M/S.OSSTA PRESS V. R.P.FUND COMMNR.

OJC/3597/2001

AI Insights

The case involves M/s. OSSTA Press, a registered association of secondary school teachers and staff in Orissa, challenging the demand for damages under Section 14-B of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952. The petitioner argued that the Act was not applicable to them until a commissioner’s order in 1995, and they had complied by depositing all dues immediately after this order. However, the court found that the petitioner had not complied with the statutory requirements from 1976 onwards, leading to the imposition of damages. The court dismissed the petition, emphasizing that the damages were rightly imposed for the delay in compliance with the statutory provisions.

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 726140 (HC-CUTTACK)
• Appeal Type: Others
• Pronouncement Date: 01-10-2015
• Assessment Year: misc
• Other Referred Cases: Hirday Narain vrs. Income-tax Officer, Bareilly, Durga Enterprises (P) Ltd. and another vrs. Principal Secretary, Government of U.P. and others, Mangalore Ganesh Beedi Works vrs. Union of India, M/s. P.M. Patel and sons vrs. Union of India, Organo Chemical Industries and another Vrs. Union of India and others, Employees' State Insurance Corporation Vrs. H.M.T. Ltd. and another, Hindustan Times Ltd. V. Union of India
• Laws Referred To: Constitution of India, Employees' Provident Fund and Miscellaneous Provisions Act, 1952
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: P K PANDA AND S S MISHRA
• Assessee Lawyers: M K ROUTRAY AND S SAMAL
• Keywords: Damages; Default; Provident fund; Statutory obligation; Applicability
• Section: 226; 14(b); 7(a); 227

Judgement Text

" ORISSA HIGH COURT : CUTTACK. O.J.C. No.3597 of 2001 In the matter of an application under Articles 226 & 227 of the Constitution of India. -------------- M/s. OSSTA PRESS ……… Petitioner. -Versus- Regional Provident Fund Commissioner and Others ……… Opp. Party For Petitioner : M/s. M.K. Mohanty, B.P. Routray And S. Samal. For Opp. Parites : M/s. P.K. Mishra, A.K. Panda and S.S. Mishra (for O.P. No.1) PRESENT : THE HONOURABLE SHRI JUSTICE S.N. PRASAD ---------------------------------------------------------------------------- Date of hearing and judgment :- 01.10.2015 ---------------------------------------------------------------------------- S. N. Prasad, J. Heard learned counsel for the petitioner and learned counsels appearing for the opposite parties. 2. This writ petition is for quashing the order under Annexure-5 with a further direction upon the opposite parties to refund the amount already recovered from the bank account of the petitioner lying with the opposite party No.3. 3. The brief facts of the case is that the petitioner is a registered Association of Secondary School Teachers and Members of Staff in the State of Orissa having its office at 2 Nayasarak in Cuttack Town, a notice has been issued on 20th April, 1982 to pay the Provident Fund dues of Rs.61,359.50 and Rs.70,174.20 towards Employees’ Provident Fund for the period from 3/76 to 1/81 and from 2/81 to 6/82 respectfully. 4. The demand notice was challenged by the petitioner before this court in O.J.C. No.2424 and 2425 of 1982 on the ground that the petitioner is an Association basically aiming for ameliorating the grievances of Members of Association and officially it has also a printing press. But the Provident Fund Commissioner without any application of mind, taking into account the number of staff serving in the press as well as the number of staff working in other units of the Association, computed for paying the Employees’ Provident Fund dues as the Members of the staff of the Association who has got no connection with the employees of the press. The number of staff who were serving in the press is not 20 or more than that hence the provision of Employees’ Provident Fund and Misc. Provisions Act, 1952 is not at all applicable. 5. This Court vide order dtd.24.1.1990 was pleased to pass an order by quashing the demand notices, remanded the matter before the Commissioner for further enquiry and to find out whether in fact the persons engaged in the printing press either directly or indirectly would exceed the number of 20 so as to bring the establishment within the ambit of the Act or not. In pursuance to the order passed by this court in O.J.C. Nos.2424 and 2425 of 1982 the Commissioner has passed an order on 14.8.1995 holding therein that both the press and the office of the Association are owned by the same 3 Association, hence the office of the Association along with the press has been held to be within the purview of Provident Fund Act, 1952. The petitioner without challenging the order passed by the Commissioner dtd.14.8.1995 has deposited