IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE B.P.RAY MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933 WP(C).No. 36471 of 2004(P) -------------------------- PETITIONER: --------------- M/S.PADHOOR PLANTATIONS (P) LTD., PADHOOR HOUSE, THEKKIL POST, KASARAGOD 671 121, REP. BY ITS MANAGING DIRECTOR, T.B.KUNHI MOHIN HAJEE. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SMT.PRIYA MAHESH SMT.PRIYA MANJOORAN RESPONDENTS: --------------- 1. THE ASSISTANT PROVIDENT FUND COMMISIONER EMPLOYEES PROVIDENT FUND ORGANISATION, SUB REGIONAL OFFICE, P.B.NO.1806, KOZHIKODE 673 006 2. REGIONAL PROVIDENT FUND COMMISSIONER EMPLOYEES' PROVIDENT FUND ORGANISATION, BHAVISHYANIDHI BHAVAN, P.B.NO.1806, ERANHIPPALAM P.O. KOZHIKODE 673 006. 3. UNION OF INDIA, REP. BY ITS SECRETARY, MINISTRY OF LABOUR SHRAM SAKTHI BHAVAN, NEW DELHI. R3 BY ADV. SRI.SUNNY XAVIER, ACGSC R1 & R2 BY SRI.THOMAS MATHEW NELLIMOOTTIL,SC, P.F THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE ORDER DATED 17TH JUNE, 2002 PASSED BY THE 2ND RESPONDENT, NO.KR/KK/235- A/ENF./DAM. CELL III (7)/2002/2492 ALONG WITH ANNEXURES. EXT.P2 TRUE COPY OF THE ORDER DATED 23RD SEPTEMBER, 2003 PASSED BY THE 1ST RESPONDENT, NO.KR/KK/SRO/PD/EX./2003-2004/235A/ENF II(4) 03/4290 ALONG WITH ANNEXURES. EXT.P3 : TRUE COPY OF THE ORDER DATED 31ST MARCH 2003 PASSED BY THE 1ST RESPONDENT, NO.KR/KK/SRO/PD/A/14B/2002-2003/235A/ENF II (4)03/11699 ALONG WITH ANNEXURES. EXT.P4 : TRUE COPY OF THE ORDER DATED 1ST MAY, 2003, PASSED BY THE 1ST RESPONDENT, NO.KR/KK/SRO/PD/EX./2002-2003/235A/ENF II(4) 03/787 ALONG WITH ANNEXURES. EXT.P5 : TRUE COPY OF THE ORDER DATED 3RD MARCH, 2004 PASSED BY THE 1ST RESPONDENT NO.KR/KK 235A, ALONG WITH ANNEXURES. EXT.P6 TRUE COPY OF THE REPORT IN THE NEW INDIAN EXPRESS DAILY, 17.06.2003 EDITION. EXT.P7 : TRUE COPY OF THE LETTER DATED 17.06.2003 ADDRESSED BY REGIONAL PROVIDENT FUND COMMISSIONER TO PRESIDENT OF THE ASSOCIATION REG. THE CONSTITUTION OF A SUB-COMMITTEE, NO.C.II/35(3)2K/TN/2354. EXT.P8 : TRUE COPY OF THE REPRESENTATION DATED 03.11.2003 WITH ITS ANNEXURES. EXT.P9 : TRUE COPY OF THE NOTICE DATED 9TH JULY, 2004 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER, NO.KR/KK/35-A/ENF.II(4)/2004/2019. EXT.P10 : TRUE COPY OF THE STATEMENT, DETAILS OF THE AMOUNTS PAID BY THE PETITIONER TOWARDS ARREARS OF CONTRIBUTION, DATED NIL. EXT.P11 : TRUE COPY OF THE NOTICE FOR SETTLING A SALE PROCLAMATION DATED 02.11.2004 REF. NO. KR/KK/235A/ENF.II(4)/RECOVERY/2004/4407 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P12 : TRUE COPY OF THE CIRCULAR DATED 29TH MAY, 1990 ISSUED BY THE CENTRAL PROVIDENT FUND COMMISSIONER, NEW DELHI, NO.P.G.CELL/3(3) 86/DAM. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rv B.P. RAY, J. - - - - - - - - - - - - - - - - - W.P.(C) No. 36471 of 2004 - - - - - - - - - - - - - - - - Dated this the 21st day of November, 2011. JUDGMENT Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the Employees Provident Fund Organisation. 2. The petitioner has filed this writ petition with the following prayers: 1. Call for the records leading to Exts.P1 to P5 orders and Exts.P9 and P11 notices and to quash the same by the issue of a writ of certiorari. 2. Issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to reconsider the matter afresh and in accordance with law after affording the petitioner an opportunity of being heard. 3. declare that the rates of damages prescribed under paragraph 32A of the EPF scheme is inclusive of interest and to direct the respondents to refund that portion of interest levied on the petitioner. 4. declare that Section 7Q insofar as it provides for interest at a higher rate then that credited to be subscribers' account is ultra vires the provisions of the Act. 3. By order dated 16.12.2004 passed by this Court, the petitioner was directed to remit the arrears of employee's share of contribution, the relevant portion of which reads as follows: “Having heard the learned counsel for the parties, I am of the view that W.P.(C). No.36471/2004 -:2:- the petitioner can be directed to remit `3.5 lakhs within six weeks from today. Therefore, the balance amount shall be paid in 12 equated monthly instalments starting from March, 2005. If the petitioner commits default in making payment of two consecutive monthly instalments, the Organisation will be at liberty to realise the entire arrears in lump. It is made clear that the remittances that are being made by the petitioner shall be subject to the final adjudication of the quantum and liability of the petitioner and without prejudice to the contentions that have been raised in the writ petition All recovery proceedings pursuant to Exts.P9 and P11 shall remain stayed until further orders.” 4. The learned counsel for the petitioner submits that the petitioner has complied with the directions in the interim order and the only question arises for consideration is whether he is entitled to pay damages. I am of the view that the petitioner has to pay damages since admittedly there is default in paying the contribution as well as interest. The petitioner undertakes to pay the entire interest, if any, within three months from today. So far as the damages under Section 14B of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 is concerned, the petitioner is entitled to pay an amount of `12,68,294/-. 5. Considering the nature of the grievances and considering the fact that the petitioner's estate was running at a loss and was closed for some time, I modify the order passed under Section 14B of the Act and reduced the amount of W.P.(C). No.36471/2004 -:3:- damages to `6.34 lakhs. The petitioner shall pay the modified amount within two months from today along with contributory interest still pending. This writ petition is disposed of as above. sd/- B.P. RAY, JUDGE. rv W.P.(C). No.36471/2004 -:4:-