1 Leave granted.
2 This Appeal assails the judgment of the Division Bench of the High Court at Calcutta which had allowed the Appeal preferred against the judgment of the learned Single Judge, who in turn had applied and
implemented the opinion of the Division Bench as expressed in
Darjeeling Dooars Plantation Ltd. vs Regional Provident Fund
Commissioner, 1995 ILLJ 939 Cal. In the impugned Order, the
present Division Bench had the advantage of perusing the view taken
by a Special Bench of three learned Judges of the Calcutta High Court
in Dalgaon Agro Industries Ltd. vs Union of India, (2006) 1 CALLT
32 (HC), which was decided on 24.06.2005. The Special Bench was
constituted in view of a reference submitted by a Single Judge in Writ
Petition No. 16037(W), who had entertained an opinion which differed
with three earlier decisions rendered by Single Judges in three separate
matters. Along with the aforestated writ petition, an appeal pending
before a Division Bench against one of those Single Judge decisions
was also taken up by the Special Bench. In this Appeal, therefore, we
have primarily to consider whether the exposition of law by the Special
Bench in Dalgaon Agro Industries Ltd. is the logical and acceptable
view.
3 The factual matrix obtaining in the case at hand, succinctly
stated, is that M/s. Mathura Tea Estate, P.O. Mathura Bagan, District Jalpaiguri, West Bengal,JUDGMENTowned by Saroda Tea Company Ltd., indubitably an establishment covered by the Employees’ Provident
Funds and Miscellaneous Provisions Act, 1952 (‘the EPF Act’ for
brevity), had defaulted in remitting the contributions and
accumulations payable under the EPF Act and the sundry Schemes
formulated under that statute. It was in those circumstances that the
Regional Provident Fund Commissioner (‘RPF Commissioner’ for
brevity), Jalpaiguri, West Bengal, had issued notices to M/s. Mathura
Tea Estate enabling it to show cause against the imposition of
‘damages’ as envisaged under Section 14B of the EPF Act. M/s.
Mathura Tea Estate requested for a waiver of damages, which request
came to be rejected on the predication that the said establishment was
neither a sick unit nor the subject of any scheme for rehabilitation
sanctioned by the Board for Industrial and Financial Reconstruction. In
the duration of those proceedings, the management of M/s. Mathura
Tea Estate under the erstwhile ownership of Saroda Tea Company Ltd.
was taken over by Eveready Industries (India) Ltd, which thereafter
discharged the liability of entire principal sum of Provident Fund dues
to the tune of Rs.75,76,000/- pertaining to the period prior to the
takeover in consonance with the Memorandum of Understanding entered into between it and Saroda Tea Company Ltd. Significantly, the said Memorandum of Understanding also included a clause to the
effect that any damages payable for the failure to deposit the dues and
accumulations under the EPF Act would be the exclusive liability of
Saroda Tea Company Ltd making it palpably evident that the appellant
was fully alive to this liability. It is in these premises that Eveready
Industries (India) Ltd. undauntedly contended before the RPF
Commissioner, Jalpaiguri, in the event in futility, that proceedings
under Section 14B of the EPF Act against it were unjustified as it was
not the “employer” defined under Section 2(e) of the EPF Act, which
defaulted in paying contributions. The RPF Commissioner has
recorded that M/s. Mathura Tea Estate had defaulted in payment of
dues for the period from March, 1989 to February, 1998, which
assertion of fact is not in dispute. It held that on a conjoint reading of
Sections 14B and 17B of the EPF Act it was clear that damages under
Section 14B were recoverable jointly and severally from Saroda Tea
Company Ltd. as well as Eveready Industries (India) Ltd. After
tabulating the rates of damages, i.e. percentage of arrears per annum
depending on the period of default, damages were assessed at
Rs.70,37,950; and it was further directed that failure to deposit penal damages within the stipulated period would attract the provisions of Section 7Q of the EPF Act, thereby enhancing the liability to include
simple interest at the rate of 12 per cent per annum on the damages.
It was this Order of the RPF Commissioner that failed to find favour
with the learned Single Judge of the High Court at Calcutta, who set
aside the Commissioner’s Orders and directed the said Authority to
reconsider the issues within a period of three months. The learned
Single Judge had drawn reliance from the ruling reported as The
Regional Provident Fund Commissioner, Mangalore vs Karnataka
Forest Plantations Corporation Ltd., Bangalore, 2000 (1) LLJ 1134,
which had ruled that on an interpretation of Section 17B the transferee
employer would be liable to pay all outstanding contributions even for
the period preceding the transfer, but it could not be fastened with
punitive liability for acts of omission or commission of the previous
employer for the period anterior to the transfer. It will bear reiteration
that in terms of the judgment of the Division Bench impugned before
us, the decision of the learned Single Judge in its own turn was
reversed on the application of the dictum of the Special Three-Judge
Bench in Dalgaon Agro Industries Ltd.