the entire amount from 1976 till 14.8.1995. But the opposite party-Provident Fund even after deposit of entire amount has issued a notice U/s.14-B of the Act, 1952 for deposit of the damage towards default in payment of Provident Fund dues from the year 1976 till 14.8.1995. The opposite parties have instituted P.D. cases against the petitioner. In the P.D. case the petitioner has received notice on 2.11.1996 by which the petitioner was asked to file show-cause for levy of damages U/s.14-B of the Act for the period from 1990-91, the date of filing of show cause was fixed to 7.11.1996. After receiving the notice the petitioner sought for time to file show-cause, but show-cause has not been filed due to the accidental death of son of the General Secretary of the petitioner-Association. Thereafter the petitioner –Association has received a notice for payment of Rs.3,30,443/- in Certificate Case No.286/97 which was instituted for levy of damages in P.D. Case No.177 and 361 of 1996-97. After knowing about pendency of the Certificate Case No.286 of 1997 the petitioner made an enquiry and then only came to know that by virtue of a common order passed on 18.2.1997 in P.D. Case No.177 and 361 of 1996-97 by which damages have been imposed upon the petitioner for the period from 3/76 to 9/82 @ 2% to 100% depending upon the number of default and the period of delay. 6. After knowing about the order dtd.18.2.1997 an application was filed on 19.11.1999 for recall of the order dtd.18.2.1997 but during pendency of the said application 4 only the opposite parties have debited a sum of Rs.2,10,000/- from the Punjab National Bank against the damage claimed by the Provident Fund Commissioner in Certificate Case No.286 of 1998 and 14 of 1999. Further a sum of Rs.2,00,000/- have been debited from the fixed deposit receipt of the petitioner. 7. According to the petitioner after the order passed by the Commissioner on 14.8.1995 the petitioner is required to pay the amount assessed U/s.7-A from the year 1976 till 14.8.1995 and as such the petitioner is not liable to pay any damage on account of the fact that the moment the order U/s.7-A has been passed on 14.8.1995 when the entire amount has been deposited, there is no delay in depositing the statutory amount. The contention of the leaned counsel for the petitioner that the petitioner is not liable to pay any damage from the year 1976 till 14.8.1995 because the question of applicability of the Act itself was decided on 14.8.1995 and the moment it was decided, the petitioner without challenging the said decision which was taken on 14.8.1995 has deposited the entire amount, hence there is no delay in deposit of the statutory amount. 8. Opposite parties have appeared and filed counter affidavit inter alia stating therein that:- (i) There is availability of alternative remedy of appeal. (ii) Section 14-B of the Provident Fund Act, 1952 provides that where an employer makes default in the payment of any contribution to the fund, the employer will be liable to pay the damage. 5 It has further been contended that under the provision of Section 14-B it is mandatory on the part of the employer to deposit the amount within a stipulated prescribed period, i.e. 15th of the close of every month. The petitioner being an employer was duty bound to deposit the statutory amount by 15th of the close of every month right from the year 1976 but it has not been deposited, hence delay has been caused in depositing the statutory amount although the proceeding U/s.7-A was initiated in which the petitioner was brought into the compass of the Act, 1952. But the same was challenged before this court in O.J.C. Nos.2424 and 242 of 1982 in which the order passed by the authority U/s.7-A was quashed with a direction upon the Commissioner to enquire into regarding applicability of the Act and accordingly the Commissioner vide order dtd.14.8.1995 has decided the issue by holding that the provision of the Act, 1952 is applicable to the petitioner. There is no dispute that the petitioner had deposited the amount immediately after the order dtd.14.8.1995 but that does not absolve the employer in depositing the amount of damage because the petitioner being an employer was to deposit the amount from the 1976 but not deposited on one pretext or the other. Hence he has come into the purview of Section 14-B irrespective of the fact that the order has been passed by the authority U/s.7-A which was quashed by this court and subsequently a fresh order was passed in 1995 in which the petitioner has been brought into the purview of the Act, 1952 which itself suggests that the Act is applicable. 9. After hearing the parties at length and on perusal of the documents, the fact which needs to be decided is as to 6 whether the petitioner is liable to pay the damage under the provision of Section 14-B ? 