BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20.02.2025 CORAM:

THE HONOURABLE MR.JUSTICE MUMMINENI SUDHEER KUMAR W.P.(MD) No.12974 of 2016 and W.M.P.(MD) No.9772 of 2016 The Regional Provident Fund Commissioner Employees Provident Fund Organization P.B.No.588, Sree Complex, 'D' Block No.18, Madurai Road, Tiruchirapalli ... Petitioner -vs-

1.The Presiding Officer Employee's Provident Fund Appellate Tribunal Scope Minor, Core II, 4th Floor Lakshmi Nagar District Centre Lakshmi Nagar, New Delhi

2.M/s.Tamil Nadu Asbestos (Pipes)

(A Unit of Tamil Nadu Cement Corp. Ltd.)

Mayanur, Karur District-639 108 rep.through its Deputy General Manager / Unit – Head ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a writ of certiorarified mandamus to call for the records relating to the order passed by the first respondent in A.T.A.No.442(13)2012, dated 04.03.2013 and quash the same as unconstitutional and consequently direct the second respondent to pay the damages as Proceedings No.SDC/TN/TRY/19983/Circle-24/SRO-TRY/2011, dated 26.04.2012, within a time frame as fixed by this Court.

For Petitioner : Mr.I.Pinaygash For Respondents : R1 – Tribunal Mr.A.Sivaji for R2

O R D E R

This writ petition has been filed by the Employees Provident Fund Organisation questioning the order dated 04.03.2013, passed in A.T.A.No. 442(13)2012, on the file of the Employees' Provident Fund Appellate Tribunal, New Delhi, whereby the appeal filed by the second respondent herein was allowed by placing reliance upon a decision of the Honourable Apex Court in the case of Employees' State Insurance Corporation vs. HMT Ltd., and another, reported in (2008) 3 SCC 35, on the ground that there was no willful default on the part of the second respondent in remitting the provident fund contributions belatedly and there is no finding recorded by the petitioner holding that the second respondent has willfully and deliberately withheld the provident fund contributions.

2. As a matter of fact, the above referred decision was overruled by the subsequent decision of the Honourable Supreme Court in the case of Horticulture Experiment Station vs. Provident Fund Organisation, reported in (2022) 4 SCC 516 and thereafter, a Full Bench of this Court, having taken note of the said decision i.e., the decision in the case of Horticulture (cited supra), by a common Judgment dated 03.06.2024, passed in W.P.(MD) Nos.7339, 9688 of 2013, 2765 & 2782 of 2014, has laid down certain guidelines in Paragraph No.39 in the matter of deciding the liability under Section 14B of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (in short, “the Act, 1952”). Paragraph No.39 of the said decision reads as under:

39.Therefore, following the principles reiterated by the Hon'ble Supreme Court and different High Courts including our High Court in similar circumstances, this Court hold that Section 14B of the Act is an enabling provision and it does not envisage any compulsion to levy damages in all cases, and is inclined to frame the following guidelines:-

(i) Before levying damages in terms of Section

14B of the Act, every authority is required to follow principles of natural justice. The particulars of the default, period, etc., and every adverse information that may be relied upon for levying damages should be indicated or furnished to the employer and a fair opportunity should be given to the employer to put forth his case in defence to the proposed action.

(ii) The authority, while exercising power under Section 14B, shall keep in mind that the liability as per the table given in Para 32A of the Scheme, should be treated as upper limit within which damages can be levied for the delay in making contributions by the employer.

(iii) In appropriate cases where the employer is able to provide sufficient reasons or cause justifying the delay with verifiable materials, the authority is competent to waive or fix the quantum of damages less than what is sho