IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 WP(C).No. 21571 of 2004(R) -------------------------- PETITIONER(S): ----------------- VIVEK D.BAGADE, MANAGING PARTNER, M/S. PRASANTHI TILE WORKS, CERAMICS ROAD, KASARAGOD. BY ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR RESPONDENT(S): ------------------- 1. THE ASSISTANT PROVIDENT FUND COMMISSIONER AND OFFICER-IN-CHARGE, EMPLOYEES PROVIDENT FUND ORGANISATION, SUB REGIONAL OFFICE, V.K.COMPLEX FORT ROAD, KANNUR. 2. THE RECOVERY OFFICER, OFFICE OF THE RECOVERY OFFICER, EMPLOYEES PROVIDENT FUND ORGANISATION, V.K. COMPLEX FORT ROAD, KANNUR. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC, P.F. FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.21571/04 APPENDIX PETITIONER'S EXHIBITS EXT.P1: A TRUE COPY OF THE NOTICE DT 15.4.2004. EXT.P2: A TRUE COPY OF THE REPLY TO THE NOTICE DT 26.5.2004. EXT.P3: A TRUE COPY OF THE LETTER DT 3.6.2004. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 21571 OF 2004 (R) ===================== Dated this the 15th day of June, 2009 J U D G M E N T The prayer in this writ petition is to quash Ext.P1. 2. Petitioner is the Managing Partner of a partnership firm M/s.Prasanthi Tile Works engaged in the manufacturing of ceramic tiles. The establishment was covered under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act. According to the petitioner, there were 35 employees and the establishment was closed w.e.f. 1/6/2001. It is stated that except one, who was retained for administrative purposes, the remaining employees were all terminated and that the one employee retained was also terminated in November, 2001. Petitioner admits that there was some delay in remitting the contribution in respect of the one employee who was retained. In April, 2004, Ext.P1 notice was issued by the respondents levying an amount of Rs.5,757/- as damages under Section 14(B) of the EPF Act on the petitioner. Petitioner filed Ext.P2 reply and Ext.P3 order was passed by the respondents confirming Ext.P1. It is in these circumstances this writ petition has been filed. 3. Counsel for the petitioner submits that Exts.P1 and P3 are WPC 21571/04 :2 : mechanical orders passed without any application of mind. According to him, in the matter of levy of damages, there is an element of discretion and Ext.P1 or Ext.P3 do not show that such discretion was exercised by the respondents. 4. On the other hand, the counter affidavit filed by the respondents show that for the delay, they are entitled to levy damages and that the damages in question was levied in terms of the provisions contained in Para 32(A) of the EPF Scheme. 5. Para 32 of the EPF Scheme, 1952 prescribes the rate at which damages is leviable on an employer for the period of default mentioned therein. If as stated in the counter affidavit, the damages have been levied on the petitioner applying the rate as indicated in Para 32A of the scheme, petitioner cannot say that there has been any arbitrary levy of damages on the petitioner. 6. Nothing has been placed on record to show that the respondents had departed from the rate prescribed in para 32A of the EPF Scheme. If so, the allegation of the petitioner that the levy of damages was without any application of mind is not substantiated. Consequently, the writ petition is only to be dismissed and I do so. ANTONY DOMINIC, JUDGE Rp