10. Preliminary objection has been raised by learned counsel appearing for the opposite parties regarding availability of alternative remedy of appeal as provided U/s.7(i) of the Act, 1952. There is no denial that there is provision of appeal U/s.7(i) of the Act, 1952 which provides being quoted herein below:- “7-I. Appeals to Tribunal-(1) Any person aggrieved by a notification issued by the Central Government, or an order passed by the Central Government or any authority, under the proviso to sub-section (3), or sub-section (4) of section 1, or section 3, or sub-section (1) of section 7A, or section 7B [except an order rejecting an application for review referred to in sub-section (5) thereof], or section 7C, or section 14B, may prefer an appeal to a Tribunal against such notification or order. (2) Every appeal under sub-section (1) shall be filed in such form and manner, within such time and be accompanied by such fees, as may be prescribed.]” 11. This writ petition has been filed on 26.3.2001, on 9.4.2001 notices have been issued to the opposite parties with an interim order not to take coercive action against the petitioner for realization of the disputed amount. In pursuance to the direction dtd.9.4.2001 O.Ps. have appeared, filed detail counter affidavit and since then the matter is pending for its adjudication. 12. There is no denial in the settled proposition of law that if there is any alternative remedy available under the statute the High Court under Article 226 should not interfere since the same will amount to snatching the power of the appellate 7 authority but however, there is no straight jacket formula rather it depends upon discretion of the Court. It is self-imposed restriction upon the High Court. 13. The writ petition was pending before this Court i.e., from 26.3.2001. Thus 14 years has been lapsed. If after lapse of 14 years this Court will not entertain the writ petition on the ground of availability of alternative remedy, after exchanging the affidavits in between the parties it would not be proper, in this regard reference of the judgment of the Hon’ble Supreme Court is worth to be seen delivered in the case of Hirday Narain vrs. Income-tax Officer, Bareilly reported in AIR 1971 SC 33 wherein their lordships has been pleased to hold which is being quoted herein below:- “We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income-tax Officer under Section 35, but was not moved, the High Court would be justified in dismissing as not maintainable the petition, which was entertained and was heard on merit.” Further in the judgment in the case of Durga Enterprises (P) Ltd. and another vrs. Principal Secretary, Government of U.P. and others reported in (2004) 13 SCC 665 wherein their lordships has been pleased to pass an order that the writ petition was pending for a long period of thirteen years when summarily dismissed on the ground that there is remedy of civil suit by the High Court. Their lordships in that judgment were of the view that the High Court should not have dismissed the writ petition without deciding the writ petition on merit. 14. After considering the fact that during pendency of the writ petition, this Court has passed an interim order to maintain status quo with regard to possession of property in question. 8 15. Taking into consideration the facts as indicated hereinabove and the views of Hon’ble Supreme Court and if the facts of this case will be compared from the views of Hon’ble Supreme Court in the cases indicated above after lapse of 14 years when this Court has entertained this writ petition, passed an interim order to take no coercive action, affidavits has been exchanged, thereafter it would not be proper for this Court to summarily reject the writ petition on the ground of availability of alternative remedy otherwise the question of period of limitation will arise and also in order to avoid further litigation it would be appropriate to decide the case on merit. 16. In view of the above reasons in stead of sending the matter before the alternative remedy of appeal i.e., before the Tribunal, the writ petition is being decided on merit. 