Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO.1991 of 1995 Tata Engineering & Locomotive Company Limited. ...Petitioner V/s. Union of India & ors. ...Respondents Mr.K.S.Bapat, advocate for the petitioner Mr.K.R.Choudhari iby Mr.A.S.Khan, advocate for respondent no.1 Mr.Suresh Kumar, advocate for respondent nos.2 & 3. CORAM CORAM CORAM : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. DATED DATED DATED : 18th February , 2008 : 18th February , 2008 : 18th February , 2008 ORAL ORAL ORAL JUDGEMENT JUDGEMENT JUDGEMENT M/s. Noduron Founders Maharashtra Limited was a company incorporated under the Companies Act, 1956 and it was declared as a sick company by the Board of Industrial and Financial Reconstruction established under the Sick Industrial Companies (Special Provisions), Act, 1985. On 21-9-1993 the Respondent No.2 passed an order under Section 14-B of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 and thereby levying damages amounting to Rs.99,719/-, on account of the purported delay in payment of contributions to the provident fund on the part of the petitioner for the period from April 1989 to February 1992. In the meanwhile the petitioner company was appointed as an operating agency by the ICICI Ltd. and the petitioner company had submitted an offer for 2 the take over/merger of the sick company on 4-9-1991. Rehabilitation scheme was submitted by the petitioners and the same was sanctioned by the Board on 24-3-1992 and consequently the said sick company was declared to be merged with the petitioner company w.e.f. 1-4-1991. 2. On 21-7-1993 the petitioner company had submitted an application to the respondent no.2 and prayed for a full waiver of the levy of the damages/penalties as imposed under Section 14-B of the Provident Fund Act. While this application was pending, the company submitted a reminder on 24-11-1993 and finally approached this Court in Writ Petition No. 2311/1994. The said petition was disposed off by the order dated 17-10-1994 in terms of the Minutes of the order. The pending application of the company was directed to be decided by the Central Provident Fund Commissioner, New Delhi within twelve weeks. However, by communication dated 31-3-1994 the petitioner was informed by the Regional Provident Fund Commissioner (Head Quarters) that its application dated 24-11-1993 was rejected as the BIFR had not recommended for any waiver of damages, while approving the scheme of merger/rehabilitation and the said decision was taken on 31-3-1994 and this order was communicated to the petitioner on 6-12-1994 for the first time. It is thus clear that when this Court passed the order in terms of the minutes on 17-10-1994, 3 the company’s application was already decided but it was not informed to this Court and the company was not aware of the said decision till it received the Dotter dated 6-12-2004. 3. Mr.Suresh Kumar,the learned counsel for Respondent No.2 referred to clause 32-B of the Employees’ Provident Fund Scheme, 1952 and more particularly sub-clause (b) insupport of the order passed by the Provident Fund Commissioner rejecting the request for full waiver. Clause 32 B of the said scheme reads as under: 32B. Terms and conditions for reduction or waiver Terms and conditions for reduction or waiver Terms and conditions for reduction or waiver of of of damages- damages- damages- The Central Board may reduce or waive the damages levied under section 14B of the Act in relation to an establishment specified in the second proviso to section 14B, subject to the following terms and conditions, namely:- (a) in case of a change of management including transfer of the undertaking to workers’s co-operative and in case of merger or amalgamation of the sick industrial company with any other industrial company, complete waiver of damages may be allowed. (b) In cases where the Board for Industrial 4 and Financial Reconstruction, for reasons to be recorded in its schemes, in this behalf recommends, waiver of damages upto 100 per cent may be allowed. (c) in other cases, depending on merits, reduction of damages up to 50 per cent may be allowed. 4. Mr. Suresh Kumar submitted that unless the Board for Industrial and Financial Reconstruction for reasons to be recorded hereinabove recommends waiver of damages upto 100 per cent, the same cannot be allowed by the Central Board under the Provident Fund Act and in the instant case no such recommendation finds place in the order passed by the BIFR allowing the merger of the sick company with the petitioner company. However, sub-clause(a) of clause 32B states that in case of change of management including in case of merger/amalgamation of the sick industrial company with any other industrial company, complete waiver of damages may be allowed and Mr. Bapat, the learned counsel for the petitioner company has relied upon the said provision and submitted that even otherwise the Central Board has a discretion to consider the petitioner’s request for complete waiver of the damages in respect of the sick company merged with it. There is no dispute 5 that the entire amount has been deposited by the petitioner company with the Respondent No.2 and the order passed by this Court in the earlier round in Writ Petition No.2311/1994 could not be taken into consideration by the Central Board while rejecting the application submitted by the petitioner for waiver. 5. Hence, it is directed that the application of the petitioner submitted to the Central Board on 24-11-1993 is directed to be considered afresh by taking into consideration the provisions of Clause 32B of the Scheme in its entirety and after hearing the petition. This should be done as expeditiously as possible and preferably within a period of six months. The impugned order dated 31-3-1994 is, therefore, quashed and set aside and rule is made absolute accordingly. 6. Mr.Bapat, the learned counsel for the petitioner company undertakes that a copy of the representation will be submitted to the Central Board within a period of two weeks from today. [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.]