4 The Special Bench of the High Court of Calcutta in Dalgaon Agro Industries Ltd. JUDGMENThas rendered a detailed judgment on the conundrum before us. Succinctly stated, the Special Bench has opined
that (a) the transferor and the transferee managements remain jointly
and severally liable under Sections 14B and 17B of the Act for all
sums due including damages; (b) the transferor’s indebtedness comes
to a halt on the date of the transfer but includes the sums computed
under both these Sections till the date of transfer; (c) the transfer does
not bind either the employees or the Fund; (d) the transferee stands
cautioned by virtue of Sections 1(3) and 17B that the erstwhile as well
as the current employer remain responsible for liabilities under both
the Sections as a consequence of liability being that of the
establishment in question of which employers are merely fictional
representatives to facilitate recovery of dues; (e) recovery of any
amount due is protected under Section 11(2) of the Act, which grants
priority to the amount so due over all other debts under any other
statute as being the first charge on the assets of the establishment; (f)
the Act has innovated radical and effective modes of recovery as
evident from Sections 8B and 8F, which further reinforces the fact that
liability to pay dues is of the establishment recoverable through the
employer; (g) liability under Section 14B admits no waiver except as provided; (h) damages could be recovered regardless of any reasonable period of prescription; (i) the covenants in the Transfer Deed are
irrelevant for determination and recovery of dues and damages; and (j)
criminal liability would be attracted only in the event the outstandings
are not completely recovered.
5 For facility of reference, the relevant provisions of the EPF Act
are reproduced:-
An Act to provide for the institution of provident funds, pension fund and deposit-linked insurance fund for employees in factories and other establishments.
Section 1(3) Subject to the provisions contained in section 16, it applies (a) to every establishment which is a factory engaged in any industry specified in Schedule I and in which twenty or more persons are employed, and (b) to any other establishment employing twenty or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette, specify in this behalf: Provided that the Central Government may, after giving not less than two months’ notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any establishment employing such number of persons less than twenty as may be specified in the notification.
Section 2(e) “employer” means – (i) in relation to an establishment which is a factory, the owner or occupier of the factory, including the agent of such owner or occupier, the legal representative of a deceased owner or occupier and, where a person has been named as a manager of the factory under clause (f) of sub-section (1) of section 7 of the Factories Act, 1948 (63 of 1948), the personso named; and JUDGMENT (ii) in relation to any other establishment, the person who, or the authority which, has the ultimate control over the affairs of the establishment, and where the said affairs are entrusted to a manager, managing director or managing agent, such manager, managing director or managing agent;
Section 7A. Determination of moneys due from employers. – (1) The Central Provident Fund Commissioner, any Additional Central Provident Fund Commissioner, any Deputy Provident Fund Commissioner, any Regional Provident Fund Commissioner or any Assistant Provident Fund Commissioner may, by order, -
(a) in a case where a dispute arises regarding the applicability of this Act to an establishment, decide such dispute; and
(b) determine the amount due from any employer under any provision of this Act, the Scheme or the [Pension] Scheme or the Insurance Scheme, as the case may be,
and for any of the aforesaid purposes may conduct such inquiry as he may deem necessary.
Section 7Q. Interest payable by the employer -- The employer shall be liable to pay simple interest at the rate of twelve per cent per annum or at such higher rate as may be specified in the Scheme on any amount due from him under this Act from the date on which the amount has become so due till the date of its actual payment: Provided that higher rate of interest specified in the Scheme shall not exceed the lending rate of interest charged by any scheduled bank.
Section 8. Mode of recovery of moneys due from employers– Any amount due (a) from the employer in relation to an establishment to which any Scheme or the Insurance Scheme applies in respect of any contribution payable to the Fund or, as the case may be, the Insurance Fund damages recoverable under section 14B, accumulations required to be transferred under sub-section (2) of section 15 or under sub-section (5) of section 17, or anycharges payable by him under any other provision of this Act or of any provision of the Scheme or the Insurance Scheme; or (b) from the employer in relation to an exempted establishment in respect of any damages recoverable under section 14B or any charges payable by him to the appropriate Government under any provision of this Act or under any of the conditions specified under section 17 or in respect of the contribution payable by him towards the Pension Scheme under the said section 17, may, if the amount is in arrear, be recovered in the manner specified in sections 8B to 8G.