17. So far as the merit of the case is concerned, the issue fell for consideration before this court in this case is as to whether the petitioner is liable to pay damage as provided U/s.14-B of the Act, 1952? In order to appreciate the issue the relevant provisions of the Act, 1952 like 7-A and 14-B is necessary to be examined and for ready reference provision of Section 7-A and 14-B of the Act, 1952 is being quoted herein below:- “[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] 9 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.] (2) The officer conducting the inquiry under sub-section (1) shall, for the purposes of such inquiry, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), for trying a suit in respect of the following matters, namely:- (a) enforcing the attendance of any person or examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavit; (d) issuing commissions for the examination of witnesses, and any such inquiry shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code (45 if 1860). (3) No order shall be made under sub-section (1), unless [the employer concerned] is given a reasonable opportunity of representing his case. [(3A) Where the employer, employee or any other person required to attend the inquiry under sub-section (1) fails to attend such inquiry without assigning any valid reason or fails to produce any document or to file any report or return when called upon to do so, the officer conducting the inquiry may decide the applicability of the Act or determine the amount due from any employer, as the case may be, on the basis of the evidence adduced during such inquiry and other documents available on record.] [(4) Where an order under sub-section (1) is passed against an employer ex-parte, he may, within three months from the date of communication of such order, apply to the officer for setting aside such order and if he 10 satisfies the officer that the show-cause notice was not duly served or that he was prevented by any sufficient cause from appearing when the inquiry was held, the officer shall make an order setting asked his earlier order and shall appoint a date of proceeding with the inquiry: Provided that no such order shall be set aside merely on the ground that there has been an irregularity in the service of the show-cause notice if the officer is satisfied that the employer had notice of the date of hearing and had sufficient time to appear before the officer. Explanation.- Where an appeal has been preferred under this Act against an order passed ex parte and such appeal has been disposed of otherwise than on the ground that the appellant has withdrawn the appeal, no application shall lie under this sub-section for setting aside the ex parte order. (5) No order passed under this section shall be set aside on any application under sub-section (4) unless notice thereof has been served on the opposite party.]]. [14.B. 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 section17] 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 authorized 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 the recovering such damages, the employer shall be given a reasonable opportunity of being heard:] 11 [Provided further that the Central Board may reduce or waive the 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.]” From perusal of the provision contained in section 7A, it has been provided therein that the authorities are empowered to pass an order in a case where a dispute arises regarding applicability of the Act to an establishment, decide such dispute and to determine the amount due from any employer under any provision of this Act, the Scheme or the Scheme or the Insurance Scheme as the case may be. While section 14B provides whether an employer makes default in making contribution to any fund may recover from the employer by way of penalty after providing due opportunity of being heard to the employer. The scope of Sec.7A has been discussed and dealt with by the Hon’ble Supreme Court of India placing reliance upon the judgment in the case of Mangalore Ganesh Beedi Works vrs. Union of India reported in AIR 1974 SC 1832 and in the case of M/s. P.M. Patel and sons vrs. Union of India reported in AIR 1987 S.C. 447 that the applicability of the Act to any class of employees is not determined or decided by any proceeding under Section 7-A but under the provision of the Act itself. When the Act become applicable to the employees in question the liability arises. For ready reference part of Para-6 is being quoted herein below:- 12 “6. The applicability of the Act to any class of employees is not determined or decided by any proceeding under Section 7-A of the Act, but under the provisions of the Act itself. When the Act become applicable to the employees in question the liability arises. What is done under Section 7-A of the Act is only determination of quantification of the same. Therefore, the contention put forth on behalf of the appeal that liability was attracted only from the date of determination of the matter under Section 7-A of the Act does not stand to reason. Indeed.” 