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TMI Blog2019 (3) TMI 1937X X X X Extracts X X X X X X X X Extracts X X X X ..... e writ petition are as follows: The petitioner is the Assistant Provident Fund Commissioner, Madurai. It is the case of the petitioner that the office of the petitioner passed an order dated 04.04.2007, levying damages on the second respondent under Section 14B of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (herein after referred to as -the Act-). Aggrieved by the order dated 04.04.2007, the second respondent preferred an appeal before the first respondent in ATA.No.1(13) 2007. The first respondent passed the impugned order dated 08.09.2009, restricting the damages to 5% per annum. Aggrieved by the order dated 08.09.2009 in ATA.No.1(13) 2007, passed by the first respondent, the writ petition has been filed. 3. Hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision 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 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 waive the damages levied under this Section in relation to an establishment which is a sick industrial company and in respect of which Scheme fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns cannot be a fetter to the exercise of the power that is conferred upon the Provident Fund Commissioner by the provisions of the enactment, but guide and channelise the exercise of discretion. The Tribunal has also rightly held that neither regulation 32A or 32B can be regarded as inflexible. The Tribunal has also rightly held that the words used in Clause 32A that "may recover from the employer by way of penalty damages at the rates given below" would also suggest and the same is intended only as a guideline and is not mandatory. The Tribunal has also followed the Judgment of High Court of Kerala in the case of Indian Telephone Industries Limited Vs. APFC and others reported in 2006(3) KLJ 698 and the decision of High Court of Bombay in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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