ARINDAM SINHA,J. - (1.) Petitioner establishment has impugned order dated 26th February, 2015 made by Regional Provident Fund Commissioner-II SRO, Siliguri by which an amount of Rs. 51,61,015/- was determined as penal damages payable by it.
(2.) Mr. Majumder, learned advocate appears on behalf of petitioner and relies on section 14B of Employees' Provident Fund and Miscellaneous Provisions Act, 1952. He emphasizes from the provision, recovery of penalty not exceeding amount of arrears is discretionary. Employer is mandated to be given a reasonable opportunity of being heard. Referring to impugned order he submits, representatives of his client had appeared before the Authority and agreed on revised statement regarding accumulation of arrears and delayed payment of provident fund dues by the establishment. That formed basis of a determination, at the discretion of the Authority, to impose penalty. He submits, it would appear from impugned order, no opportunity of hearing was granted to his client in the matter of determination of penalty. Simply because statement regarding accumulation of arrears and delayed payment was agreed as correctly drawn up, penalty was imposed. He submits, present management of the company is transferee management. His client upon obtaining transfer has cleared, inter alia, provident fund dues. He relies on judgement of Supreme Court in Employees' State Insurance Corporation v. HMT Ltd. and Anr. reported in (2008) 3 Supreme Court Cases 35 , to paragraphs 21 and 26 therein. Said paragraphs are reproduced below: "21. A penal provision should be construed strictly. Only because a provision has been made for levy of penalty, the same by itself would not lead to the conclusion that penalty must be levied in all situations. Such an intention on the part of the legislature is not decipherable from Section 85-B of the Act. When a discretionary jurisdiction has been conferred on a statutory authority to levy penal damages by reason of an enabling provision, the same cannot be construed as imperative. Even otherwise, an endeavour should be made to construe such penal provisions as discretionary, unless the statute is held to be mandatory in character. 26. Existence of mens rea or actus reus to contravene a statutory provision must also be held to be a necessary ingredient for levy of damages and/or the quantum thereof."
(3.) He refers to section 85B in Employees' State Insurance Act, 1948 where similar power has been conferred on the corporation to, at its discretion, recover from the employer by way of penalty such damages exceeding the amount of arrears as may be specified in the regulations. He submits, the difference is, under section 14B (1952 Act) prescribed authority has been conferred with discretion to recover by way of penalty such damages, exceeding the amount of arrears, as may be specified in the scheme. It is his further submission that there has been denial of hearing amounting of violation of principles of natural justice. Non application of mind is writ large on impugned order and there should be interference.;