2024:MLHC:968
Serial No. 01
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 163 of 2023
Date of Decision: 30.10.2024
St John’s School Whitehall, Shillong
Represented by Shri. Robert Z Street,
Employer, St John’s School Whitehall,
Shillong, Meghalaya. ::::: Petitioner
-Vs-
1. The Employees Provident Fund
Organization, Represented by the Regional
P.F. Commissioner – II, Employees Provident
Fund Organization, Regional Office,
Laitumkhrah Police Point, Shillong,
Meghalaya.
2. The Authorized Officer,
Employees Provident Fund Organization,
Regional Office, Laitumkhrah Police Point,
Shillong, Meghalaya.
3. The Recovery Officer,
Employees Provident Fund Organization,
Regional Office, Laitumkhrah Police Point,
Shillong, Meghalaya.
4. The Branch Manager,
State Bank of India, Rynjah Branch,
Shillong, Meghalaya. ::::: Respondents
Coram:
Hon’ble Mr. Justice W. Diengdoh, Judge
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Appearance:
For the Petitioner/Appellant(s) : Mr. S. Deb, Adv.
For the Respondent(s) : Ms. P. Bhattacharjee, Adv. (For R 1-3)
Ms. N.G. Shylla, Adv. (For R 4)
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT
1. This is a petition preferred under Article 226 of the Constitution
of India. On perusal of the same, it is noticed that the petitioner/school is
a registered educational institution functioning in the State of Meghalaya
since the year 1982. However, the school was registered with the
Employees Provident Fund Organization only in the year 2000 and
necessary payment/contributions was therefore made only from the year
2000.
2. Though the school was brought within the purview of the
related Act, that is, the Employees’ Provident Fund & Miscellaneous
Provisions Act, 1952 in the year 2000 but with effect from the year
1982, the contention of the school is that it had 20 employees only from
the year 1996 and as such, was liable to make deposit of the relevant
contributions only from such year.
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3. It is also stated that the petitioner/school received a notice from
the respondent authority in respect of the delay in depositing the dues
etc. for which interest and penal damages with effect from February
1996 to March 1999 was levied. On this Court (the then Shillong Bench
of the Gauhati High Court) being approached, the matter was disposed
of with a direction by the Court, dated 27.01.2012 in WP(C) No. (SH)
58 of 2009 to the petitioner/school to deposit 25% of the total amount of
damages etc. in accordance with Clause 32-A of the Employees
Provident Fund Scheme, 1952, which was done so and duly
acknowledged by the respondents herein.
4. It is also the petitioner/school’s case that the school was served
with two orders bearing the same reference number, that is, vide Ref.
No. /NESHG/4043/ENF-501/DAMAGES, both issued on 14.02.2023
with a direction to pay interest under Section 7Q of the Act amounting to
₹1,28,393/- (rupees one lakh twenty eight thousand three hundred ninety
three) only and the other order was for payment of damages of
₹3,35,478/- (rupees three lakh thirty five thousand four hundred seventy
eight) only with effect from February 1992 to April 2008. Such amount
to be paid within 15 days of the said order failing which necessary action
under Section 8 of the Act to be initiated for recovery of the same.
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5. The petitioner/school not being clear on the details as to how
the respondents authority have arrived at the said amount of damages
and interest demanded has sought for clarification of the same, and on
no satisfactory response being received has caused a legal notice dated
23.03.2023 to be issued in this regard. However, in reply to this, the
respondents authority have, through their reply dated 19.04.2023
directed the petitioner/school to approach the appellate authority, if so
aggrieved.
6. The respondents have then issued a certificate under Section 8
of the Act, dated 17.05.2023 issued upon the Recovery Officer to
recover the total sum of ₹ 4,63,871/- (four lakh sixty three thousand
eight hundred seventy one) only from the petitioner/school.
7. Being aggrieved with the action of the respondents in
processing and proceeding with the said orders dated 14.02.2023(supra)
and the issuance of the said certificate dated 17.05.2023, the
petitioner/school has thus filed this instant petition with the prayer to set
aside and quash the same.
8. Mr. S. Deb, learned counsel for the petitioner/school has
submitted that as far as the due payable by the school is concerned, the
period up to February 1999 has been covered by this Court’s order dated
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27.01.2012 passed in WP(C) No. (SH) 58 of 2009, wherein the
petitioner/school was directed to deposit 25% of the total damages for
the period with effect from March 1996 to February 1999. Therefore, the
respondent authority could not have demanded payment of damages etc.
for the period with effect from February 1992 to April 2008.
9. Then, for the cost of damages and interest due for the period
from March 2000 till 2008, the petitioner/school would be liable to pay
the same at the rate of 25% for which a fresh computation of the period
of default is required to be calculated, further submits the learned
counsel. In this regard, the case of Regional Provident Fund
Commissioner v. S.D. College, Hoshiarpur & Ors., (1997) 1 SCC 241,
the case of Union of India & Ors. v. Mahender Singh & Ors., (1997) 1
SCC 245, and the case of Halwasia Vidya Vihar (Sr. Sec. School)
Haryana v. Regional Provident Fund Commissioner, (2006) 4 SCC 46,
have been cited.
10. On the other hand, Ms. P. Bhattacharjee, learned counsel for the
respondent/EPF, has at the outset submitted that the petitioner/school has
misled this Court as regard the factual matrix of the case when it has
stated at para 4 of the petition that the school, although was brought
within the purview of the 1952 Act in the year 2000 but could effect
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from 1982 however, the school had 20 employees only from the year
1996 and was therefore liable to deposit the EPF dues with effect from
1996.
