribunal is of the opinion that the authority had not discharged his quasi judicial function, then it should have remanded the matters for fresh disposal by the authority himself. The learned counsel for the APFC also submitted that the power to levy damages flowed from Section 14B of the PF Act r/w Para 32A of the Employers PF Scheme 1952. The scheme itself provides for levy of damages on the basis of the period and the rate of damages and therefore fixing an adhoc amounts on uniform rates is contrary to the Act and the Scheme. 8. Per contra, various learned counsels appearing for the employers contended that the APFC had no locus standi to file writ petitions challenging the orders passed by the PF Tribunal. The authorities are quasi judicial authorities. Therefore, having determined the liability of the employers and when their orders are challenged before the judicial Tribunal, viz., EPF Tribunal, then any determination by the Tribunal is binding on the parties. Hence, the authority cannot file such writ petitions challenging the orders of the Tribunal. 9. In this context, reference was made to an unreported judgment of this Court in Regional Provident Fund Commissoner, Tirunelveli v. M/s.Prabha Beverages Private Ltd., Marthandam (W.P.No.3462 of 1999) dated 22.10.2008. Reliance was placed upon paragraphs 7 to 9, which reads as follows:- "7. In more or less similar circumstances, under the Cinematograph Act, the Supreme Court vide its decision in Union of India -vs- K.M.Sankarappa reported in (2001) 1 SCC 582 held in para 7, which is as follows:- "7. ........The executive cannot sit in an appeal or review or revise a judicial order. The Appellate Tribunal consisting of experts decides matters quasi-judicially. A Secretary and/or Minister cannot sit in appeal or revision over those decisions. At the highest, the Government may apply to the Tribunal itself for a review, if circumstances so warrant. But the Government would be bound by the ultimate decision of the Tribunal". (emphasis added) 8. When the Central Board of Film Certification came up before this Court challenging the order of the Tribunal, a Division Bench of this Court, to which I am (K.Chandru,J.) a party, had an occasion to consider the locus standi of the Central Board of Film Certification in Central Board of Film Certification -vs- Yadavalaya Films ((2007) 2 MLJ 604). In para 22, it was observed as follows:- "22. In our opinion, it is doubtful whether these appeals are maintainable, in view of the decision of the Supreme Court in Union of India -vs- K.M.Shankarappa, AIR 2000 SC 3678: (2001) 1 SCC 582: (2001) 1 MLJ 146(SC)." 9.In the present case, except that the petitioner was very sensitive about his own order being reversed by the Tribunal, https://hcservices.ecourts.gov.in/hcservices/ there is no case for them to come to this Court challenging the order of the Tribunal, which had given sound reasoning for reversing the order passed by the first respondent." 10. Reference was also made to a recent judgment of the Bombay High Court in Assistant Provident Fund Commissioner, Goa v. Nirmitee Holidays (P) Ltd., Pune reported in 2011-II-LLJ-469(Bom). Reliance was placed upon the following passage found in paragraph 4, which is as follows:- "4. ...It is well-settled that an authority while discharging quasi-judicial functions cannot challenge the order passed by the Appellate Authority, reversing his/her order. In my considered opinion, the ratio laid down in the case of Village Panchayat of Velim v. Shri Valentine S.K.F.Rebello and Another (supra) and in the case of Village Panchayat of Sancoale and Another v. M-Tech Developers Ltd.(supra), relied upon by the learned counsel for the respondent would be squarely applicable. I do not find any