AGLOWMED LTD. Vs. APFC MUMBAI

JUDGEMENT

(1.) THE appeal is filed against the Order dated 19 -10 -2011 passed by the APFC. Mumbai (in short "Commissioner") under Section 14 -B and 7Q of the Employees' Provident Funds and Miscellaneous Act, 1952 (here in after referred to as the 'Act') levying damages and interest on account delayed remittance of PF dues.

(2.) THE undisputed facts of the case are that the appellant defaulted in remittance of PF does and consequently the Ld. Commissioner initiated proceedings under Section 14B of the Act. The appellant contested the proceedings and submitted that (a) the damages should be imposed only to the extent the PF department suffered losses on account of delayed remittance of PF dues, (b) the appellant has remitted the employee's share of contribution, therefore, the damages should not be levied being dual penalty, (c) Section 14B does not provide for mandatory levy of damages, therefore, in this case no damages should be levied, (d) the quantum of damages should be determined with reference to the mitigating factors assigned by the appellant, (e) damages should not be levied at the old rates but new rates are to be followed, and (f) the delay in remittance of dues was not willful and unintentional. The Ld. Commissioner considered the submissions made by the appellant and levied the damages by holding that (i) payment of employee's share is not a mitigating factor, (ii) the appellant establishment is not referred to BIFR for rehabilitation, therefore, cannot be considered a sick establishment, (iii) financial difficulties is no ground for waiver of damages, (iv) Para 32A of the EPF Scheme states the rates at which damages are to be levied and there is no bar from levying the maximum amount of damages envisaged therein, (v) the provisions of Section 14B of the Act makes mandatory provision and the judicial decision rendered in the case of M/s. Hi -tech Vocational Training Centre Vs. RPFC is referred to the Legal Cell of the PF department and appropriate action is being taken to file defense in the matter, (vi) the revised rates of damages are operative with effect from 26 -09 -2008 prospectively, (vii) the Act is a statutory enactment and the liability imposed on the employer is strict liability. Hence, the claim that there was no willful or deliberate intention on the part of the employer is not a valid defense.

(3.) THE learned Advocate for the respondent Commissioner has supported the impugned order stating that, the PF authority has levied the damages after providing reasonable opportunities to the appellant to represent his case, and after hearing the appellant the damages was imposed. Hence, requested this Appellate Tribunal to uphold the impugned order passed by the respondent.