NAVNILAL K SHAH Vs. UNION OF INDIA

JUDGEMENT

(1.) HEARD the learned Advocates for the parties. Perused the records.

(2.) THE petitioner challenges the order dated 20th October, 2000 passed by the Regional Provident Fund Commissioner, Maharashtra and Goa, imposing the damages for the period prior to February, 1992 as also the percentage of the damages and fixation of the compound rate of interest for the pre-discovery period.

(3.) THE challenge to the impugned order is three fold. Firstly, that it is the scheme as it exists at the time of determination of damages that has to be applied for the purpose of computation of damages irrespective of the period for which the damages are to be computed and, therefore, it was not permissible to the Regional Provident Fund Commissioner to apply the guidelines under the scheme which were in force prior to the date of the decision in relation to the computation of damages. Secondly, bearing in mind the provisions of law and the explanation issued by way of circulars by the Government, the pre-discovery period would extend upto the date on which the applicability of the Employees' Provident Funds and Miscellaneous Provisions act, 1952, hereinafter called as "the said Act", is conclusively made known to the establishment to which the Act is said to be applicable and the damages for such period cannot be levied since there cannot be a constructive default in relation to such period in the absence of applicability of the Act being conclusively made known to the establishment and the loss to the fund on account of delay can be compensated only by way of ordering payment of simple interest on the contribution so delayed. Thirdly, once the authorities in an inquiry under section 7-A of the said Act determines the pre-discovery period, it is not permissible for the authorities under the said Act to review or modify such period at the time of mere computation of either interest or damages payable for such period. Reliance is placed in the decisions of a Division bench of this Court in (Union of India and others v. Super Processors), reported in 1993 (1) C. L. R. 457, and of the learned Single Judge of Calcutta High Court in the matter of (Aluminimum Corporation of India (Ltd.) v. Regional Provident Fund. Commissioner and others), reported in 1959 (I) L. L. J. 249. An attention is also drawn to the circular issued under Letter No. R-l1025 (25)/87/ss-II dated 6th October, 1989 on the subject of waiver of recovery of the employees' share to the regional provident fund which was not deducted from the wages of the employees.