IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.14655 of 2006 Date of decision:10.12.2009 Employees' Provident Fund Organisation ....Petitioner versus M/s Sportking India Limited and another ...Respondents II. Civil Writ Petition No.14718 of 2006 Employees' Provident Fund Organisation ....Petitioner versus M/s Sportking India Limited and another ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Kamal Sehgal, Advocate, for the petitioner. Mr. V.G.Dogra, Advocate, for respondent No.1. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. (Oral) 1. The two writ petitions relate to the legitimacy of levy under Provident Fund Commissioner for damages for delayed remittances under Section 14-B of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952. The Tribunal in an appeal filed under Section 7(I) of the Act held that the management had been labouring under a belief Civil Writ Petition No.14655 of 2006 - 2 - that they were entitled to Infancy Protection period from the date when the establishment came into being and when the demand was made on 22.05.1998, the respective management did not contest any further but made the remittance even within 15 days namely on 5th June, 1998. The Tribunal therefore held that there had been really no delay and waived the requirement of damages. 2. The writ petitions have been filed by the Provident Fund Commissioner assailing the respective orders of the Tribunal granting to the respective establishments the exemption from payment of damages. In both the writ petitions, the directions of the Tribunal are to set aside the damages for the delayed remittances for the period from December 1993 to September 1994 and directions for consideration of the damages for the period from June 1997 to July 1997. These two orders are challenged on the ground that a power of grant of a complete waiver of damages is not available to the Tribunal exercising his powers under the provisions of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952. 3. At the time when notice had been issued in Civil Writ Petition No.14655 of 2006, a Division Bench of this Court has directed that the consideration shall be only to the question of modifying the damages equal to the interest component of the amount which was remitted beyond the prescribed time. 4. The learned counsel appearing for the petitioner points out that even apart from the liability to pay interest which is covered by the provisions of the Section 7(q) of the Act against which liability, there is Civil Writ Petition No.14655 of 2006 - 3 - no provision for an appeal under Section 7(I), a determination of damages which is assessed under Section 14-B could be assailed in an appeal under the provisions of Section 7(I). The liability for payment of damages and the extent of damages are respectively governed under the provisions of Section 14-B of the Act and clause 32-A of the Employees' Provident Fund Scheme (hereinafter called 'the scheme'). The contention of the learned counsel Shri Kamal Sehgal is that in terms of the language under Section 14-B, the power of the authority to impose a penalty for delayed remittance shall be in the nature of damages as provided under the scheme and the only limitations to such power are two-fold: (i) the employee shall be given a reasonable opportunity of being heard; and (ii) when the establishment comes within the purview of a rehabilitation scheme under SICA, the Central Board may reduce or waive the damages. This power to waive damages is available only to the Central Board and that too on a contingency of the establishment being declared as a sick company to which the provisions of SICA were applicable. The discretion to waive the liability of damages could again extend only to the limit of damages that could be imposed, the outer limit having been prescribed under clause 32-A of the scheme. 5. The complete waiver made by the Tribunal is, therefore, illegal. The learned counsel refers to two decisions of the Hon'ble Supreme Court that deal with the issue of the power of the authority to waive the imposition of damages. Regional Provident Fund Commissioner Versus S.D.College, Hoshiarpur and others-(1997) 1 Supreme Court Cases 241, deals with the power under Section 14-B Civil Writ Petition No.14655 of 2006 - 4 - when inspite of a liability ascertained by the authority, the management did not make the remittances to the Commissioner but it was making deposits to the University account itself. In that case, the Hon'ble Supreme Court held that there was no discretion left to the Commissioner to totally waive the penalty. What was left to his discretion was merely the rate at which it was to be computed by way of penalty. In that case, the imposition for 25% as damages was found to be justified. In Halwasia Vidya Vihar (Sr. Sec. School) Haryana Versus Regional Provident Fund Commissioner-(2006) 4 Supreme Court Cases 46, the earlier decision referred to above was cited with approval and the Hon'ble Supreme Court re-affirmed the view to limit the extent the discretion to only the rate of damages that could be imposed and restricted it to 25% of the amount levied by the Commissioner. 6. In this case, the Tribunal has held that the management was under the belief that they were not liable for making any remittances on the belief that infancy protection scheme was available, where it was not. It therefore found that from the date when the demand was made, that was on 22.05.1998, the liability arose and the remittances having been made immediately within two weeks, there was no need for claiming damages. As pointed out by the petitioner, the liability to pay interest for delayed remittances is unexceptional and covered under Section 7(q), there is no discretion left for non-payment of such interest. The issue of damages is on a different basis. An element of discretion is available but the discretion is circumscribed by the statutory provisions of Section 14- B read with Clauses 32-A and 32-B of the scheme, 1952. The decisions Civil Writ Petition No.14655 of 2006 - 5 - of the Hon'ble Supreme Court lend guidance to the fact that the discretion would again be exercised only to regulate the percentage on interest leviable on the arrears by way of damages but does not extend to grant of a complete waiver. The Tribunal has found that the non- payment was under justifying circumstances. It shall consider the same for awarding such interest by way of damages not exceeding the percentage as prescribed under Clause 32-A. It appears that the damages which were collected from the management was also refunded to the management in Civil Writ Petition No.14718 of 2006. The fact that the management had at the previous time made the payment as demanded has also to be considered favourably as obtaining in favour of the management for a due remission of the percentage of amount payable on the arrears. 5. The writ petitions are allowed on the above terms. The orders passed already are set aside. The Tribunal will issue appropriate notices and give opportunities to the management to make due representations before a final decision is taken and fresh orders are issued. (K.KANNAN) 10.12.2009 JUDGE sanjeev