AFR THE EXECUTIVE ENGINEER Vs. PRESIDING OFFICER

JUDGEMENT

(1.) The erstwhile Orissa State Electricity Board (in short 'OSEB') was constituted under the provisions of Section 5 of the Electricity Supply Act, 1948. The employees working in the OSEB were coming under the Employees' Provident Fund Scheme. The OSEB and its divisions were paying the employees' and employers' share, as per the provisions of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (for short "E.P.F. and M.P. Act, 1952"). Owing to delay in depositing the provident fund dues of the employees working in different divisions, payments were made through the headquarters office directly to the Regional Provident Fund Commissioner. On introduction of the pension regulation, namely, Orissa State Electricity Board Employees' Pension (Including Old Age and Family Pension) Regulation, 1992 for its employees w.e.f. 01.04.1990, the OSEB was exempted from the purview of E.P.F. and M.P. Act, 1952 w.e.f. 01.04.1990.

(2.) Mr. B.K. Nayak, learned counsel for the petitioner strenuously urged that the Commissioner has imposed penalty without considering the fact that after long lapse of 14 years notice was issued under Section 14-B of the EPF and MP Act, 1952 for the alleged default committed during the period 1988- 89 to 1990-91 without assigning any reason whatsoever. Therefore, the very initiation of proceeding at belated stage, cannot sustain in the eye of law. To substantiate his contention, he has relied upon the judgment of this Court in M/s Orissa Forest Development Corporation Ltd. and another v. Regional Provident Fund Commissioner, Orissa Sub Regional Office, Rourkela, 1995 (I) OLR 116. It is further contended that in view of the provisions contained under Section 14-B of the Act, where an employer makes default in payment of any contribution, the Commissioner may recover the same by way of penalty for such damages. If the employer furnishes sufficient cause for delay, the authority in a given case may not levy damages in view of the ratio decided by this Court in M/s. Bhubaneswar City Distribution Division v. Union of India and another, 85 (1998) CLT 198.

(3.) Mr. S.S. Mohanty, learned counsel for the opposite party-Provident Fund Commissioner strenuously urged that exemption of OSEB from the purview of the EPF and MP Act, 1952 w.e.f. 01.04.1990 has been admitted and, accordingly, a speaking order has been passed under Section 14-B of the Act and levy has been done during the period from 1989 to 01.03.1990. It is stated that the appellate tribunal by the impugned order has remitted the matter back to the Regional Provident Fund Commissioner for recalculation and, as such, no fault can be found with the same. It is further contended that the delay in levying the damages does not amount to waiver of rights nor the proceeding is vitiated on account of delay or laches. The amount of assessment is not affected by the delay in proceeding rather it depends upon in making default in payment and delay in remittance of dues by the employer. As per Section 17-B of the Act, in case of transfer of establishment, the employer to whom the establishment is transferred shall jointly and severally be liable to pay the contribution and other dues under the provisions of the scheme. The imposition of penalty having been done by giving adequate opportunity to the petitioner establishment after prolonged inquiry, the order so passed by the authority is wholly and fully justified, which does not warrant any interference by this Court. To substantiate his contention, he has relied upon the judgment of the apex Court in M/s Hindustan Times Ltd. v. Union of India and others, AIR 1998 SC 668.