Section 11(2) Without prejudice to the provisions of subsection (1), if any amount is due from an employer whether in respect of the employee’s contribution deducted from the wages of the employee or the employer’s contribution, the amount so due shall be deemed to be the first charge on the assets of the establishment, and shall, notwithstanding anything contained in any other law for the time being force, be paid in priority to all other debts.
Section 14B. Power to recover damages - Where an employer makes default in the payment of any contribution to the Fund the Pension Fund or the Insurance Fund or in the transfer of accumulations required to be transferred by him under sub-section (2) of section 15 or sub-section (5) of section 17 or in the payment of any charges payable under any other provision of this Act or of any Scheme or Insurance Scheme or under any of the conditions specified under section 17, the Central Provident Fund Commissioner or such other officer as may be authorised by the Central Government, by notification in the Official Gazette, in this behalf may recover from the employer by way of penalty such damages, not exceeding the amount of arrears, as may be specified in the Scheme. Provided that before levying and recovering such damages, the employer shall be given a reasonable opportunity of being heard. Provided further that the Central Board may reduce or waivethe damages levied under this section in relation to an establishment which is a sick industrial company and in respect of which a scheme for rehabilitation has been sanctioned by the Board for Industrial and Financial Reconstruction established under section 4 of the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986), subject to such terms and conditions as may be specified in the Scheme.
Section 17B. Liability in case of transfer of establishment Where an employer, in relation to an establishment, transfers that establishment in whole or in part, by sale, gift, lease or licence or in any other manner whatsoever, the employer and
the person to whom the establishment is so transferred shall
jointly and severally be liable to pay the contribution and
other sums due from the employer under any provision of this
Act or the Scheme or the Pension Scheme or the Insurance
Scheme, as the case may be, in respect of the period up to the
date of such transfer:
Provided that the liability of the transferee shall be limited to
the value of the assets obtained by him by such transfer.”
6 We shall briefly discuss a decision of this Court namely, Sayaji
Mills Ltd. vs. Regional Provident Fund Commissioner, 1984 (Supp)
SCC 610, even though the questions before this Court are disparate in
quotient. The management/owners of the Sayaji Mills had contended
that since the factory had been purchased in 1955 in certain liquidation
proceedings and the period of three years had not elapsed from the date
of its establishment, the EPF Act would have no applicability to it
under unamended Section 16(1)(b) of the Act. This Court observed
that the statute is a beneficent legislation and any interpretation
JUDGMENTfacilitating the evasion of its provisions should be abjured, as
employers would “spare no ingenuity in seeking to deprive the
employees of all the benefits conferred upon them”; that the old
establishment should virtually have come to an end for the EPF Act to
apply afresh; and most significantly, that the said Act is made
applicable to the factory in contradistinction to its owner. Once this
rationale is applied to the present conundrum, it becomes apparent that
the inter se covenants between the Eveready Industries (India) Ltd.
and the erstwhile owners viz. Saroda Tea Company Ltd. would not
insulate the former from the rigours of damages imposed by the EPF
Act. Damages must be calculated, it is plain, and be recovered by the
Authority in the most efficacious and convenient manner. This
decision, Sayaji Mills Ltd., was not brought to the notice of the
Division Bench of the Karnataka High Court in Karnataka Forest
Plantations Corporation Limited, otherwise it would not have
endeavoured to explore which party/employer was ‘guilty’ of the
infraction of the statutory provisions. The reasoning of the Karnataka
decision is evidently flawed and runs counter to the intendment of the
EPF Act as is crystal clear from a perusal of its Preamble (supra); and manifests the ingenuity that employers may devise to circumvent liability.
7 Mr. Jayant Bhushan, learned Senior Counsel for the Appellant
has sought sustainment for his submissions from Employees’ State
Insurance Corporation vs HMT Ltd. (2008) 3 SCC 35, but in our
consideration, in vain. In that case, the ESIC raised a claim for
deposit of interest on outstanding contributions of the management
under the ESIC Act and the concerned Regulations, and in addition
thereto levied damages in terms of Section 85B of the Employees’
State Insurance Act, 1948 (‘ESIC Act’ for brevity). Section 85B of the
ESIC Act is essentially para materia Section 14B of the EPF Act, and
therefore this decision assumes great importance. The submission of
the HMT Management was that damages ought not to be levied, since
Section 85B was an enabling provision and did not intend to make levy
of damages mandatory. We shall reproduce for facility of reference
and comparison, the statutory provision of ESIC Act, 1948 to spotlight
the legal nodus with which we are presently engrossed –
85B. Power to recover damages. – (1) Where an employer
fails to pay the amount due in respect of any contribution or
any other amount payable under this Act, the Corporation may
recover from the employer by way of penalty such damages
not exceeding the amount of arrears as may be specified in the
regulations:
Provided that before recovering such damages, the employer shall be given a reasonable opportunity of being heard:
Provided further that the Corporation may reduce or waive the
damages recoverable under this section in relation to an
establishment which is a sick industrial company in respect of
which a scheme of rehabilitation has been sanctioned by the
Board for Industrial and Financial Reconstruction established
under section 4 of the Sick Industrial Companies (Special
Provisions) Act, 1985 (1 of 1986), subject to such terms and
conditions as may be specified in regulations.