18. In the case of Organo Chemical Industries and another Vrs. Union of India and others reported in (1979) 4 Supreme Court cases 573 wherein their lordship has been pleased to discuss the objective and purpose of section 14B which can be seen at paragraphs 22 and 23 being quoted herein below:- “22. The expression „damages‟ occurring in Section 14-B is, in substance, a penalty imposed on the employer for the breach of the statutory obligation. The object of imposition of penalty under Sectoin14-B is not merely „to provide compensation for the employees‟. We are clearly of the opinion that the imposition of damages under Section 14-B serves both the purposes. It is meant to penalize defaulting employer as also to provide reparation for the amount of loss suffered by the employees. It is not only a warning to employers in general not to commit a breach of the statutory requirements of Section 6, but at the same time it is meant to provide compensation or redress to the beneficiaries i.e. to recompense the employees for the loss sustained by them. There is nothing in the section to show that the damages must bear relationship to the loss which is caused to the beneficiaries under the Scheme. The word „damages‟ in Section 14-B are „default in the payment of contribution‟ and, therefore, the word „default‟ must be construed in the light of Para 38 of the Scheme which provides that the payment of contribution has got to be made by the 15th of the following month and, therefore, the word „default‟ in Section 14-B must mean „failure in performance‟ or „failure to act‟. At the same time, the imposition of damages under section 14-B is to provide reparation for the amount of loss suffered by the employees. 13 23. The construction that we have placed on the word „damages‟ appearing in Section 14-B of the Act, is in accord with the intent and purpose of the legislation. It was brought on the statute book by Act 37 of 1953. The objects and reasons so far material, read; There are also certain administrative difficulties to be set right. There is no provision for inspection of exempted factories nor in there any provision for the recovery of dues from such factories. An employer… can delay payment of Provident Fund dues without any additional financial liability. No punishment has been laid down for contravention of some of the provisions of the Act. (emphasis supplied) The object and purpose of the section is to authorize the Regional Provident Fund Commissioner to impose exemplary or punitive damages and thereby prevent employers from making defaults. The provision for imposition of damages at Twenty-five per cent of the amount of arrear, however, did not prove to be effective. Accordingly, by Act 40 of 1973, the words „not exceeding the amount of arrear‟ were substituted, for the words „twenty-five per cent‟. The necessity for making this change is brought out in the objects and reasons, a material portion of which reads:” Further from perusal of Para 38 and 43 of the judgment rendered in the case of Organo Chemical Industries v. Union of India(Supra) there lordships at Para 38 has been pleased to hold thus the relevant Para 38 of the said judgment is being quoted for ready reference; “38. What do we mean by „damages‟? The expression „damages‟ is neither vague nor over-wide. It has more than one signification but the precise import in a given context is not difficult to discern. A plurality of variants stemming out of a core concept is seen in such words as actual damages, civil damages, compensatory damages, consequential damages, contingent damages, continuing damages, double damages, consequential damages, exemplary damages, general damages, irreparable damages, pecuniary damages, prospective damages, special damages, speculative 14 damages, substantial damages, unliquidated damages. But the essentials are (a) detriment through legal remedies and (c) its quantum being determined by the dual components of pecuniary compensation for the loss suffered and often, not always, a punitive addition as a deterrent-cum-denunciation by the law. For instance, „exemplary damages‟ are damages on an increased scale, awarded to the plaintiff over and above what will barely compensate him for his property loss, where the wrong done to him was aggravated by circumstances of violence, oppression, malice, fraud, or wanton and wicked conduct on the part of the defendant, and are intended to solace the plaintiff for aggravations of the original wrong, or else to punish the defendant for his evil behavior or to make an example of him, for which reason they are also called “punitive” or “punditry” damages or “vindictive” damages, and (vulgarly) “smart-money”. It is sufficient for our present purpose to state that the power conferred to award damages is delimited by the content and contour of the concept itself and if the Court finds the Commissioner travelling beyond, the blow will fall. Section 14-B is good for these reasons.” 