IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 25TH JANUARY 2008 / 5TH MAGHA 1929 OP.No. 16388 of 2001(A) ---------------------------------- PETITIONERS: --------------------- 1. TRIVANDRUM RUBBER WORKS LTD., REP. BY ITS MANAGING DIRECTOR, TRIVANDRUM -7. 2. STATE FARMING CORPORATION OF KERALA LTD., PUNALUR, REP. BY ITS MANAGING DIRECTOR. BY ADV. SRI.N.D.PREMACHANDRAN, ADV. SRI.M.R.ANISON. RESPONDENTS: ------------------------ 1. THE EMPLOYEES PROVIDENT FUNDS APPELLATE TRIBUNAL, (GOVT. OF INDIA, MINISTRY OF LABOUR), 7TH FLOOR, 60 SKYLARK BUILDING, NEHRU PLACE, NEW DELHI. 2. REGIONAL PROVIDENT FUND COMMISSIONER, (F & R), KERALA, EMPLOYEES PROVIDENT FUND ORGANISATION, REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, PATTOM.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.LALGI.P.THOMAS ACGSC, SRI.N.N. SUGUNAPALAN, SC, P.F. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 16388/2001-A: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE NOTIFICATION BEARING NO. 1626/D2/84/ID DTD. 19/06/1984 ISSUED BY THE GOVT. EXT.P.2: COPY OF THE NOTIFICATION NO. 10216/L3/93/P2 & T DT. 16/06/1993 ISSUED BY THE GOVT. EXT.P.3: COPY OF THE PROCEEDINGS NO. KR/1112/ENF.V (2)/2000 DT. 18/07/2000 ISSUED BY THE R.2. EXT.P.4: COPY OF THE PROCEEDINGS NO. KR/565/ENF.V (1)/2000 DT. 25/07/2000 ISSUED BY THE R.2. EXT.P.5: COPY OF THE ORDER OF THE R.1. DT. 18/12/2000 IN APPEAL NO. ATA 455 (7) 2000 & ATA 456 (7) 2000. EXT.P.6: COPY OF THE JUDGMENT DT. 15/01/98 IN O.P. 10373/92. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NO.16388 of 2001-A - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of January, 2008. JUDGMENT The petitioner is a Government company which is now defunct. The adverse circumstances relating to the affairs of the company are stated in detail in this original petition. Every effort to revive the same has failed and ultimately the land owned by the company has now been allotted to the Airport Authority for the development of the Trivandrum International Airport. Learned counsel for the petitioner submits that only a skeleton staff are in service now, to complete the winding up proceedings. The company failed to remit the contribution under Employees Provident Fund and Miscellaneous Provisions Act in time during the period from 19.6.1984 to 18.6.1995, obviously because of the financial difficulties. Ultimately, the amounts were paid. Thereafter, the second respondent initiated action under Section 14B of the Act claiming damages. After hearing the petitioner, by Exts.P3 and P4 damages varying from 17% to 37% has been imposed. This was challenged by the petitioner in appeal before the Appellate Tribunal and the Tribunal, by Ext.P5, disposed of the appeal modifying the orders to the extent that damages should be re-assessed at the flat rate of 17% per OP 16388/2001 -2- annum. It was also observed that the matter will be finalised in accordance with the direction in Writ Appeal No.5008/1998. It is submitted by the learned counsel for the petitioner that the Writ Appeal has since been dismissed. 2. Learned counsel for the petitioner pointed out that in this case the delay occurred not due to any willful omission on the part of the company in remitting the contribution, but it was a case where because of the financial difficulties the company was unable to remit the contributions in time. It is further pointed out that as at present the company is not even in possession of any land also, so that there are no proposals to revive its fate. It is therefore submitted that this court should take note of the present circumstances in which the company is put to and the company should be relieved of the liability to pay the amount of damages. 3. Learned Senior Counsel appearing for the respondents submitted that the Appellate Tribunal has taken a lenient view and the liability to pay damages cannot be whittle down, as the ultimate beneficiaries are the employees and the organisation is bound to pay interest to them also. 4. Going by the provisions of the Act, the contribution has to be paid at the relevant time and failure of the same will invite imposition of damages under Section 14-B of the Act. It is well settled that the financial OP 16388/2001 -3- difficulties will not absolve the employer from the above liability. Therefore, I am of the view that Exts.P3 to P5 do not suffer from any infirmity. 5. The financial position of the company is a matter which the petitioner will have to bring to the notice of the Government, as it is a Government company, so that ultimate remedial action can be taken at the Government level, regarding the liability to be cleared. With the above observation, the original petition is dismissed. (T.R. Ramachandran Nair, Judge.) kav/ OP 16388/2001 -4- T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. No.16388 of 2001-A - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 25th January, 2008.