Mahendra Kumar Gupta vs The Chairman, Board of Trustees and Others

The writ Petitioner, who is the proprietor, Kolony Tea Estate, Rangapara in the District of Darrang seeks the quashing of the order dated 7.10.85 passed by the Chairman, Board of Trustees, Assam Tea Plantation Provident Fund Scheme levying the sum of Rs. 30,623.38 paise representing 15% of the arrear as damages in exercise of powers conferred upon him vide Govt. notification No. GLR 465/ Pt. 11-17/ dated 22.7.70 and ordering the said damages to be recovered in the same manner as if it were arrear of land revenue. This order itself was in supersession of the earlier order dated 10.5.84 whereby the Petitioner was charged to pay the loss of interest on the principal amount of Rs. 2,4155.93 and the legal cost.

Dr. M.K. Sharma, learned Counsel for the Petitioner submits that while be had no objection to pay the loss of interest correctly calculated on the principal amount, and the legal cost, there was no justification for converting the same to damage without hearing him.

u/s 16 of the Assam Tea Plantation Provident Fund Scheme Act, 1955 where an employer makes a default in the payment of any contribution to the Provident Fund or in the transfer of accumulation required to be transferred by him u/s 14 or in the payment of any charges payable under any other provisions of this Act or the Scheme framed thereunder, the Government or any other person authorised by it may recover from the employer such damages not exceeding the amount of arrears, as it may think fit to impose.

While not questioning the jurisdiction to levy damages under the above section, Dr. Sharma submits that while levying loss of interest and cost earlier, the authorities were satisfied that it was not a case for levying of damages, and therefore only loss of interest and cost were levyied and thereafter nothing transpired to the knowledge of the Petitioner to justify the conversion of this loss of interest and cost into damage. The Petitioner has stated on oath that no opportunity was given to him before converting the levy into one of the damages by the impugned order. In The General Manager, South Central Railways and Another Vs. T. Venkata Rao and Others, the Supreme Court observed that when a body or authority has to determine a matter involving rights judicially, the principle of natural justice is implied if the decision of the body or authority affects individual rights or interest; and in such, cases, having; regard to the particular situation, it would be unfair for a body or authority not to have allowed a reasonable opportunity to be heard. The same view was expressed in Organi Chemical Industries and Anr. v. Union of India and Ors. AIR 1979 SC 1803 wherein their Lordships considered the nature of the damage u/s 14-B of the Employees Provident Fund and Misc. Provision Act, 1952. It was held that the power to impose damages u/s 14-B was a quasi judicial function and it must be exercised after notice to the defaulter and after giving been a reasonable opportunity of being heard and that the discretion to award damage could be exercised within the limit fixed by the statute. Section 14-B is in pari materia with Section 16 of the Assam Tea Plantation Provident Pension Fund Scheme, 1955. In Soklatinga Tea Co. v. Chairman, Board of Trustees A.T.P.P.F. Gauhati (1982) 1 GIR 316, relying on the aforesaid decision, this Court held that the provision for natural justice is to be implied in Section 16 of the Act. The Chairman is invested with the function of a quasi judicial character being clothed with power to levy an amount, equal to the amount of the contribution in arrear as damage. It entails civil consequences. The Chairman is bound to give fair notice to the employer before the impugned order is passed, in compliance with the audi alterem partem rule.

The above being the settled position in law, the Chairman, Board of Trustees, Assam Tea Plantation Provident and Pension Fund Scheme ought to have passed the impugned order dated 7.10.85 levying damages instead of loss of interest and cost after giving reasonable opportunity to the Petitioner to state his case.

Dr. Sharma submits that he has no objection to pay the amount by way of loss of interest provided it was correctly calculated and also the cost at per the earlier order. Under the above circumstances, we consider it to be in conformity with the principle of natural justice that even now the Petitioner be given an oportunity of showing cause as to why conversion of the loss of interest and cost to damage would not be justified. The Petitioner will therefore submit a representation within three weeks from today stating his whole case including his submission that as the Chairman, Board of Trustees having once levied lose of interest and cost, he had no jurisdiction to review his own order and convert the same into damage. If and when such a representation is filed, the Chairman, Board of Trustees, Assam Tea Plantation Provident Fund Scheme shall hear the Petitioner on his representation and it will be open for the Chairman to pass such orders he deems fit under the facts and circumstances of the case.

We are not setting aside the impunged order at this stage, but the payment should not be insisted till the decision is given on the Petitioners representation. This order is based on the statement that the Petitioner was not given reasonable opportunity. While passing the impugned order, if in fact opportunity was given, it will be open for the Chairman to affirm the order.

This disposes of the petition.