19. The facts in this case is that the proceeding U/s.7A by which the applicability of the Act, 1952 has been applied in connection with the petitioner. Accordingly demand notices have been issued by the authority on 20th April, 1982 regarding dues of Rs.61,359.50 and Rs.70,174.20 towards Employees’ Provident Fund dues for the period from 3/76 to 1/81 and from 2/81 to 6.82 respectively, the demand notices were challenged by the petitioner by way of filing two writ petitions being O.J.C. Nos.2424 and 2425 of 1982, this court vide order dtd.24.1.1990 has disposed of the writ petitions by the following directions:- “In that view of the matter, members of the staff who are in no way connected with the printing press cannot be taken into consideration in computing the number for inclusion of the industry in question 15 within the ambit of section 1(3)(a) of the Act. The ultimate conclusion of the Commissioner, therefore, on the face of it appears to be erroneous. In that view of the matter, we would quash the order of the Commissioner under Annexures-8 and 12 and remit the matter to him for a further enquiry and to find out whether in fact the persons engaged in the printing press either directly or indirectly would exceed the number of 20 so as to bring the establishment within the ambit of the Act or not. While re-enquiring into the matter, the Commissioner may also give an opportunity to the petitioners to lead further evidence in that regard. In view of our direction quashing Annexures-8 and 12 the consequential demand notices are also hereby quashed.” In terms of the order passed by this court in O.J.C. nos.2424 and 2425 of 1982 the Commissioner has passed a fresh order U/s.7A of the Act, 1952, after taking into consideration all aspects of the matter and after hearing the petitioner the following order has been passed by the Commissioner on the basis of the admitted positions that is :- (i) Both the press and the office of the Association are owned by the same Association. (ii) The control and supervision of both the units are by one and the same agency and may be by different persons. (iii) Regarding finance, the bank Account is one and common for both the office as well as Printing Press. In the press, no outside job is undertaken. The maintenance of the Press as well as the Office is from and out of the Budget allotment of the Association. 16 (iv) The Association spent its income in maintaining the office as well as printing press. (v) The press cannot be carried on but for the publication of Test Papers or journals and has been brought out in the Constitution of Orissa Secondary School Teachers’ Association. (vi) These factual features clinchingly establish the financial, managerial and functional integrity between two units i.e. Press and Office and they constitute one integrated whole. In this view of the matter, the office of the Association along with the Press will come within the mischieve of Provident Fund Act, 1952. Keeping all these facts in view by no stretch of imagination, one can reach in other conclusion except the one that M/s.OSSTA has fulfilled all the conditions of applicability of the Act. In view of what has been discussed above, I Sri L.N. Sethy, Regional provident Fund Commissioner, Orissa hold that EPF & MP Act, 1952 became applicable to M/s.OSSTA with effect from 3rd March, 1976 when they employed 20 employees and it completed 5 years of existence from the date of their set up i.e. 1967 under section 16(1)(d) of the Act. Accordingly M/s.OSSTA is under statutory obligation to deposit the Provident Fund dues in respect of its employees employed in different activities for the period 3/76 onwards. And whereas having hold that M/s.OSSTA rightly came within the purview of the Act from 2/76 and the amount of Provident Fund dues payable by it for the period 3/76 to 6/82 has been assessed as Rs.65,595.05 on the basis of the dues 17 statement dtd.14.8.1995 submitted by the area Enforcement Officer Sri K.M. Biswal appointed under section 13(1) of the EPF & MP Act, 1952.” After the order having been passed U/s.7A by the Commissioner on 14.8.1995 the petitioner has deposited the amount forthwith without challenging the said order. 20. Thereafter two demand notices have been issued U/s.14B of the Act, 1952, when reply to show cause has not been filed, a P.D. case has been instituted for levy of damage U/s.14B of the Act, 1952 and vide order dtd.27.1.1997 direction has been passed by the Regional Provident Fund Commissioner to pay the amount of damage in to the respective EPF account maintained by the State Bank of India. When the amount has not been paid, it has been directed to be recovered from the amount deposited in the bank account of the petitioner. 