11. However, the above statement is false inasmuch as records
would show that the school was actually covered under the 1952 Act
since March 1982 where the number of employees are 21 teaching staff
and 8 non-teaching staff in all and the monthly wages of such staff came
to ₹14,220/- (rupees fourteen thousand two hundred twenty) only and as
such, the school is liable to deposit the necessary contribution on behalf
of such staff as EPF.
12. The petitioner/school has therefore misled this Court as far as
the proceedings in WP(C) No. (SH) 58 of 2009 to be able to get a
favourable order from this Court for payment of damages for the period
with effect from March 1996 to February 1999 is concerned, which has
caused the respondent/EPF to issue a revised calculation sheet dated
16.01.2023, the revised rate of damages to be settled by the
petitioner/school is found at para 5 of the same extracted as following:
“5. Resultantly this writ petition is allowed. The impugned
notice dated 6-3-2009 is hereby quashed. The respondent
authorities are, therefore, directed to allow the petitioner to pay
25% of the total damage for the period between March, 1996
and February, 1999 in accordance with Clause 32-A of the
Employees Provident Fund Scheme, 1952. The instalments(s)
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already paid by the petitioner may be adjusted against the
balance payable in terms of this order. No order as to costs.”
13. It is also the submission of the learned counsel that this petition
is not maintainable since the petitioner/school cannot approach this
Court with an application under Article 226 of the Constitution of India
seeking issuance of a writ against the alleged arbitrary and illegal action
of the respondent/EPF dated 14.02.2023 (supra) when there is a specific
provision under Section 7-I of the related Employees’ Provident Fund
and Miscellaneous Provisions Act, 1952 which provides for an appeal to
the Tribunal set up under the Act against an order inter alia, issued under
Section 14B, the proceedings thereof being quasi-judicial in nature, the
impugned orders being one issued under such provision, the
petitioner/school ought to have preferred an appeal, if so advised, which
was not done so.
14. The learned counsel has submitted that in view of the stated
position of law and under the facts and circumstances of the case, this
petition is liable to be dismissed and the petitioner/school be directed to
pay the dues and damages as demanded. The case of PHR Invent
Educational Society v. UCO Bank & Ors., (2024) 6 SCC 579, para 30
and the case of Commissioner of Income Tax & Ors v. Chhabil Dass
Agarwal, (2014) 1 SCC 603, para 19 have been cited in support of the
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EPF’s stand.
15. This Court while considering the case of the parties and the
submission made by the learned counsel for the petitioner/school who
has contended that the respondent/EPF could not have raised any
demand for payment of the damages and dues with effect from the year
1992 since the period has been covered by the judgment of this Court in
WP(C) No. (SH) 58 of 2009 wherein in the said order dated 27.01.2012
the petitioner/school was directed to pay 25% of the total damage for the
period between March 1996 and February 1999 in accordance with
Clause 32-A of the Employees Provident Fund Scheme, 1952 and also
the admission of the respondent/EPF of this fact inasmuch as the earlier
calculation of damages due and payable by the petitioner/school was
later revised to exclude such amount, is found agreeable by this Court.
The allegation of the respondent/EPF that the petitioner/school was
liable for contribution to the EPF with effect from the year 1982 cannot
be gone into by this Court in view of the judgment aforementioned.
16. This Court would however note the submission of the learned
counsel for the petitioner/school who has fairly submitted that the school
has admitted that there was a default in the deposit of the contribution as
far as the requirement under the 1952 Act is concerned, however the
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relevant period is only with effect from March 2000. It is also the
contention of the learned counsel that the total amount is not disputed,
the said amount can only mean the amount demanded by the
respondent/EPF which comes to ₹ 4,63,871/- (four lakh sixty-three
thousand eight hundred seventy-one) only.
17. It is the further contention of the learned counsel for the
petitioner/school that in view of the judgment in the case of Halwasia
Vidya Vihar (supra) as well as in the case of S.D. College Hoshiarpur
(supra) wherein the Apex Court taking note of the proviso found in
Section 14B of the Employees’ Provident Funds and Miscellaneous
Provisions Act, 1952 which provides for reduction or waiver of damages
levied has quantified the same at 25%. Though the respondent/EPF has
contested this contention to say that the damages, even if reduced, the
same should be at the rate of 37%, this Court under the facts and
circumstances of the case would agree that the quantum should be
qualified at 25%.
18. It is also the case of the respondent/EPF that against notice
issued under Section 14B of the Act, the notice receiver ought to have
approached the Tribunal under Section 7-I which was not done so in this
case, even while considering the authorities cited by the respondent/EPF
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which essentially speaks about the power of the High Court not to
entertain a petition under Article 226 of the Constitution, particularly
when an alternative statutory remedy is available, the fact that this
matter has travelled for quite some time before this Court to remand the
same to be freshly tried by the Tribunal would be a futile exercise
considering the fate of the employees of the petitioner/school who would
be deprived of the benefit due to them in the meantime. Accordingly, on
an overall consideration of the case in hand, this Court hereby directs the
petitioner/school to ensure that 25% of the demanded amount be
deposited for the purpose it is meant to be used and the said amount is to
be deposited within 2(two) months from the date of receipt of this order.
19. As far as respondent No. 4/ State Bank of India, Rynjah
Branch, Shillong is concerned, Ms. N.G. Shylla, learned counsel would
submit that the Bank not being directly involved in the dispute between
the parties but in course of these proceedings, on being directed by this
Court has defreeze the account of the petitioner/school, therefore no
purpose would be served in joining issues in this regard.
20. In view of the observations made herein above, this petition is
accordingly disposed of with direction as aforementioned.
Judge
Signature Not Verified 10
Digitally signed by
TIPRILYNTI KHARKONGOR
Date: 2024.10.30 [Link]
PDT
