Point of Law : Presence or absence of mens rea and/or actus reus would be a determinative factor in imposing damages Under Section 14B, as also the quantum thereof since it is not inflexible that 100 per cent of the arrears has to be imposed in all the cases.

JUDGMENT :

1. Heard Sri Rajesh Tewari, learned counsel for the petitioner and Sri Sachindra Upadhyay, learned counsel for respondent Nos. 1 and 2.

2. This writ petition has been filed seeking quashing of order dated 26.02.2021 passed by respondent No.1 in appeal filed before Appellate Tribunal as well as recovery order dated 02.03.2021 passed by respondent No.2.

3. The facts, as disclosed in the petition, are that the petitioner is a registered society and has been established with an object of popularizing hand woven cloth by helping rural population of the country and to develop Cottage Industry. On 05.01.2021, an order was passed under Section 14-B as well as 7-Q of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter called as "1952 Act") directing for payment of damages and penal interest of Rs.33,73,011/- on the ground that employer has not remitted the Provident Fund and allied dues within stipulated time as per Sections 6, 6A, 6C of 1952 Act and also not deposited the administrative charges for the period 01.4.2017 to 24.02.2020.

4. Against the said order, an appeal was preferred by the petitioner before respondent No.1 on 09.02.2021. The Tribunal on 26.02.2021 required the petitioner to make pre-deposit of the full amount assessed under Section 7-Q of 1952 Act as well as 50% of the amount assessed under Section 14B of 1952 Act. The petitioner is aggrieved by the said order.

5. It has been contended by learned counsel for the petitioner that appeal lies to the Tribunal under Section 7-I of the 1952 Act and orders passed under Sections 7-A, 7-B, 7-C or Section 14-B are only appellable and no appeal lies against the order passed under Section 7-Q. Further Section 7-O mandates deposit of 75% of the amount as determined under Section 7-A of 1952 Act, and thus there is no requirement for pre-deposit for any appeal filed against the order under Section 14B and Section 7Q of 1952 Act. It was further contended that the Appellate Tribunal should have decided the appeal on merit without asking for pre-deposit of the amount as it was against the statutory provisions of Section 7-O of 1952 Act. It was further contended that the Apex Court in case of Arcot Textile Mills Limited vs. Regional Provident Fund Commissioner and others (2013)16 SCC 1 has held that when a composite order is passed under Section 14-B and 7-Q then such an order is appellable and in case the order under Section 7-Q is passed independently, no appeal lies against the said order. Reliance has been placed upon decision of Apex Court in case of Shiv Harbal Research Laboratory vs. Assistant Provident Fund Commissioner, Laws (SC) 2010 (4) 121; SAM (India) Builtwell (P.) Ltd. vs. Assistant Provident Fund Commissioner 2018 (157) FLR 410 and Old Village Industries Ltd. vs. The Asstt. Provident Fund (2005) LLJ 742 Delhi High Court.

6. Sri Sachindra Upadhyay, learned counsel appearing for the respondent defending the order of Tribunal as well as respondent No.2 could not add anything more.

7. Having heard counsel for the parties and perusal of record it appears that the sole question before this Court is to the determination of fact whether in view of provisions, as contained in 1952 Act, any mandatory deposit of 75% of the amount has to be made in view of Section 7-O in appeal filed under Section 7-I against the composite order passed under Section 14-B and Section 7-Q of the 1952 Act?

8. In order to appreciate controversy in issue, a glance of relevant provisions of Sections 7-A, 7-I, 7-O, and 7-Q is necessary. Relevant sections are extracted here as under :

“7A. Determination of moneys due from employers

(1) The Central Provident Fund Commissioner, any Additional Central Provident Fund Commissioner, any Deputy Provident Fund Commissioner, any Regional Provident Fund Commissioner, or any Assistant Provident Fund Commissioner may, by order,--

(a) in a case where a dispute arises regarding the applicability of this Act to an establishment, decide such