Standard Furniture (Unit Os Sudarsan Trading Co. Ltd). v. Registrar, EPF Appellate Tribunal Employees Provident Fund Appellate Tribunal
2020-06-24
A.M.SHAFFIQUE, GOPINATH P.
body2020
DigiLaw.ai
JUDGMENT : Gopinath, J. The appellant is the petitioner in W.P.(C)No.26211/2014. That Writ Petition was filed challenging an order dated 22.12.2009, by which an appeal filed by the appellant before the Employees' Provident Fund Appellate Tribunal was dismissed for non-prosecution. The appeal was filed challenging an order imposing damages under Section 14B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the 'Act'). Though the appellant applied for restoration of the appeal, that application was also dismissed on the ground that the said application itself was filed almost four years after the appeal was dismissed for non-prosecution. The learned Single Judge dismissed the Writ Petition noticing the fact that the appellant had earlier approached this Court through a Writ Petition numbered as W.P.(C)No.35167/2005, which was disposed of on 16.12.2005 directing that the appeal filed by the appellant shall be heard and decided by the Appellate Tribunal within four months from the date of receipt of a certified copy of the judgment and further directing that recovery proceedings shall be kept in abeyance, pending disposal of the appeal. The learned Single Judge found that the appellant had no case that the judgment of this Court in W.P.(C)No.35167/2005 was produced before the Appellate Tribunal and further found that the appellant had enjoyed the benefit of the stay for all these years and had no real interest in prosecuting the appeal filed before the Appellate Tribunal, on merits. Being aggrieved by the judgment of the learned Single Judge, the appellant has filed the present appeal. 2. We have heard Sri. Raveendra Prasad, the learned counsel appearing on behalf of the appellant and Sri. Thomas Mathew Nellimoottil, the learned Standing Counsel appearing for the Provident Fund Organization. We would normally be required only to examine the question as to whether the appeal should be restored to file or not. However, after hearing the learned counsel for the appellant and the respondents at length we find that the original order against which the appeal was preferred is illegal as we will shortly demonstrate. It does not disclose the consideration of any relevant material for concluding that damages have to be levied under Section 14B of the Act. We are of the view that no purpose would be served by directing the restoration of the appeal.
It does not disclose the consideration of any relevant material for concluding that damages have to be levied under Section 14B of the Act. We are of the view that no purpose would be served by directing the restoration of the appeal. The absence of reasons in the original order cannot be cured even if the appellate authority were to supply any reasons. The Supreme Court in Institute of Chartered Accountants of India v. L.K. Ratna (1986) 4 SCC 537 held as follows:- “And, therefore, it seems to us, there is manifest need to ensure that there is no breach of fundamental procedure in the original proceeding, and to avoid treating an appeal as an overall substitute for the original proceeding.” (Also, see Oryx Fisheries (P) Ltd. v. Union of India, (2010) 13 SCC 427 ). Further, restoration of the appeal will only lead to multiplicity of proceedings. 3. Ext.P2 is the order which was challenged by filing an appeal before the Appellate Tribunal. Ext.P2 is an order dated 1.6.2004 imposing damages under Section 14B of the Act. An amount of Rs.9,93,386/-has been imposed as damages for the period from January 1996 to June 2002. It is admitted before us that the contributions payable in terms of the provisions of the Act have already been remitted by the appellant. It is also not disputed that interest in terms of Section 7Q of the Act has also been remitted. We find that Ext.P2 is an order issued in printed form and the only reason stated for imposing damages is the following:- “Sri. P. Sadasivan, Advocate on behalf of the establishment appeared. The learned Counsel accepted the delay in remitting the Provident Fund dues for the period upto (R/M)06/2002.” There is no consideration of any other aspect in imposing the damages levied under Ext.P2. The learned counsel for the appellant would contend referring to Ext.P12 that the appellant had paid a total sum of Rs.6,20,000/-towards penal damages and interest for the period from April 1995 to January 2000. This, is admitted in paragraph 5 of the additional counter affidavit dated 10th March 2015 filed on behalf of the Employees' Provident Fund Organisation, The employees' Provident Fund Organisation has also filed an additional counter affidavit dated 29.1.2016 in which, in paragraph 16, it is stated thus : “(16) The contentions in ground J of the writ appeal are false and baseless.
