RAJESH SHANKAR, J. - (1.) The present writ petition has been filed for quashing the orders dated 29.9.2015 and 15.9.2015 passed by the respondent no. 3-Enforcement Officer, E.P.F. Organisation, Jamshedpur, whereby the petitioner has been directed to deposit a sum of Rs. 11,55,798/- (Rs. 9,85,072/- under Section 7Q and other outstanding dues of Rs. 1,70,726/-), failing which coercive action under Sections 8B to 8G of Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as "the Act, 1952") would be initiated. It has further been prayed for quashing the order dated 25.1.2008 passed by the respondent no. 2-Assistant Provident Fund Commissioner, Jamshedpur, under Section 7A of the Act, 1952 for determination of dues for the period from October, 2005 to September, 2006 which has been determined as Rs. 1,45,021/- and further ordered to pay interest of Rs. 25,705/- calculated under Section 7Q of the Act as also the appellate order dated 17.8.2011 passed by the Employees' Provident Fund Tribunal (hereinafter referred to as "Tribunal"), whereby the order dated 25.1.2008 has been affirmed.
(2.) The factual background of the case as stated in the writ petition is that the petitioner is a company running a Rubber Reclaiming Factory registered under the provision of the Act, 1952. A quasi-judicial proceeding under Section 7A of the Act, 1952 was initiated for the period from October, 2005 to September, 2006 and the said proceeding was disposed of vide order dated 25.1.2008/28.1.2008 and pursuant thereto a demand of Rs. 1,45,021/- towards provident fund and allied dues along-with interest under Section 7Q of the Act, 1952 to the extent of Rs. 25,705/-calculated as on the date of the order was made. Aggrieved thereby, the petitioner preferred appeal before the Tribunal and vide order dated 17.8.2011, the order of the Assistant Provident Fund Commissioner, Jamshedpur was affirmed. The petitioner was issued a notice dated 9.9.2013 for the shortfall in deposit of some of the employees and was directed to deposit immediately. Again, a notice dated 22.11.2013 was issued to the petitioner claiming short deposits for the period up to 2011-12 for Rs. 11,81,417/- and thereafter, the petitioner paid the said demanded amount by way of challan. On 3.9.2014, a notice was again issued to the petitioner, whereby the respondents directed the petitioner to deposit damages under Section 14B of the Act, 1952 and penalty and interest on the belated payments were levied to the tune of Rs. 9,85,072/- for the period from 1.4.2010 to 30.11.2013. Finally on 15.9.2015, an order for recovery of the amount of Rs. 11,55,798/- i.e., Rs. 9,85,072/- dues under Section 7Q of the Act, 1952 for the period of July, 2009 to March, 2013 and dues under Section 7A of the Act, 1952 for the period October, 2005 to September, 2006, was passed. Again, an order for recovery dated 29.9.2015 was issued to the petitioner for payment of the aforesaid dues.
(3.) The learned counsel for the petitioner submits that before proceeding for recovery of damages on account of default on the part of the petitioner under Section 14B of the Act, 1952, no proceeding under Section 7A of the Act, 1952 has been initiated for determination of the due amount and thus, on this score alone the impugned order of recovery vitiates. It is further submitted that the provisions of Section 14B of the Act, 1952 do not provide for any belated payment, rather the word used is "default in payment" which is not the case of the petitioner. Though the payments have been made belatedly, yet the penalty and damages under Section 14B of the Act, 1952 is not attracted, as belated payment cannot be termed as default in payment. It is further submitted that before passing the order dated 15.9.2015, neither any show-cause notice was issued nor the order contains any reference of enquiry which ought to have done before passing the said order. Though the respondent no. 2 while passing the order has admitted that the wages has been earned for extra work done by the workmen after normal working hours, but at the same time the wages earned by the workers during overtime after normal working hours, has been treated as basic wage and has illegally levied the provident fund and allied dues upon it. The learned Appellate Tribunal has dismissed the appeal without considering the fact that the work was done after the normal working hours which could not have been included in the basic wage. It is further submitted by the learned counsel for the petitioner that the Appellate Tribunal has not taken into consideration that the factory of the petitioner used to run in three shifts and when the regular employees of the next shift were found to be absent, the workmen of the earlier shift were required/requested to work in the next shift in place of such absentee workmen. The earlier shift workmen would be entitled to earn overtime for their extra work. The payment against such extra work has been entered as overtime. Moreover, when a particular mix used to be in process in a particular shift and due to power cut if such mix could not be finished, the workmen of such shift were required to continue to work even in the next shift. It is also submitted that the remuneration paid for additional working hours and payment of overtime allowance cannot be included in the basic wage.;