IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction APPELLATE SIDE Present:

The Hon’ble Justice Shampa Dutt (Paul)

WPA 23925 of 2009 The India Jute & Industries Limited & Anr.

Vs.

The Regional Provident Fund Commissioner & Ors.

For the Petitioners : Mr. Soumya Majumder, Sr. Adv., Mr. Sounak Mukhopadhyay, Ms. Sonia Nandy.

For the P.F. Authority : Mr. Shiv Chandra Prasad.

Hearing concluded on : 27.02.2025 Judgment on : 26.03.2025 Shampa Dutt (Paul), J.:

1. The Petitioners’ case in short is that PF authorities have charged interest of Rs. 45,86,306/- for alleged belated remittance of contributions for the period from 05/2000-03/2004.

2. It is stated that the establishment being a sick industrial undertaking which had accumulated losses was required to deposit PF contributions @10% of wages as per the Notification dated 09.04.1997 with effect from 01.05.1997.

3. It is further stated that the establishment fits into the 1997 notification is an undeniable fact. Therefore, it was required to contribute @ 10%, and not @ 12%.

4. However, it had made excess payment of contributions by depositing @ 12% even after 01.05.1997. It is the case of the petition that assuming there was a delay in the deposit of contributions, the said interest under Section 7Q would automatically decrease if the principal amount of contributions were @ 10% instead of 12%.

5. The petitioners further case is that drawing an analogy from the provisions of Para 26(6) of the EPF scheme, 1952, it is submitted that the employer and the employee have to make a joint request and obtain permission from APFC and higher level officer for making a deposit of contributions above Rs. 15,000/- per month, then on the same analogy, for depositing a higher percentage of contributions, the permission of the authority was a pre-condition. In short, on and from 01.05.1997 contribution @ 12% was a higher contribution for the establishment, without the permission of the competent authority of EPFO.

6. By accepting higher contributions, the EPFO has acted against its own laid down guidelines/circular of notification dated 09.04.1997.

7. Relying on the judgment of the Supreme Court in EPFO vs Sunil Kumar B., reported in (2023) 12 SCC 701, the petitioners states that “the pre-condition of obtaining permission from the APFC was required to be followed for depositing higher contributions”.

8. The petitioners’ prayer for 60 installments to liquidate arrear dues was rejected by the respondent no. 2, in spite of a bank guarantee being issued by the petitioners.

9. The petitioners case therefore is that the amount of interest for Rs.

45,86,306/- should be re-calculated by taking the liability to be 10% during the period from 05/2000-03/2004. The same should be adjusted with the excess contributions paid during the same period. That apart the employees, who had already received their full and final settlement dues from the Trust, are to be disregarded for interest liability.

10. The petitioners have thus prayed for direction upon the respondents to set off/adjust the excess payment made by the establishment with the interest claimed by treating liability to be 10% during the period from

05/2000-03/2004.

11. Vide the order dated 13.11.2009/30.11.2009, the Assistant Provident Fund Commissioner, Sub-regional Office, Howrah passed an order as follows:-

“It reveals from the records that the establishment never approached for lesser rate of P.F. contribution since the registration of the establishment as a sick unit. It has further been recorded that the benefits of 12% P.F contribution along with interest thereon had been paid to the outgoing members of the establishment. The existing employees have also been enjoying the benefits of 12% rate of contribution along with interest thereon and the audit of trust fund has also been completed upto 2007-08 and the accounts slip showing the existing rate of contribution along with interest thereon has been issued to the members. The undersigned has gone through the r