SAONER TALUKA GINNING, PRESSING AND DAL MILL PRAKRIYA SAHAKARI SANSTHA, SAONER Vs. REGIONAL PROVIDENT FUND COMMISSIONER, BOMBAY

JUDGEMENT

(1.) BY this writ petition filed under Article 226 of the Constitution the petitioner is seeking to challenge legality and correctness of the order passed by the respondent Regional Provident Fund Commissioner on April 28, 1989 ordering damages for delayed payment amounting to Rs. 43,605.15 and further directing the petitioner to pay the said amount within 15 days on receipt of the order. Mr. Dastane, the learned counsel for the petitioner, has raised two -fold contentions in support of the writ petition. Firstly Mr. Dastane contended that initiation of the proceedings by the respondent under Section 14 -B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for short 'the Act of 1952') was grossly belated inasmuch as the damages were sought to be imposed for the defaults for the months of January 1973 to September 1982. In this connection Mr. Dastane placed reliance on the decision in K. T. Rolling Mills Pvt. Ltd. v. R. M. Gandhi and others : (1994)ILLJ66Bom . The second contention of Mr. Dastane, learned counsel for the petitioners is that by the circular issued by the authorities on November 3, 1982 the maximum levy of arrears could have been to the tune of 25% and therefore the levy of damages exceeding 25% was bad in law and in this connection Mr. Dastane, relied on the decision of this Court in Super processors vs. Union of India 1992 Mh. L.J. 809.

(2.) PER contra Mr. Sundaram, learned counsel for the respondent, strenuously urged that the notice issued to the petitioner on May 26, 1998 for defaults for the months of January 1973 to September 1982 cannot be said to be grossly delayed or belated, and in any case on that ground alone the damages levied by the Regional Provident Fund Commissioner cannot be quashed. Mr. Sundaram submitted that the decision in the case of K.T. Rolling Mills has been reversed by the Supreme Court in Civil Appeal No. 1639 of 1994, Regional Provident Fund Commissioner v. M/s K. T. Rolling Mills Pvt. Ltd. (since reported in : (1995)ILLJ882SC vide judgment dated November 22, 1994. He placed on record a Photostat copy of the judgment of the Supreme Court in that connection. Mr. Sundaram also contended that the Circular dated November 3, 1982 relied upon by the learned counsel for the petitioner has no application in the present case because subsequently the clarification was made by the Commissioner by the subsequent Circular dated May 13, 1983 and the judgment of this Court in Super Processor's case has no application in the facts and circumstances of the present case.

(3.) THE Regional Provident Fund Commissioner (for Short 'the Commissioner') heard the arguments and after going through the record of the case held that merely because the employer was seasonal factory, it was not open to the employer to commit breach of the provisions of the Act of 1952. The Commissioner held that the employer was required to make compliance under the Labour laws and therefore the contentions that there was financial difficulty and that it was co -operative sector were irrelevant. In the facts and circumstances the Commissioner imposed the damages at the following rates. 1. For the period - @ 25% 1/73 to 7/73 of the dues 2. For the period 10/73 - @ 60% of the dues 3. For the period - @ 50% 12/73, 5/75, 6/76 of the dues 11/75 4. For the period 3/74 - @ 100% to 4/75, 6/75 to of the dues 10/75, 12/75 to 5/76, 7/76 to 6/77, 7/77, to 3/78.2/81 to 9/82.