The petitioner is a Government Company, which has a ship building unit at Azhikkal, Kannur. It is stated that on account of the adverse business conditions, the employees provident fund contributions relating to the period September 2000 to February 2012 was not paid. The respondent Organisation issued a notice proposing to impose damages under Section 14B of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as “EPF & MP Act”). 2. The petitioner admitted the delay and filed a representation seeking waiver of damages as is seen in Ext.P2. The respondent, however, issued an order on 21.01.2013, imposing damages under Section 14B, which is produced herein as Ext.P3. Admittedly, the petitioner did not challenge the same. Again, a communication was issued to the respondent authority praying for waiving of such damages imposed. That communication is produced at Ext.P5.
3. When the recovery proceedings were initiated under Ext.P5, the period provided under the EPF & MP Act, for filing an appeal from Ext.P3 order had expired. The petitioner approached this Court with a writ petition under Article 226. This Court found in Ext.P6 that it was only due to the callous indifference of the officers of the petitioner that appeal was not filed within time from the order. This Court, specifically found that the loss caused to the petitioner Company has to be recovered after conducting an enquiry into the matter, to fix the liability on such officers, who were responsible for such omission. However, after stating so, in considering the issue whether a respite should be granted to the petitioner, a representation filed at Ext.P5 was directed to be considered.
4. An order passed on such representation produced at Ext.P7is said to be challenged herein. The contention of the petitioner is that the same is an illegal order, since the question of mitigation on financial grounds, was not at all considered by the authority. This Court is of the opinion that, it is too late in the day to take such a contention.
5. Primarily it is to be noticed that this Court had in the earlier round specifically declined consideration of the issue under Article 226, since the petitioner had not availed of the statutory remedy available to the petitioner . Two separate Division Benches of this Court have in Assistant Commissioner of Central Excise v. Krishna Poduval [2005(4) KLT 947] and Panopharam v.
Union of India [2010(3) KLT 149] held unequivocally that when an assessee has not availed of the statutory remedy within the time provided or within the time provided for filing an appeal with delay; there cannot be an invocation of Article 226 to condone the delay, which even as per the statute was not condonable. Nor can the issue be then examined under Article 226.
6. In the present case, admittedly, the appeal was not filed within the time provided or within the time within which the appellate authority had power to condone the delay. A petition moved under Article 226 was also rejected on the ground of failure to avail of the statutory remedy. True, this Court had, while dismissing the earlier writ petition granted a respite insofar as consideration of a representation. The petitioner cannot be allowed to challenge the order passed in such representation under Article 226, since, that was specifically not allowed by this Court, in the earlier round. What the petitioner was not permitted to do at the earlier point of time, could not now be permitted merely by reason of an order having been passed only on the ground of an indulgence shown by this Court in the earlier occasion.
7. Further, it is to be noticed that the petitioner's contentions against imposition of Section 14B damages are available in Exts.P2 and P4. Exts.P2 and P4 are glaring, insofar as there is absolutely no material available to find financial crisis. The mere statement of financial crisis cannot lead to mitigation of damages under Section 14B.
For all the above reasons, the writ petition is found to be devoid of merit and the same is dismissed in limini.
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(K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge