D.V. Sehgal, J. - (1.) THIS judgment will dispose of C.W. Ps Nos. 3331, 5198, 5199 of 1985, 920, 1214 and 4121 of 1986 as common questions of law are involved in all these writ petitions.
(2.) IT would suffice to notice briefly the facts set out in C.W.P. No. 1214 of 1986. The Petitioner is a Private Limited Company and is covered by the provisions of the Employee's Provident Funds and Misc. Provisions Act, 1952 (hereinafter called 'the Act') and the schemes framed thereunder. The Regional Provident Fund Commissioner, Respondent No. 1, issued a notice to it vide letter dated 5.7.1985 Annexure P. 1 proposing therein levy of damages under Section 14 -B of the Act for different months spanning over the period from May, 1976 to July, 1984. The Petitioner submitted reply dated 16.7.1985 Annexure P.2 contending that the claim for damages for the period from May, 1976 to December, 1981 was barred by time and no claim for damages could be raised for the period preceding three years before the issuance of the notice Annexure P.1. It was also contended that the rate for levy of damages up to October, 1977 was 25% of the amount of contribution delayed and not 100%. as proposed in the aforesaid notice. The Petitioner also pleaded that there was a strike in its factory from 1.7.1982 to 23.9.1982 during which period it suffered financial losses which consequently affected the payment position including that of the provident fund. It was also contended that for the months of December, 1981, April 1983, May 1983, June 1983, December, 1983, January 1984, May 1984 and June 1984, the delay was only for one day and therefore this delay should be ignored. It was also stated that from October, 1982, the rate of levy of damages had been at the rate of 25% per annum and there was no mala fide intention on its part to deliberately delay the payment of contribution. Delay in payment had in fact been caused by factors like strike in the factory, financial stringency etc. The Petitioner contends that in spite of an elaborate explanation submitted by it, the Respondent arbitrarily passed the order dated 8.10.1985 Annexure P.3 levying damages under Section 14 -B ibid on it amounting to Rs. 92049 55. The levy of damages has been challenged on four grounds which are summarised hereunder: (1) That as per the instructions dated 3.11.1982 Annexure P.6, damages were to be charged at the flat rate of 25% per annum on all belated remittances of contribution and that it was only vide circular letter dated 13.5.1983 Annexure P.7 that the Central Provident Fund Commissioner issued revised guidelines in pursuance of which damages could be levied to the extent of 100% of the amount of delayed contribution. The contention, therefore, is that in respect of the delayed contributions for the period preceding 13.5.1983, damages can be levied not exceeding 25% of the delayed amount of contribution. (2) That the Respondent has no authority to recover damages under Section 14 -B of the Act for the period preceding three years before the date of Annexure P.1. It is maintained that under the law of limitation, the period prescribed for recovery of money is three years which should reasonably be construed and made applicable to the recovery of damages under Section 14 -B of the Act also. (3) That it was obligatory on the Respondent to have noticed the delay in the remittances of the contribution of the Petitioner within a reasonable time and to have issued notice for timely deposit of the same. The delay in the payment of damages is, according to the Petitioner, directly attributable to the want of issuance of time by notice to it by the Respondent. (4) That as para III(h) of the instructions Annexure P.5, dated October 24, 1975, half the rates of penal damages were to be levied where the employer had paid the dues after the grace period but before the end of the same month. These instructions have not been followed in the case of the Petitioner and damages have been levied at full rate even for the delayed contributions pertaining to the months which were paid before the end of the same month. On the basis of the above grounds, a prayer has been made in the writ petition that a writ in the nature of certiorari quashing the impugned order Annexure P.3 should be issued and recovery proceedings initiated under the Act should also be quashed.
(3.) THE petition has been opposed by the Respondent. Written statement has been filed by him. All the contentions raised have been countered. It has been maintained that the damages levied to the tune of Rs. 92049.55 vide Annexure P.3 are in accordance with law and the Petitioner is bound to make payment of the same. Proceedings for the recovery of the said amount are quite in accord with the procedure prescribed.;