The fact is that an amount of Rs.9,93,386/-is still outstanding from the establishment. The amount of Rs.6,20,000/-stated to have been remitted by the appellant on 8-3-2004 at SBI has already been accounted. It is the damages and interest for the period 04/1995 to 01/2000. The details of remittance of Rs.6,20,000/-on 8-3-2004 at SBI Account towards 14B and 7Q interest is as furnished below:- 1 14B order dated 14-6-2000 4/95 to 03/97 Rs.1,75,696/- 2 14B order dated 29-12-2000 4/95 to 01/00 Rs.4,91,088/- 3 7Q order dated 29-5-2001 08/97to 01/00 Rs. 56,606/- Total Rs.7,23,390/- ============ Amount remitted on 29-5-2001 Rs.1,00,000/- Amount remitted on 8-3-2004 Rs.6,20,000/- Amount remitted on 4-6-2004 Rs. 3,390/- Total Rs.7,23,390/- ========== The overlapping is seen in the period of levy of damages is due to the reason that the employer has remitted the dues for the same period in installments on different dates.” It is the specific case of the appellant before us that the establishment in question went through a series of troubles and on account of the unforeseen financial crisis, the establishment was practically shut down from 7.11.2011. It is stated that, through a settlement dated 15.3.2003, a copy of which is on record as Ext.P1 in the Writ Petition, all the employees were treated as having left the service of the establishment on 31.12.2002, after paying all amounts agreed upon between the establishment and the employees in question. 4. It is settled law that the levy of damages under Section 14B of the Act is not automatic and that all the circumstances which led to the delay in remitting the Provident Fund contributions have to be factored by the authorities concerned before issuing an order under Section 14B. In this regard, the learned counsel for the appellant would place reliance on a judgment of this Court reported in M/s. Sreekamakshy Agency Pvt. Ltd. v. Employees Provident Fund Appellate Tribunal and another (2013(2) ILR (Ker.) 158) which is a judgment rendered by one among us (A.M. SHAFFIQUE J.). Our attention is also drawn to the fact that the judgment of the learned Single Judge in Sreekamakshy Agency Pvt. Ltd' s case (supra) has been affirmed by a Division Bench of this Court in the decision reported in Employees Provident Fund Organisation v. Sreekamakshy Agency (Pvt.) Ltd. ( 2013 (2) KLT 996 ).
Our attention is also drawn to the fact that the judgment of the learned Single Judge in Sreekamakshy Agency Pvt. Ltd' s case (supra) has been affirmed by a Division Bench of this Court in the decision reported in Employees Provident Fund Organisation v. Sreekamakshy Agency (Pvt.) Ltd. ( 2013 (2) KLT 996 ). The learned counsel for the appellant would also place reliance on another judgment of a Division Bench of this Court in Regional Provident Fund Commissioner v. Harrisons Malayalam Ltd. ( 2013 (3) KLT 790 ), which also takes the view that the provisions of Section 14B make it clear that the authority has to take into consideration the circumstances which led to the delay in payment of provident fund contribution. 5. While examining Ext.P2, we cannot, but observe, that the said order was passed in an extremely casual manner, in printed form and without taking into account any circumstance which may have led to the delay in making remittances in time. As we have already noticed, the only reason specified in Ext.P2 was that the learned counsel for the establishment had admitted that there were delays in making remittances of provident fund dues. That apart, we must once again notice that Ext.P2 covers the period from 01/1996 to 06/2002. If that be so, the remittances made for the period from 4/1995 to 1/2000 through Ext.P12 (that fact being admitted through the averments in the affidavits filed in this Court) also should have been taken into consideration while quantifying the damages payable since a substantial portion of the period in respect of which Ext.P2 has been issued seems to be covered by the period for which the damages were remitted through Ext.P12. We cannot accept the case of the Provident Fund Organisation as now put forth through its counter-affidavits filed in this Court that the amounts claimed in Ext.P2 are over and above the amounts remitted under Ext.P12. It is settled law that the authorities cannot improve or supply reasons to prop up an impugned order through a counter-affidavit. Reasons have to be set out clearly in the order itself. An order without reasons cannot be sustained in law.
It is settled law that the authorities cannot improve or supply reasons to prop up an impugned order through a counter-affidavit. Reasons have to be set out clearly in the order itself. An order without reasons cannot be sustained in law. While examining the correctness of an order passed by the Advocate General under Section 92 of the Code of Civil Procedure a 5 Judge bench of this Court in Mayer Simon v. Advocate General of Kerala ( AIR 1975 Ker 57 ) (at page 66) held:- “37. ............... When the persons who approach the Advocate-General come before the Court and complain that they are personally aggrieved the Court is certainly entitled to know why the consent had been refused by the Advocate-General. The matter of refusal of consent therefore clearly stands on a footing quite different from a case where consent had been granted by the Advocate General. The Court must be satisfied in all cases of refusal that the mind of the Advocate-General had been fairly and dispassionately applied to the relevant facts before him. The only way of knowing it is by reading the order in the light of the facts and materials that were before him. So, the order must indicate that mind had been applied to those facts and materials. Where those facts and materials indicate a prima facie case, the order should show why they were not accepted and the consent was refused. In this particular case, the prior dissensions in the trust, the clamour for management, the methods adopted for getting the position of trustees, or manoeuvreing to get into that position, and the allegations of breach of trust of a serious nature all indicate prima facie that all was not well with the affairs of the trust. So the order should have been a speaking order and reasons for refusal should have been discernible from it. If no reasons at all are seen, as in this case, we can only term the order as the Supreme Court did in (1972) 4 SCC 730 : AIR 1972 SC 2083 , as an arbitrary one. The order does not indicate anything.
