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2018 Supreme(Cal) 814
IN THE HIGH COURT OF CALCUTTA
RAJASEKHAR MANTHA, J.
Hindustan Steel Works Construction Ltd. - Appellant
Vs.
Regional Provident Fund Commissioner-II (Damage) and Another - Respondent
Writ Petition No. 22038 of 2016
Decided on : 21-12-2018
Advocate Appeared:
Arijit Chaudhuri, Adv., Arunava Ghosh, Adv., Soumya Majumdar, Adv., Ranajit Talukdar, Adv., Victor Chatterjee, Adv., Shiv Chandra Prasad, Adv., Partha Sarathi Sengupta, Adv.
Delay in assessment is not fatal and can only mitigate the quantum and interest of damages under the EPF & MP Act 1952.
Headnote:
Default - EPF & MP Act 1952 - The court upheld the 7A assessment for willful default in making PF deposits from 1995 to 2005, leading to the consequence of interest and damages under Sections 7Q and 14B of the EPF & MP Act 1952. The court referred to the principles established in previous cases to emphasize that delay in assessment is not fatal and can only mitigate the quantum and interest of damages.
Fact of the Case:
The court dismissed the writ petition as there was willful default in making PF deposits from 1995 to 2005, leading to interest and damages under Sections 7Q and 14B of the EPF & MP Act 1952.
Finding of the Court:
The court upheld the 7A assessment and emphasized that delay in assessment is not fatal and can only mitigate the quantum and interest of damages. The petitioner's financial situation and management takeover by another government company could not stand in the way of the proceedings under the EPF and MP Act of 1952.
Issues: Willful default in making PF deposits, consequence of interest and damages under Sections 7Q and 14B of the EPF & MP Act 1952, and the petitioner's financial situation and management takeover by another government company.
Ratio Decidendi: The court emphasized that delay in assessment is not fatal and can only mitigate the quantum and interest of damages, and that PF dues being statutory dues and those of workmen shall rank above all.
Final Decision: The writ petition stands dismissed with no order as to costs.
RAJASEKHAR MANTHA, J.
1. This matter was being heard along with W.P. No. 26081 of 2015. The result of that proceeding would bearing on the instant proceedings. The said writ petition has been dismissed by this Court on 21st December 2018.
2. Admittedly there has been a willful default on the part of the company in making deposit of PF from 1995 to 2005 and the 7A assessment has been upheld by this Court. Hence the consequence of interest and damages U/S 7Q and 14B of the EPF & MP Act 1952.
3. This Court has in mind the decision of the Hon’ble Supreme Court in the case of Organs Chemical Industries Vs. Union of India Reported in, (1979) 4 SCC 573.
4. In respect of the delay Question or imposition of damages, while approving the Organs decision (supra) in Hindustan Times Ltd. Vs. Union of Indian another reported in, (1998) 2 SCC 242 the Court held at Para 29 as follows:
“29. From the aforesaid decisions, the following principles can be summarised:
The authority under Section 14-B has to apply his mind to the facts of the case and the reply to the show-cause notice and pass a reasoned order after following principles of natural justice and giving a reasonable opportunity of being heard; the Regional Provident Fund Commissioner usually takes into consideration the number of defaults, the period of delay, the frequency of default and the amounts involved; default on the part of the employer based on plea of power-cut, financial problems relating to other indebtedness or the delay in realisation of amounts paid by the cheques or drafts, cannot be justifiable grounds for the employer to escape liability; there is no period of limitation prescribed by the legislature for initiating action for recovery of damages under Section 14-B. The fact that proceedings are initiated or demand for damages is made after several years cannot by itself be a ground for drawing an inference of waiver or that the employer was lulled into a belief that no proceedings under Section 14-B would be taken; mere delay in initiating action under Section 14-B cannot amount to prejudice inasmuch as the delay on the part of the Department, would have only allowed the employer to use the monies for his own purposes or for his business especially when there is no additional provision for charging interest. However, the employer can claim prejudice if there is proof that between the period of default and the date of initiation of action under Section 14-B, he has changed his position to his detriment to such an extent that if the recovery is made after a large number of years, the prejudice to him is of an “irretrievable” nature; he might also claim prejudice upon proof of loss of all the relevant records and/or non-availability of the personnel who were, several years back in charge of these payments and provided he further establishes that there is no other way he can reconstruct the record or produce evidence; or there are other similar grounds which could lead to “irretrievable” prejudice; further, in such cases of “irretrievable” prejudice, the defaulter must take the necessary pleas in defence in the reply to the show-cause notice and must satisfy the authority concerned with acceptable material; if those pleas are rejected, he cannot raise them in the High Court unless there is a clear pleading in the writ petition to that effect.”
5. It therefore follows that interest damages are natural consequence of a default arrangement under Section 7A of the Act. Delay in assessment is not fatal and can only be a factor to mitigate the Quantum and interest of damages.
6. The RPFC shall go on to assess interest U/S. 7Q and damages U/S.14B of the said Act.
7. The writ petitioner could argue that it is in a bad financial situation and that its management has since been taken over by another Government company called “National Buildings Construction Company”. The same however cannot stand in the way of the proceedings under the EPF and MP Act of 1952. Even at the stage of
