Failure to establish sick unit status does not warrant waiver of statutory contributions, interest, and damages under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.

JUDGMENT :

(Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari, to call for the records of the 3rd respondent in Ref.No.TN/R.O/CBE/PDC/CC29/45229/14B Proceedings/2015 dated 03.06.2015 and order of 3rd respondent in Ref.No.TN/R.O/CBE/PDC/CC29/45229/7Q Proceedings/2015 dated 03.06.2015 and quash the same.)

1. The orders passed by the 3rd respondent in proceedings dated 03.06.2015 are under challenge in the present writ petition.

2. The relief sought for in the present writ petition is similar to the relief sought for by the writ petitioner in W.P.No.3301 of 2015 [Tamil Nadu Khadi and Village Industries Board Vs. The Assistant Provident Fund Commissioner], which was decided by this Court on 06.11.2019.

3. The aforesaid order is extracted here under:

The order dated 19.12.2014 passed by the respondent under Sections 14-B and 7-Q of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, is under challenge in the present writ petition.

2. The writ petitioner is the Tamil Nadu Khadi and Village Industries Board.

3. The learned counsel for the writ petitioner-Board made a submission that the writ petitioner-Board had already paid the contributions. However, the interest as well as the damages alone are yet to be paid. The writ petitioner-Board has given permanent status to 68 workers, who all are working in the functioning Soap Units under time scale of pay as the orders of the High Court in W.A.Nos.662 to 664 of 2001 dated 23.11.2009. The Employees' Provident Funds and Miscellaneous Provisions Act, 1952, applies to all permanent employees of the Soap Units. The respondent issued an order on 30.08.2013, directing the writ petitioner-Board to pay the contributions for the period from 04/1983 to 03/2010, a sum of Rs.18,30,968/-. Thereafter, the Assistant Provident Fund Commissioner quantified the interest as well as the damages to be paid and accordingly, directed the writ petitioner-Board to pay a sum of Rs.37,30,960/- as per Sections 14-B and 7-Q of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, for the belated payment of EPF amount.

4. The learned counsel for the writ petitioner-Board further states that the writ petitioner-Board is running at loss and they are not in a position to pay the contributions immediately. However, the writ petitioner-Board is unable to establish that the writ petitioner-Board is a Sick Unit under the provisions of the relevant Statute. In the absence of establishing that an establishment is a Sick Unit, already declared under the Statute, the Court cannot grant any waiver of the statutory contributions or the consequential interest and the damages.

5. This apart, the order passed under Sections 14-B and 7-Q of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, is an appeallable order and an appeal is provided under Section 7-I of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. Thus, the writ petitioner-Board ought to have preferred an appeal before the Appellate Tribunal constituted under Section 7-I of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.

6. Admittedly, no such appeal has been filed by the writ petitioner-Board. Those disputed facts and issues raised with reference to the calculation or otherwise, cannot be adjudicated in a writ proceeding. All such disputed facts are to be adjudicated with reference to the original documents as well as the evidences available and such an exercise cannot be done by the High Court under Article 226 of the Constitution of India.

7. As far as the appeal is concerned, the writ petitioner-Board had not filed any appeal within the time limit prescribed under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and therefore, they themselves have chosen not to prefer any appeal and such a right cannot be now restored by the High Court in view of the elaborate judgment delivered by this Court in WP