ALLIED ELECTRICALS AND SWITCH FUSES Vs. ASSISTANT PROVIDENT FUND COMMISSIONER EMPLOYEES PROVIDENT FUND ORGANISATION DURGAPUR

JUDGEMENT

(1.) It appears to this Court that by filing this writ petition on 8.1.2003 the petitioners challenged the notice of the Assistant, Provident Fund Commissioner dated 20.12.2002 asking for payment of interest and damages for the belated remittances under sections 7Q and 14B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. According to the petitioners, an application was made by the employees of the petitioner No. 1 on 27.03.1996 for the purpose of availing the facilities of the Provident Fund Scheme and shows willingness to contribute money per month from the salary as per rules and regulations of the authority. Since the authority concerned did not give any heed to such application, on 18..05.1998 the employer made similar application. On 08.12.1999 the authority concerned issued a notice of inspection under section 13 of the Act. Necessary documents were forwarded by the petitioner No. 1 on 17.12.1999. Even as against such inspection an order was passed only on 24.01.2000 by the authority concerned that on the basis of the particulars furnished by the petitioners on 17.12.1999 the petitioner No. 1 is liable to pay the Provident Fund contribution under section 16(1)(d) of the Act. Thereafter, on 05.05.2000 a show-cause notice was issued to pay the contributions from November, 1996 to December, 1999. A reply was given to that claim expressing the facts and circumstances of this case. On 19.02.2001 an order was passed by the authority concerned waiving the employees' shares of contributions from November, 1996 to December, 1999. Thereafter, the authority concerned issued a notice of demand on 14.09.2001 under section 7A of the Act calling upon the petitioners for payment of employers' shares for a sum of Rs. 1,14,237/- within 15 days from the receipt of the demand notice.

(2.) The learned counsel appearing for the petitioners contended that even immediately thereafter within 5.10.2001 the bank account of the petitioner No. 1-company was attached and principal sum being Rs. 1,14,237/- was recovered. By 13.11.2001, the order of attachment was revoked. Thereafter, on 20.12.2002, the impugned notice was issued for recovery of Rs. 1,38,506/- on account of interest and damaged for the period from March, 97 till December, 99 taking the plea of expiry of 15 days from the following month from such period. From the break up, it appears that a sum of Rs. 34,806/- is due on account of interest under section 7Q of the Act and a sum of Rs. 1,03,700/- is due on account of damages under section 14B of the Act. At the end of the particulars, I find a direction has been given to the petitioners to deposit the quantified amount of interest under section 7Q of the Act and so far damages are concerned either by remittance or by availing an opportunity of being heard on the basis of writing immediately fixing for enquiry.

(3.) The learned counsel appearing for the petitioners contended before this Court that unless and until there is a default on the part of the petitioners, there cannot be any liability of payment of interest and/or damages. The petitioners' employees are voluntarily repeatedly requesting from 1996 for the purpose of covering them under the scheme. The authority concerned waived the contribution of the employees for a considerable period. The attachment has been made even without giving any opportunity of hearing and recovered the principal sum as far back as on 5.10.2001. Therefore, without any default, the petitioners will not be penalised for payment of interest and/or damages at this belated stage under the notice dated 20.12.2002. In answer to this, the learned counsel appearing for the Provident Fund Authority contended that as per para 38 of the Employees' Provident Fund Scheme, 1952 payment will be recovered within 15 days of every month meaning thereby if any payment is due and payable for the current month, the 15th of the following month will be the cut off date of recovery. In such case, if any amount is not paid within such period, the authority concerned will be entitled for recovery of interest. The authority is also entitled to recover the damages due to default. He has relied upon a single Bench decisions of this Court reported in 2001(1) CHN 343 (Andrew Yule & Co. Ltd. v. Regional Provident Fund Commissioner & Ors.) under which the question of payment under section 14B was discussed. However, the same stand on a different context. Each case has to be determined on the basis of the situation available before the Court. The learned counsel appearing for the authority concerned very much relied upon different paragraphs of the Scheme 1952, i.e. paras 30, 32, 32A and 38.