21. The grievance of the petitioner at this juncture is that he has filed an application for recall of order dtd.18.2.1997 and during pendency of the application the amount has been recovered in pursuance to the order passed in P.D. case No.177 and 361 of 1996-97 dtd.18.2.1997 (Annexure-5). Hence the action of the authorities is illegal. 22. The other contention of the petitioner is that when the final decision regarding applicability of the Act has been taken by the Commissioner only on 14.8.1995 and the statutory amount has been deposited from 1976 to 1991, the petitioner cannot be held liable to pay the damage. 18 23. So far as the contention of the petitioner regarding filing of the recall application for recall of order dtd.18.2.1997 as to why during pendency of the application the amount has been directed to be recovered, this argument of the petitioner is of no force because the direction passed by the Regional Provident Fund Commissioner is under a statute, i.e. Act, 1952 whereas the provision has been made for assessing the amount for inflicting the damages for recall of the order. The provision of review is there but for review of order passed U/s.7A by making an application U/s.7A(4) except there is no provision for review or recall of the order passed by the statutory authority under the provision of the Act 1952. The petitioner has filed an application for recall of order dtd.18.2.1997 that is the order passed in P.D. case Nos.171 and 361 of 1996-97 but without any provision which itself is evident from annexure-6 annexed to the writ petition and it is settled that if any order has been passed by any statutory authority in terms of statutory provision, it is not necessary that the authority will pass an order. It is also steeled that power of review / revision cannot be exercised by the authority unless power is provided under the statute. 24. So far as power of recall of an order that is the order dtd.18.2.1997, the authority cannot recall the said order in absence of any statutory provision. Hence it cannot be said that the authorities have committed any illegality in making recovery of the amount even when the application for recall of the order dtd.18.2.1997 has been filed by the petitioner being under power provided under the statute to an authority. 19 25. So far as the claim of the petitioner that he is not liable to pay the damage because the application of Section 7A of the Act, 1952 has been said to be effective only on or after 14.8.1995 but immediately after the order dtd.14.8.1995 passed by the Commissioner, the entire damage from 1976 to 1991 has been paid. This argument of the petitioner cannot be accepted due to the reasons:- There is no dispute that the demand notices were issued against the petitioner on 20th April, 1982 for making payment of the dues of Rs.61,359.50 and Rs.70,174.20 towards Employees’ Provident Fund dues from 3/76 to 1/81 and from 2/81 to 6/82 respectively. However, the same was quashed by this court in O.J.C.2424 and 2425 of 1982 by remitting the matter before the Commissioner to decide the applicability of the Act with respect to the petitioner, accordingly the Commissioner has passed an order on 14.8.1995 and held that the petitioner, the press and the office of the Association since owned by the same Association, hence the Act is applicable. From perusal of the order passed by the Commissioner on 14.8.1995 it is evident that the petitioner has been said to be a part and parcel of the Association which itself suggests that whatever liability is of the Association from the date of its constitution, the same will be applicable to the press, the petitioner therein also. 20 26. The petitioner immediately after the order dtd.14.8.1995 has deposited the statutory contribution from the year 1976 to 1990-91 which also suggests that the statutory amount which ought to have been deposited in the respective account of the employees by the 15th day of each month right from the 1976 has been deposited only after the order dtd.14.8.1995. This being corroborated from the stand of the petitioner that he has not challenged the order of the Commissioner passed on 14.8.1995 rather the petitioner has acted upon the same. 27. The moment the petitioner has deposited the amount from the 1976 it is suggestive of the fact that the statutory duty as provided under the Act, 1952 for deposit of statutory amount in the respective account of the employer has not been fulfilled by the petitioner being an employer and as such the applicability of the provision of section 14B has been warranted and accordingly the notices have been issued for levy of damages U/s.14B of the Act, 1952. But the petitioner has not given any reply to the show cause although the opportunity has been provided which has not been filed, which is admitted position in this case because