IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 28^TH DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943 WP(C) NO. 25266 OF 2014 PETITIONER/S:

EMPLOYEES PROVIDENT FUND ORGANIZATION KOTTAYAM - 686 001; REP. BY THE ASST. P.F.COMMISSIONER, MATHEW PALACKAL ABRAHAM.

BY ADV SRI.JOY THATTIL ITTOOP RESPONDENT/S:

1 M/S. THENGAKKAL ESTATE PVT.LTD.

VANDIPERIYAR, IDUKKI - 686 001.

2 THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL SCOPE MINAR, 4TH FLOOR, CORE -II, LAXMI NAGAR DISTRICT CENTRE, NEW DELHI - 110 001.

BY ADV SRI.N.JAMES KOSHY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

28.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Ext.P6 order dated 10.6.2014 of the Employees Provident Fund Appellate Tribunal has been challenged in the present writ petition.

2. Petitioner is Employees Provident Fund Organization.

Since the first respondent,Thengakkal Estate Pvt. Ltd., an establishment covered under the provisions of the Employees Provident Fund Act, 1952, did not remit the contributions under three schemes as per the provisions of para 38 of the Employees Provident Fund Scheme, 1952 for the period June 1992 to August 1997 and August 1997 to April 2003, the damages under Section 14B of 1952 was levied by the petitioner vide order dated

27.11.2000 to the tune of Rs.47,52,253/-.

3. First respondent preferred an appeal before the Tribunal. Tribunal without considering the contentions raised by the organization allowed the appeal with a direction to assess the dues @ 5% of the actual damages levied under the impugned orders, Ext.P6.

4. Learned counsel representing the petitioner submitted that the 2^nd respondent had no authority to remand the matter with a direction to assess the dues as aforementioned, as the power to reduce or waive the damages levied under Section 14B is with the Central Board of Trustees in respect of an establishment being a sick industrial company and in respect of which a scheme for rehabilitation had been sanctioned by the Board for Industrial and Financial Reconstruction established under Section 4 of the Sick Industrial Companies (Special Provisions Act, 1985 (1 of 1986). The 2^nd respondent ought to have found that the financial hardships alone cannot be a valid ground to reduce/waive the damages. The 2^nd respondent had failed to appreciate that the establishment has been a continuous defaulter in making payments and contributions. In case of default in the contributions, proceedings under Section 14B and 7 Q of the Act is sine qua non. Orders Ext.P1 and P2 imposing damages were passed in accordance with law in as much as that an opportunity of hearing was afforded to the petitioner but the respondent No.1, which was not availed of as they refused to appear on the dates ie., on 23.2.2006, 15.3.2006. The hearing was adjourned from time to time ie., 4.7.2006 and 26.7.2006. In support of the aforementioned submissions, relied upon the judgment of the Supreme Court in Horticulture Experiment Station Gonikoppal, Coorg v. The Regional Provident Fund Organization (2022 Livelaw (SC) 202) rendered in various Civil Appeals wherein held that any default or delay in the payment of EPF contribution by the employer under the Act is a sine qua non for imposition of levy of damages under Section 14B of the Act and mens rea or actus reus is not an essential element for glimpsing penalty/damages for breach of civil obligations/liabilities and another judgment of the Madras High Court in the Assistant Provident Fund Commissioner v. The Employees Provident Fund Appellate Tribunal and another, the discretion to be exercised cautiously and restrictively as the power of discretion provided under the proviso clause to Section

14B of the Act clearly states that the reason must be recorded.

5. On the other hand, learned counsel for the respondent submitted that M/s Ram Bahadur Thakur Limited (hereinafter referred to as 'RBT Ltd.') owned 9 tea estates in the State of Kerala namely, M