RAJESH BINDAL, J. - (1.) THIS order will dispose of two writ petitions bearing C.W.P. Nos. 9047 and 21325 of 2011.
(2.) CWP No. 9047 of 2011 has been filed by the Regional Provident Fund Commissioner impugning the order dated 19.5.2010 passed by the Employees' Provident Fund Appellate Tribunal, New Delhi (for short 'the Tribunal'), whereby while remanding the case back to the authority it has been directed that the damages be calculated @ 37% per annum including the interest whereas in C.W.P. No. 21325 of 2011 filed by the employer the prayer is for setting aside the order levying damages in totality on the plea that it is too harsh. The proceedings in the present case were initiated for levy of penalty on the respondent establishment under Section 14 -B of the Employees' Provident Funds and Misc. Provisions Act, 1952 (for short 'the Act'). Vide order dated 12.1.2005 on account of delay in deposit of provident fund for the period (9 of 1990 to 7 of 1997 Supplementary), 1 of 1992, 1 of 1997, 9 of 1990 to 10 of 1997, 11 of 1997, 5 of 2000, 2 of 1998 to 5 of 1998, 2 of 2000,4 of 2000,9 of 2000,11 of 2000 and other dues under the Act, a penalty of Rs. 38,77,724/ - was levied. Aggrieved against the order, the respondent establishment filed an appeal before the Tribunal. Vide order dated 19.5.2010, the Tribunal, while upholding the penalty in principle, remanded the matter back to the authority for recalculation thereof by directing that a penalty @ 37% per annum shall be including the interest. The grievance of the petitioner (EPF Organisation) is that the amendment made in the table contained in para No. 32 -A of the Employees Provident Fund Scheme, 1952 (for short 'the Scheme') was made vide circular dated 26.9.2008 whereby the maximum rate of penalty was reduced from 37% to 25% per annum. As in the present case, the period to which the penalty relates and also the order passed by the authority was prior in time, the aforesaid rate could not be made applicable in the case of respondent establishment.
(3.) ON the other hand, learned counsel for the respondent - establishment submitted that in the case in hand the delay in deposit of provident fund dues at the relevant time was not on account of lapse on the part of the respondent rather the petitioner had delayed issuance of code number to the contractors employed by the respondent. The penalty imposed is too harsh. There was no mens rea. He further submitted that Para 32 -A was added in the Scheme vide amendment made w.e.f. 1.9.1991 where the maximum rate of penalty for delay of more than six months in deposit of provident fund dues was provided as 37% per annum. The aforesaid percentage of penalty was reduced to 25%, considering the fact that the petitioner started charging interest separately at the rate of 12% per annum on the delayed payment of provident fund dues under Section 7 -Q of the Act. He further submitted that the rates at which the damages were being levied as have been described in Para 32 -A of the Scheme, included the amount of interest. It is even evident from the circular issued by the Central Provident Commissioner on 29.5.1990 (Annexure P -4 annexed with C.W.P. No. 21325 of 2011) from which it is clearly evident that the rates of damages as prescribed in Para 32 -A of the Scheme prior to the amendment carried out on September 26,2008 included interest chargeable under Section 7 -Q of the Act @ 12% per annum. Hence, to state that the amount chargeable from the respondent on account of damages would be @ 37% per annum and in addition thereto the respondent is liable to pay interest under Section 7 -Q of the Act is not tenable. The respondent -establishment has charged the interest separately for the same period.;