at paragraph 10 of the writ petition it has been stated that due to the accidental death of the son of the General Secretary of the petitioner-press the reply to the show-cause could not be submitted. So it is not a case that the opportunity to defend has not been provided rather it has been provided but not availed. It can also not be said that the petitioner is in the individual capacity rather it is an Association and press, there might be casualty in the family of an individual office bearerof the Association but being an Association there are other office 21 bearers also who can defend by availing the opportunity to file reply to the show-cause as required U/s.14B but not replied on notices issued having been duly been served, accordingly P.D. cases have been instituted and the amount lying with the Bank has been recovered. 28. There is no dispute in the fact that the Act, 1952 is a welfare legislation to support the beneficiaries who are to be benefited by the Act, 1952. If any Act has been promulgated for the welfare of the employee who are not being supported by any scheme like the pension scheme or the insurance scheme, the statutory provision has to be followed and for that purpose the Act, 1952 has been promulgated giving the authorities ample power to implement it. The provision of Section 7A has been made for deciding the applicability of the dues of the employee to be deposited by the employer. The employer who used not to deposit the amount and to restrain these activities and attitude the provision of section 14B has been inserted by way of Act 37 of 1953 w.e.f. 12.12.1953 providing power to the authorities to make recovery in case of default of making any delay in contribution of the found. The scope of Section 14B has further been stated in case of Employees’ State Insurance Corporation Vrs. H.M.T. Ltd. and another reported in (2008) 3 Supreme Court Cases 35 wherein at paragraph 19 after placing reliance upon the judgment rendered in case of Hindustan Times Ltd. V. Union of India reported in (1998) 2 SCC 242 has been pleased to hold at para 29 as follows:- “29. From the aforesaid decisions, the following principles can be summarized:- 22 The authority under Section 14-B has to apply his mind to the facts of the case and the reply to the show-cause notice and pass a reasoned order after following principles of natural justice and giving a reasonable opportunity of being heard; the Regional Provident Fund Commissioner usually takes into consideration the number of defaults, the period of delay, the frequency of default and the amounts involved; default on the part of the employer based on plea of power cut, financial problems relating to other indebtedness or the delay in realization of amounts paid by the cheques or drafts, cannot be justifiable grounds for the employer to escape liability; there is no period of limitation prescribed by the legislature for initiating action for recovery of damages under section 14-B.” However, in the judgment rendered herein above it is a fact that the exercise of power U/s.14-B has to be passed after providing opportunity of being heard. In this case the opportunity has been provided but the petitioner has not availed. And accordingly the authority cannot be restrained from passing any order if the employers have chosen not to file any reply. Thus the Law is settled that the power of authority U/s.14-B is very wide, that is only for the purpose that there may not be any restriction in implementation of the statutory provision. 29. Since in this case petitioner has deposited the amount right from the year 1976 till 1990-91 which suggests that the statutory amount which ought to have been deposited by 15th of each month has not been deposited. Rather it has been deposited only after the order dtd.14.8.1995. Hence the authorities have exercised the power conferred U/s.14-B of the Act, 1952. Although the order has been passed by the 23 Commissioner regarding applicability on 14.8.1995, but the Act will be said to be applicable from the year 1976 itself but this court for the ends of justice has remitted the matter back to the Commissioner to verify the issue, it was not a new issue fell for consideration before the Commissioner regarding applicability of the Act, rather the decision which has already been taken by the authority on 20th April, 1982 has been confirmed by way of an order passed on 14.8.1995. Hence in view of the foregoing reasons the contention of the petitioner is not acceptable and as such the ground raised by the petitioner for quashing the demand notice is hereby rejected. In consequence thereof the writ petition is dismissed being devoid of any merit. ……………………….. S.N. Prasad, J. Orissa High Court, Cuttack. Dated the 1st October, 2015/MKP "