(2) Any damages recoverable under sub-section (1) may be
recovered as an arrear of land revenue or under section 45C to
section 45-I.
8 In HMT Ltd., this Court noted the beneficial nature of the ESIC
Act; that subordinate legislation must conform to the provisions of the
parent Act. Despite giving due regard to the use of the words “may
recover damages by way of penalty”, and mindful that mens rea and
actus reus to contravene a statutory provision are necessary ingredients
for levy of damages, this Court set aside the interference of the High
Court vis-à-vis the imposition of damages and further held that
imposition of damages by way of penalty was not mandated in each
and every case. The dispute was remitted back to the High Court for
fresh consideration, i.e. to proceed on the premise that the levy of
penalty under the Act was not a mere formality, a foregone conclusion
or an inexorable imposition; and that the circumstances surrounding
the failure to deposit the contribution of the employees concerned would also have to be cogitated upon. This decision does not prescribe that damages or penalties cannot or ought not to be imposed.
Further, the presence or absence of mens rea and/or actus reus would
be a determinative factor in imposing damages under Section 14B, as
also the quantum thereof since it is not inflexible that 100 per cent of
the arrears has to be imposed in all the cases. Alternatively stated, if
damages have been imposed under Section 14B it will be only logical
that mens rea and/or actus reus was prevailing at the relevant time.
We may also note that this Court had yet again reiterated the well-
known but oft ignored principle that High Courts or any Appellate
Authority created by a statute should not substitute their perspective of
discretion on that of the lower Adjudicatory Authority if the impugned
Order does not otherwise manifest perversity in the process of decision
taking. HMT Ltd. does not proscribe imposition of damages; that
would negate the intent of the legislature. The submission of the
petitioner before us is that the liability was of the erstwhile
management and since the petitioner was not the “employer” at the
relevant time, default much less deliberate and wilful default on the
part of the petitioner was absent. However, it seems to us that once
these damages have been levied, the quantification and imposition could be recovered from the party which has assumed the management of the concerned establishment.
9 The Two-Judge Bench decision in Organo Chemical Industries
vs Union of India (1979) 4 SCC 573, makes compelling reading not
only because of the contrasting styles of two of our illustrious
predecessors; A.P. Sen J for his erudite, efficient and precise
exposition of the law and V.R. Krishna Iyer J for his elegance of
expression and verve impregnated with humanism and compassion.
Organo involved a petition under Article 32 of the Constitution
challenging the Constitutional vires of Section 14B of the EPF Act.
The contention was that the default of the employer/establishment was
not wilful, rendering inappropriate the imposition of damages of a
penal nature; and since the computation of damages was left totally
unguided and untrammelled, violation of Article 14 was plainly and
expectedly obvious. The Court while upholding the Constitutional
validity of Section 14B held that the raison d’etre for the introduction
of Section 14B (by Act 40 of 1973) was to deter and thwart employers
from defaulting in forwarding contributions to the Funds, most often
with the ulterior motive of misutilizing not only their own but also the
employees’ contributions. Section 14B originally restricted damages to 25 per cent of the withheld amounts which, having been found to be ineffectual for the attainment to the objectives of the Act, was
increased to a sum “not exceeding the amount of arrears”. This Court
also interred the division or dichotomy of opinions flowing from
differing decisions of different High Courts by clarifying that the word
‘damages’ has been employed in this dispensation to mean penalty on
recalcitrant employers as well as reparation for loss caused to the
Fund. The Court stoutly repelled the contention that damages were
merely compensatory in nature and, therefore, should not exceed the
interest that would have accrued in favour of the Funds had the
contributions been diligently dispatched to the Funds. Organo has
been favourably followed in Babubhai & Co. vs. State of Gujarat
(1985) 2 SCC 732.
10 There is no gainsaying that criminal liability remains steadfastly
fastened to the actual perpetrator and cannot be transferred by any
compact between persons or even by statute. But this incontrovertible
legal principle does not support or validate the contention of Mr.