If no reasons at all are seen, as in this case, we can only term the order as the Supreme Court did in (1972) 4 SCC 730 : AIR 1972 SC 2083 , as an arbitrary one. The order does not indicate anything. But for the fact that the Full Bench decision of this Court in AIR 1962 Ker 90 might have influenced the Advocate-General in not giving reasons, the ruling in the House of Lords in Padfield's case, (1968) 1 All ER 694 would have been attracted. Applying the principles of the decision of the Supreme Court in (1972) 4 SCC 730 : AIR 1972 SC 2083 and in (1972) 3 SCC 156 : AIR 1971 SC 1599 and of the House of Lords in Padfield's case, (1968) 1 All ER 694, we have to set aside the order, Ext. P-3.” In Siemens Engg. & Mfg. Co. of India Ltd. v. Union of India, (1976) 2 SCC 981 the Supreme Court observed:- “6. Before we part with this appeal, we must express our regret at the manner in which the Assistant Collector, the Collector and the Government of India disposed of the proceedings before them. It is incontrovertible that the proceedings before the Assistant Collector arising from the notices demanding differential duty were quasi-judicial proceedings and so also were the proceedings in revision before the Collector and the Government of India. Indeed, this was not disputed by the learned Counsel appearing on behalf of the respondents. It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N.M. Desai v. Testeels Ltd. [ C. A. No. 245 of 1970, decided on December 17, 1975] . But, unfortunately, the Assistant Collector did not choose to give any reasons in support of the order made by him confirming the demand for differential duty. This was in plain disregard of the requirement of law. The Collector in revision did give some sort of reason but it was hardly satisfactory.
But, unfortunately, the Assistant Collector did not choose to give any reasons in support of the order made by him confirming the demand for differential duty. This was in plain disregard of the requirement of law. The Collector in revision did give some sort of reason but it was hardly satisfactory. He did not deal in his order with the arguments advanced by the appellants in their representation dated December 8, 1961 which were repeated in the subsequent representation dated June 4, 1965. It is not suggested that the Collector should have made an elaborate order discussing the arguments of the appellants in the manner of a Court of law. But the order of the Collector could have been a little more explicit and articulate so as to lend assurance that the case of the appellants had been properly considered by him. If courts of law are to be replaced by a administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative Law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. The Government of India also failed to give any reasons in support of its order rejecting the revision application. But we may presume that in rejecting the revision application, it adopted the same reason which prevailed with the Collector. The reason given by the Collector was, as already pointed out, hardly satisfactory and it would, therefore, have been better if the Government of India had given proper and adequate reasons dealing with the arguments advanced on behalf of the appellants while rejecting the revision application.
The reason given by the Collector was, as already pointed out, hardly satisfactory and it would, therefore, have been better if the Government of India had given proper and adequate reasons dealing with the arguments advanced on behalf of the appellants while rejecting the revision application. We hope and trust that in future the customs authorities will be more careful in adjudicating upon the proceedings which come before them and pass properly reasoned orders, so that those who are affected by such orders are assured that their case has received proper consideration at the hands of the Customs Authorities and the validity of the adjudication made by the Customs Authorities can also be satisfactorily tested in a superior tribunal or court.” (Emphasis is ours) 6. We have found that substantial amounts have already been levied as damages for the period from April 1995 to January 2000. Ext.P2 order states that the damages levied by that order relate to the period from 1/1996 to 6/2002. We think that the damages already levied and collected in respect of a substantial portion of a period in respect of which Ext.P2 has been issued will be sufficient penalty, in the light of the fact that the establishment has been completely closed down and taking into account the fact that all the employees have already been terminated from service based on Ext.P1 settlement, which was entered into as early as on 15.3.2003. We also note that the appellant has admittedly remitted all defaulted payments as well as interest under Section 7Q of the Act. Any further demand through Ext.P2 on account of damages under Section 14B will be illegal and arbitrary especially since Ext.P.2 does not disclose any reasons. 7. Before we part with this judgment, we must caution the respondents from passing orders using standard printed forms especially when they exercise quasi-judicial functions. Various factors have to be adjudicated before levying penalty under Section 14B, in the light of the law laid down by this Court in the decisions referred to above. Printed forms are, obviously, unsuited for this purpose. We direct the respondents to ensure that the practice of using printed standard forms to issue orders in the nature of Ext.P2 is stopped forthwith. 8. We, allow this appeal by setting aside the judgment of the learned Single Judge. We quash Ext.P2 order and all consequential proceedings emanating there from.
Printed forms are, obviously, unsuited for this purpose. We direct the respondents to ensure that the practice of using printed standard forms to issue orders in the nature of Ext.P2 is stopped forthwith. 8. We, allow this appeal by setting aside the judgment of the learned Single Judge. We quash Ext.P2 order and all consequential proceedings emanating there from. There shall be no order as to costs. The Registry shall send a copy of this judgment to the Chief Officer, Employees' Provident Fund Organisation.