IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR MONDAY, THE 29TH MARCH 2010 / 8TH CHAITHRA 1932 WA.No. 494 of 2010 -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.12165/2007 .................... APPELLANTS/RESPONDENTS 1 & 2: --------------------------------------- 1. THE REGIONAL PROVIDENT FUND COMMISSIONER EMPLOYEES PROVIDENT FUND ORGANISATION, SUB REGIONAL OFFICE,BHAVISHYANIDHI BHAVAN, KALOOR, KOCHI-682017. 2. THE ASSISTANT PROVIDENT FUND E COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION,SUB REGIONAL OFFICE,BHAVISHYANIIDHI H BHAVAN, KALOOR KOCHI-682017. BY ADV. SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE SRI.M.CHANDRA BOSE RESPONDENTS/PETITIONER AND 3RD RESPONDENT: ---------------------------------------------------------- 1. THE HINDUSTATN ORGANIC CHEMICALS LIMITED ABMALAMUGAL,ERNAKULAM REPRESENTED BY ITS CHIEF PERSONNEL & ADMINISTRATIVE MANAGER, 2. THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL,NEW DELHI-110092. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, CJ. & K. Balakrishnan Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 494 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of March, 2010 JUDGMENT K. Balakrishnan Nair, J. The respondents in the writ petition are the appellants. The 1st respondent herein was the petitioner. The writ petition was filed by the 1st respondent challenging Ext.P10 order passed under Section 14B of the Employees' Provident Funds & Miscellaneous Provisions Act, 1952 and Ext.P23 order of the appellate authority affirming Ext.P10. 2. Admittedly, there was delay on the part of the 1st respondent in remitting the PF dues. It is common ground that for 4 or 5 years amounts could not have been computed and paid because of the interim order granted by this Court in the writ petition filed by the employees of the 1st respondent. Finally the stay was vacated and within five months the entire amounts due to the EPF were paid by the 1st respondent. Thereafter, proceedings under Section 14B were initiated by the respondents which led to the passing of Ext.P10 order by WA No.494 of 2010 -:2:- the original authority and Ext.P23 order by the appellate authority. As per the impugned order Ext.P10, the original authority levied an amount of Rs.20,04,909/- towards penal damages. The said order was affirmed by the appellate authority. Challenging those orders, as mentioned earlier, the writ petition was filed. 3. Learned Single Judge noticed that delay of about 5 years was occasioned by the interim order of this Court and a further delay of 5 months was occasioned owing to administrative reasons. Learned Judge noticed that for the delay in remitting the PF dues, the levy of damages under Section 14B is not automatic, but it would depend upon the facts of each case. In this case, having regard to the various relevant facts, the learned Judge took the view that the interest of justice will be met, if the levy of damages under Section 14B is reduced to Rs.2 lakhs and orders were passed accordingly. Appellants being aggrieved by the said direction, have preferred this appeal. WA No.494 of 2010 -:3:- 4. The learned Standing Counsel for the appellants brought to our notice that Section 14B permits levy of damages which may be equivalent to the defaulted amounts. In this case though initially stay was granted by this Court, even after vacating the interim order, no amount was paid for a period of 5 months which was unjustified and therefore rightly damages were imposed. Further it is brought to our notice that learned Single Judge, relying on an earlier Single Bench judgment of this Court, had rendered the judgment under appeal, though it was reversed by a Division Bench of this Court, as evident from Annexure I. 5. We agree with the learned Single Judge that imposition of damages is not automatic and the quantum of damages to be fixed would depend upon the facts of each case. In this case, the employer was not able to pay the contributions because of the interim order passed by this Court. Of course there is culpable delay from the part of the employer in remitting the amount for about 5 months even after the WA No.494 of 2010 -:4:- vacating of the interim order by this Court. Having regard to that learned Judge took the view that the imposition of an amount of Rs.2 lakhs will meet the ends of justice. Normally the learned Single Judge ought to have remitted the matter to the original authority to take a fresh decision in accordance with law. But in this case the learned Single Judge himself has passed the order concerning the quantum of damages to be imposed. It is a well settled position in law that this Court can pass order, which statutory authority should have passed, had it exercised the discretion vested in it properly. See the decision of the Apex Court in Comptroller & Auditor General of India v. K.S. Jagannathan [AIR 1987 SC 537]. In view of the above legal position, the decision of the learned Single Judge cannot be described as without jurisdiction. Having regard to the special facts of this case, we are of the view that the learned Single Judge has passed an order directing to pay a reasonable amount as damages. Therefore we are not inclined to interfere with the same on technical WA No.494 of 2010 -:5:- grounds. The Writ Appeal is dismissed. But it is clarified that the judgment under appeal will not be a binding precedent in other cases. J.Chelameswar, Chief Justice. K.Balakrishnan Nair, Judge. ttb