Jayant Bhushan, Learned Senior Advocate for the Appellants, that
damages levied in terms of Section 14B of the EPF Act cannot be
foisted onto his clients. Sections 14, 14A, 14AA, 14AB and 14AC of the EPF Act are the provisions postulating prosecution; in contradistinction Section 14B contemplates the power to “recover from
the employer by way of penalty such damages, not exceeding the
amount of arrears, as may be specified in the Scheme”. It is true that it
is not a river but a mere rivulet that segregates and distinguishes the
legal concepts of damages or compensatory damages or exemplary
damages or deterrent damages or punitive damages or retributory
damages. We shall abjure from writing a dissertation on this
compelling legal nodus; save to clarify that modern jurisprudence
recognizes that the imposition of punitive damages, quintessentially
quasi-criminal in character, can be resorted to even in civil proceedings
to deter wilful wrongdoing by making an admonished example of the
wrongdoer. This is the essential purpose, it seems to us, of Section
14B of the EPF Act, and an imposition within its confines does not
assume criminal prosecution so as to stand proscribed insofar as
transfer of establishment from one management/employer to its
successor is concerned.
11 It has also been argued that damages as postulated in Section
14B would not be transferable under Section 17B. This argument has
to be stated only to be rejected for the reason that Section 17B specifically speaks of “the contributions and other sums due from the employer under any provision of this Act or the Scheme” (emphasis
added). The proviso to Section 17B indeed clarifies the position
inasmuch as it restricts and/or limits the liability of the transferee up to
the date of the transfer to the value of the assets obtained by him
through such transfer.
12 We are also not impressed by the argument addressed by Mr.
Bhushan to the effect that damages under Section 14B are not jointly
and separately recoverable from the erstwhile and the present
managements under Section 17B as Section 14B moves in its own and
independent orbit. Several amendments have been made to the EPF
Act so far as the fasciculous of Sections 7A to Section 7Q is
concerned. This is also true of the pandect containing Sections 14A,
14AA, 14AB, 14AC, 14B and 14C; and for that matter Sections 17A,
17AA and 17B. Where such widespread amendments and changes are
incorporated in a statute, it is always salutary and advisable to
reposition the provisions and number them sequentially and logically.
The argument that the phrase “determination of amounts due from any
employer” is found in Section 7A as well as in Section 17B is not factually correct. SectionJUDGMENT17B speaks of “contributions and other sums dues from the employer under any provision of this Act …….”;
the latter Section is, therefore, wider in ambit than the previous one. In
our opinion, Section 14B is complete in itself so far as the computation
of damages is concerned. It is conceivable that the money due from
an employer would have to be calculated under Section 7A, and in the
event the default or neglect of the employer is contumacious and
contains the requisite mens rea and actus reus yet another exercise of
computation has to be undertaken under Section 14B. Where the
Authority is of the opinion that damages under Section 14B need to be
imposed, the computations would come within the purview of Section
14B and it would be recoverable jointly and severally from the
erstwhile as well as the current managements. A perusal of the
Appeals Section, namely, 7I is illustrative of the fact that these
exercises are distinct from each other as per the enumerations found in
the first sub-Section of Section 7I. It also appears logical to us, in the
wake of the numerous and different dates of amendments, that Section
7A(2) would also be available to proceedings under Section 14B of the
Act. The applicability of Civil Procedure Code, 1908 to proceedings
under Section 14B has not specifically been barred by the statute. 13 It is necessary JUDGMENTto clarify that Eveready Industries (India) Ltd. had in the interregnum of this litigation changed its name to Mcleod
Russel India Ltd. In view of our above analysis, it is our considered
opinion that the impugned Judgment deserves to be upheld. It
contains a detailed and logical exposition of facts as well as the law
pertaining to the present dispute. We also approve the pithy
observations of the RPF Commissioner, Jalpaiguri in the subject Order
that failure on the part of the employers to make remittances of
accumulations and contributions, undermines the objectives and
purposes of the statute. We underscore that the liability of the Fund to
pay interest to subscribers regardless of whether employers have paid
their dues, runs relentlessly. The Commissioner has specifically
recorded that he has taken a lenient view in the matter and has
eschewed imposition of damages to the extent of 100 per cent of the
arrears even though this is envisaged by the EPF Act. The Appellant-
Petitioner has, in the circumstances of the case, been also rightly
burdened with the payment of interest under Section 7Q of the EPF
Act. Accordingly, the Appeal is dismissed and the interim Orders are
recalled. Although, it is our opinion that the Appeal is wholly devoid
of merit, we refrain from imposing costs.
[VIKRAMAJIT SEN] New Delhi; July 02, 2014.