The Travancore Sugars & Chemicals Ltd. v. Epf Appellate Tribunal & Another

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 12TH DAY OF MARCH 2015/21ST PHALGUNA, 1936 WP(C).No. 147 of 2011 (P) -------------------------- PETITIONER(S):

-------------------------- THE TRAVANCORE SUGARS & CHEMICALS LTD., VALANJAVATTOM, THIRUVALLA, PATHANAMTHITTA DISTRICT REPRESENTED BY ITS GENERAL MANAGER (P&A) SHRI.T.S.AKBAR KHAN.

BY ADVS.SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH RESPONDENT(S):

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1. EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, SCOPE MINAR, CORE II 4TH FLOOR, LAXMI NAGAR DISTRICT CENTRE, LAXMI NAGAR NEW DELHI-110 092.

2. THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND, ORGANISATION SUB REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, PATTOM THIRUVANANTHAPURAM-695 004.

BY ADV. SMT.T.N.GIRIJA, SC,EPF ORGANISATION BY ADV. SRI.N.N. SUGUNAPALAN, SC, P.F.

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-03-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No. 147 of 2011 (P) APPENDIX EXHIBITS P1TRUE COPY OF THE NOTICE DATED 25.09.2004 ISSUED BY R2 PROPOSING LEVY OF DAMAGES P2TRUE COPY OF THE ORDER DATED 3.1.2005 PASSED BY R2 ASSESSING DAMAGES UNDER SECTION 14B OF THE ACT. P3TRUE COPY OF THE APPEAL PETITION ATA NO.68 (7) 2005 (WITHOUT ITS ANNEXURES) DATED 18.1.2005 P4TRUE COPY OF THE ORDER DATED 18.11.2010 IN ATA NO.68 (7) 2005 P5TRUE COPY OF THE ORDER OF THE TRIBUNAL IN ATA NO752(7) 2003 DATED 22.10.2010 FILED BY THE OTHER PLANTATION COMPANY P6TRUE COPY OF THE ORDER IN WP.21195/2008 DATED 15.7.2008 //True Copy// P.S. To Judge

K.VINOD CHANDRAN, J - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 147 of 2011 - - - - - - - - - - - - - - - - Dated 12th March, 2015 - - - - - - - - - - - - - - - - - - - - - - - -

JUDGMENT

The petitioner is aggrieved by Ext.P2 order passed under Section 14B of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (EPF & MP Act), which the Appellate Authority refused to interfere with, as is indicated in Ext.P4. The only issue is as to whether the financial stringency can be a mitigating factor in considering the impositin of damages under Section 14B. The issue is no longer res integra. A Division Bench of this Court has held in Regional Provident Fund Commissioner v. Harrisons Malayalam Ltd. (2013 (3) KLT 790), that it would be a mitigation; to be considered on facts; by the Original Authority.

2. However, the learned Standing Counsel

WP(C).147/11 would specifically point out that, but for making a blank statement that financial difficulty was the reason for non-payment of contribution, no substantiating material was produced. The said contention has to be considered in the perspective of the law as it stood at that point of time. The authorities as also the assessees were under the belief that financial stringency would not be a mitigation under Section 14B. The said belief has now been overturned by the afore cited decision.

3. In the above circumstances, the fact that no substantiating materials were produced is not a compelling reason for this Court to stay its hands from interfering with the impugned orders. Definitely, an opportunity has to be given to the petitioner, a completely owned Government of Kerala undertaking, which was allegedly facing stringent financial crisis

WP(C).147/11 during the period in which the default occurred.

4. In such circumstances, Exts.P2 and P4 orders would stand set aside. Petitioner shall appear before the authority within a period of three weeks from today and on production of the certified copy of this judgment, petitioner shall be granted a month's time to produce sufficient material to substantiate their contention. On production of such materials, the Assessing Authority, after affording an opportunity of hearing to the petitioner, shall consider the matter finally within a period of four months from the date of hearing.

The writ petition is disposed of. Parties shall suffer their respective costs.

Sd/- K.VINOD CHANDRAN Judge Mrcs //True Copy//