NEW INDIA CERAMICS WORKERS INDUSTRIAL CO-OP. SOCIETY v. THE REGIONAL PROVIDENT FUND COMMISSIONER, KOZHIKODE

challenged by the Provident Fund Organization, by filing W.A.No.331 of 2009 and that Writ Appeal was also dismissed by Ext.P5 judgment. It is submitted that, after Ext.P1 judgment of this Court, the petitioner had WP.(C.)NO.4258 OF 2016 3 remitted the entire amount towards Provident Fund contribution and the 7Q interest. It is submitted that, though the aforesaid amounts would have totalled only to approx. Rs.11,12,418/- (Rupees eleven lakh twelve thousand four hundred eighteen only), the petitioner was required to remit a sum of Rs.20,00,000/- (Rupees twenty lakh only), which the petitioner remitted, as can be seen from Ext.P3 series of challans. It is submitted that, thereafter, the attachment over the property of the petitioner had also been lifted. It is submitted that when the petitioner demanded refund of the excess amount paid by it, the Provident Fund Organization has now come with a claim that the damages for the entire period during which there was default in remittance, has not been set aside by this Court in Ext.P1 judgment, which stands confirmed by Ext.P5 judgment. It is submitted that the Provident Fund Organization, after lifting the attachment by Ext.P4, has now proceeded to again attach the property of the petitioner, by Ext.P8 proceedings, stating that a sum of WP.(C.)NO.4258 OF 2016 4 Rs.2,07,866/- (Rupees two lakh seven thousand eight hundred sixty hundred only) is due from the petitioner.

3. The learned Standing Counsel appearing for the Employees Provident Fund Organization, referring to the counter affidavit filed in this Court, would contend that, Ext.P1 judgment of this Court did not cover the entire period during which there was either failure or delay in making the contribution under the EPF Act. It is submitted that, Ext.P1 judgment only cover part of the default and therefore, the finding in Ext.P1 that the levy of damages could be set aside, if the entire amount of contribution, along with interest is paid by the petitioner, did not wipe away the damages imposed for the entire period and only damages to the extent of Rs.8,40,641/- (Rupees eight lakh forty thousand six hundred forty one only) had been set aside by this Court through Ext.P1 judgment.

4. Having heard the learned Counsel for the petitioner and the learned Counsel appearing for the EPF Organization, I am of the view that the question as WP.(C.)NO.4258 OF 2016 5 to whether the petitioner is liable for any further amount, requires adjudication at the hands of the 2 nd respondent. A reading of Ext.P1 judgment does not indicate that the judgment relates to any specific period for which there was a determination of liability towards contribution, interest and penalty. Ext.P1 proceeds on the basis that the the petitioner is a sick industry and, therefore, the liability of the petitioner to pay damages under Section 14B of the Act, could be waived, if the petitioner pays the amount of contribution together with statutory interest. While the petitioner asserts that, the entire amount of contribution together with statutory interest had been paid and the amount paid is actually in excess of the amount actually payable, it appears to be the case of the Provident Fund Organization that a further sum of Rs.2,07,866/- (Rupees two lakh seven thousand eight hundred and sixty six only) is due from the petitioner as damages for the entire period in issue had not been waived by this Court. While, the counter affidavit filed by the Provident WP.(C.)NO.4258 OF 2016 6 Fund Organization attempts to justify the demand in Ext.P8, it appears that, Ext.P8 order has not been preceded by any determination, after affording an opportunity of hearing to the petitioner.

5. I am, therefore, of the view that, this Writ Petition can be disposed of, directing the 2nd respondent to take into consideration the entire aspects of the matter and the effect of Ext.P1 judgment on the demand for damages for the entire period and to also consider, whether any further amount is payable by the petitioner, after giving credit to the amounts already paid by the petitioner. Therefore, this Writ Petition will stand disposed of, directing the 2nd respondent to consider Ext.P1 judgment and any orders quantifying the contribution payable by the petitioner, the amount of interest payable by the petitioner under Section 7Q and the damages, if any levied on the petitioner and to take a decision as to whether any further amount was payable by the petitioner, after giving credit to the amounts WP.(C.)NO.4258 OF 2016 7 already paid by the petitioner. In order to enable such consideration by the 2nd respondent, the petitioner or it’s authorised representative will appear before the 2nd respondent, together with a certified copy of this judgment and a copy of this Writ Petition, at 11.am on

15.02.2024, and thereafter, the matter shall be adjudicated by the 2nd respondent as directed above, after considering all the contentions that will be taken by the petitioner. If it is found that the petitioner has remitted any amount in excess, in terms of the directions issued in Ext.P1 judgment, the said amount shall be refunded to the petitioner without further delay. Any claim of the petitioner for the interest of the said amount is left open. Status quo shall be maintained and the further proceedings on Ext.P8 shall remain suspended, till a fresh decision is taken as directed above. NB/17-1 Sd/- GOPINATH P. JUDGE WP.(C.)NO.4258 OF 2016 8 APPENDIX OF WP(C) 4258/2016 PETITIONER EXHIBITS EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P3(A) EXHIBIT P3(B) EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 THE TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN WPC 3693/06 THE TRUE COPY OF THE LETTER DT. 22/2/08 ISSUED BY THE 2ND RESPONDENT THE TRUE COPY OF THE CHALAN DT. 13/8/08 EVIDENCING PAYMENT BY THE PETITIONER THE TRUE COPY OF THE CHELAN DT. 13/8/08 EVIDENCING PAYMENT BY THE PETITIONER THE TRUE COPY OF THE CHALAN DT. 10/9/08 EVIDENCING PAYMENT BY THE PETITIONER THE TRUE COPY OF THE COMMUNICATION DT. 28/11/08 ISSUED BY THE 2ND RESPONDNET THE TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COUT IN WA 331/09 DT. 8/8/14 THE TRUE COPY OF THE LETTER DT. 13/11/14 SENT BY THE PETITIONER TO THE 1ST RESPONDENT THE TRUE COPY OF THE LETTER DT. 27/11/15 SENT BY THE PETITIONER TO THE 1ST RESPONDENT THE TRUE COPY OF THE ORDER ATTACHMENT DT 4/12/15 ISSUED BY THE 2ND RESPONDENT RESPONDENTS’ EXHIBITS: NIL TRUE COPY P.A. TO JUDGE