Decided on September 26,1978



- (1.) PETITIONER is a registered trust and publishes a local Oriya daily called the "prajatantra" and an English weekly named "eastern Times. " It also runs a press where the newspapers referred to above are printed. The Samity is covered under the Employees' Provident Fund Scheme and the provisions of the Employees' Provident Funds and Family Pension Fund Act, 1952 and the Scheme made thereunder. It failed to make payment of its contribution to the Funds in time as provided by statute and upon such failure, the Regional Provident Fund Commissioner (opposite party) directed recovery of the contributions under the provisions of the Orissa Public Demands Recovery Act as provided by Section 8 of the Employees' Provident Funds and Family Pension Fund Act, 1952 (hereinafter referred to as the 'acts' ). Several certificate cases for different periods have been instituted. Along with the recovery of contributions, damage has been claimed under Section 14b of the Act. Though several contentions had been raised in the writ application and learned Counsel for the petitioner was pressing several of them, ultimately one ground has been pressed before us, namely, while quantum of contribution is not in dispute, the manner in which damages have been levied under Section 14b of the Act cannot be sustained. Where an employer makes a default in the payment of any contribution to the Fund or the Family Pension Fund or in the transfer of accumulations required to be transferred by him under Sub-section (2) of Section 15, or Sub-section (5) of Section 17 or in the payment of any charges payable under any other provisions of this Act or of any Scheme or under any of the conditions specified under Section 17, the Central Provident Fund Commissioner or such other officer as may be authorised by the Central Government, by notification in the Official Gazette, in this behalf may recover from the employer such damages, not exceeding the amount of arrears, as it may think fit to impose: Provided that before levying and recovering such damages, the employer shall be given a reasonable opportunity of being heard. Until amendment of the provision by Act 40 of 1973, the limit of damage was 25 per cent of the arrears.
(2.) A counter-affidavit has been filed by the Assistant Provident Fund Commissioner supporting the action. When a rejoinder was filed on behalf of the petitioner, the Assistant Provident Fund Commissioner filed a further affidavit including a chart showing the calculation of penal damages marked as Annexure A. In the chart, reference has been made to penal damages. The Act does not authorise levy of any penal damage and Section 14b of the Act refers to damage only.
(3.) DURING hearing of this application, we directed the learned standing counsel appearing on behalf of the opposite party to furnish a detailed statement of arrears and damages by clearly indicating the period of default. In compliance with the direction, an affidavit has been filed on 11th, September, 1978, by the Regional Provident Fund Commissioner. To the affidavit a chart has been enclosed on reference to which it would appear that no uniform basis has been maintained in the matter of levy of damages.;

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