IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE B.P.RAY WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 WP(C).No. 32458 of 2004(L) ------------------------------------------ PETITIONER(S): -------------------------- M/S.STEEL COMPLEX LTD., POST BOX NO.42, FEROKE 673 672, KOZHIKODE, REPRESENTED BY ITS MANAGING DIRECTOR, UNNEENKUTTY. BY ADVS. SRI.E.K.NANDAKUMAR, SRI.A.K.JAYASANKAR NAMBIAR, SMT.PRIYA MAHESH. RESPONDENT(S): ------------------------------- 1. THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, BHAVISHYA NIDHI BHAVAN, P.B.NO.1806, ERANHIPPALAM, KOZHIKODE. 2. THE CENTRAL BOARD OF TRUSTEES, EMPLOYMENT PROVIDENT FUND ORGANISATION, BHAVISHYA NIDHI BNHAVAN, 14, BHIKAIJI, CAMA PALACE, NEW DELHI 110 066. 3. THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, BAHVISHYA NIDHI BHAVAN, 14, BHIKAIJI, CAMA PALACE, NEW DELHI 110 066. R1 TO R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC, P.F. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.32458/2004 ; APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE COMMUNICATION DTD. 26/07/1996 ISSUED BY THE DEPUTY SECRETARY TO GOVERNMENT ON BEHALF OF THE PRINCIPAL SECRETARY TO THE ASSTT. COMMR.OF CENTRAL EXCISE, KOZHIKODE. P2: COPY OF THE ORDER DTD. 2ND JULY 2004 OF THE 1ST RESPONDENT NO.KR/KK/SRO/PD/B/2002-2003/3996/ENF.1(3)/2004/1833. P3: COPY OF TH APPLICATION DTD. 28/07/2004 FILED BY THE PETITIONER SEEKING WAIVER OF DAMAGES IMPOSED FOR THE PERIOD 4/2201 TO 3/2003. P4: COPY OF THE COMMUNICATION DTD. 20/08/2004 ISSUED BY THE 3RD RESPONDENT. P5: COPY OF THE LETTER DTD. 22/03/2006. P6: COPY OF THE LETTER DTD. 14/06/2006. P7: COPY OF THE MODIFIED SANCTIONED SHCEME OF THE BIFR DTD.10/06/2010 (WITHOUT ITS ANNEXURES). RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss B.P. RAY, J. - - - - - - - - - - - - - - - - - W.P.(C) Nos. 32458 of 2004 - - - - - - - - - - - - - - - - Dated this the 16th day of November, 2011. JUDGMENT Heard the learned counsel for the petitioner. 2. The petitioner has approached this Court with the following prayers: 1. Call for the records leading to Ext.P4 communication and to quash the same by the issue of a writ or certiorari. 2. Issue a writ of mandamus or other appropriate writ, order or direction commanding the 2nd respondent to consider and dispose of Ext.P3 application in accordance with law after providing the petitioner an opportunity of being heard. 3. The case of the petitioner is as follows: The company is a Sick Industrial Company as defined under the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985. Under Section 14B of the Employees Provident Fund and Miscellaneous Provisions Act which deals with the levy of penal charges, the Central Board of Trustees of the Employees Provident Fund Organisation has the power to reduce or waive the damages levied under the section in respect of an establishment which is a sick industrial unit undergoing a scheme of rehabilitation subject to such terms and conditions specified in the scheme. Under Paragraph 32B of the scheme, the Central Board may completely waive the damages imposed in W.P.(C) No. 32458/2004 2 respect of a sick industrial company where there has been change of management of the said company or where the BIFR recommends complete waiver. In respect of the petitioner Company, which is undergoing a scheme of rehabilitation, there has been a further change of management pursuant to a joint venture agreement entered into between the Government of Kerala and the Steel Authority of India Ltd. In terms of the agreement, the management and control of the company will vest with SAIL. It is further asserted that the BIFR has also recommended waiver of damages levied for delayed payment of PF dues for the period 1997 to 2004. Damages under Section 14B in the present case have been levied for delayed remittances during the period April, 2001 to March, 2003. 4. In view of such recommendation, I am of the considered view that the petitioner Company shall make a representation highlighting its grievances before the Board enclosing a copy of this order. The learned counsel for the petitioner submits that the Company has already made a representation in terms of Section 32B enclosing the modified scheme as well as the BIFR order. If that be so, the Central Board of Trustees shall dispose W.P.(C) No. 32458/2004 3 of the representation submitted by the petitioner within a time frame after giving an opportunity of hearing to the petitioner. In view of the mandatory provisions contained in paragraph 32B of the scheme and the recommendations of the BIFR, I am of the considered view that the petitioner is entitled to the benefit of waiver of damages as claimed by it. The learned counsel for the respondents submits that the petitioner Company has not paid the interest levied on it under Section 7Q of the Act. If the amount has not been paid, the same shall be paid within two months from today. The impugned order under Ext.P4 is quashed. The matter is remitted back to the Board for reconsideration in accordance with law and appropriate orders shall be passed within three months from the date of receipt of a copy of this judgment. A copy of the judgment be sent to respondent No.2 at the cost of the petitioner. Requisites for the same shall be filed within three weeks from today. sd/- B.P. RAY, JUDGE. rv W.P.(C) No. 32458/2004 4 B.P. RAY, J. ----------------------------------------------------------- W.P.(C) No. 32458/2004 5 O.P.No. 13887 of 2002 ------------------------------------------------------------- Dated this the 16th day of November, 2011. JUDGMENT