JUDGMENT

(Judgment of the Court was delivered by PUSHPA SATHYANARAYANA,J.)

This Writ Appeal is directed against the order, dated 15.06.2012 passed in W.P(MD)No.8027 of 2012.

2.Originally, the said Writ Petition was filed by the appellant/writ petitioner challenging the demand of damages levied by the first respondent in A.T.A.No.797(13)/2011, dated 19.04.2012, which confirmed the order of the second respondent in his proceedings in TN/RO/MDU/6072/RO/Circle.40/PDC/LD/2011, dated 25.02.2011 and to quash the same.

3.The second respondent, who passed the order impugned, had categorically held that the remittance of contribution pertaining to March, 2005 to February, 2007 was made belatedly, therefore, the levy of damages to the tune of Rs.3,66,982/- was made. The same was challenged before the first respondent herein and the first respondent also confirmed the order of the second respondent, which was listed before the learned Single Judge, who had categorically stated that the authority below had considered the case of the appellant in detail and dismissed the Writ Petition. Aggrieved by the same, the above Writ Appeal is filed.

4.The learned counsel appearing for the appellant would contend that the learned Single Judge had not appreciated the facts and circumstances of the appellant's case and that had remitted the entire contribution for the period from March, 2005 to February, 2007. Further, the learned counsel would contend that the final condition of the appellant was so stringent and unable to remit the PF contribution in time for the period between March, 2005 and February, 2007 and the said delay is neither wilful nor wanton.

5.The learned counsel for the appellant also placed his reliance in Regional Provident Fund Commissioner II, Employees' Provident Fund Organization, Madurai and another Vs. Sree Visalam Chit Funds Limited, Palathur and another reported in 2010 (4) LLN 706, in which, paragraph Nos.27 and 30, it has been held as follows:-

“27.Now, let us consider the facts of the case to examine as to whether there was any mens rea or actus reus on the part of the respondent to commit default in payment of the contribution. At the outset, we may say that we do not find any material to hold that there was such mens rea or actus reus. It is the admitted case that under the Pension Scheme of the year 1971, the respondent was paying the contribution without any default. When the new scheme was introduced and the rate of contribution was enhanced, it was not as though the respondent was not prepared to pay the employer's contribution. However, it was only the employees, who rushed to the Court, challenging the new scheme and got an order of interim stay in the Writ Petition filed by them. It was a blanket stay order in respect of the employees contribution as well as the employers' contribution. That was the reason why, the respondent was not in a position to remit the contribution in accordance with the new scheme.

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30.In our considered opinion, as we have already concluded, unless it is established that such failure to pay the contribution was attributable to the mens rea or actus reus on the part of the employer, question of levying damages under Section 14B of the Act does not arise. It has been repeatedly held by the Hon'ble Supreme Court that simply because the statutory provision enables an authority to impose penalty, it does not mean that such penalty should be imposed in a mechanical manner without looking into the attending circumstances and the facts as to whether there was any mens rea or actus reus on the part of the employer.”

6.Reliance was placed on the above decision, which has also been followed by the Division Bench of this Court in M/s.R.D.Ariyakudi Primary Agricultural Co-operative Bank Vs.

Employees Provident Fund Appellate Tribunal reported in 2020 LLR 229, wherein, it has been held in paragraph Nos.7 and 8, which reads as follows:-

“7.A perusal of the orders of the authorities below and th