B.S Sinha, J.:— Hindustan Malleables and Forging, Ltd., have filed this writ application under Arts. 226 and 227 of the Constitution with a prayer that annexures 1, 5 and 6 appended to the writ application be quashed. Annexure 1 is a notice, dated 14 July 1976, regarding the recovery of damages under S. 14B of the Employees' Provident Funds and Family Pension Fund Act (hereinafter for the sake of convenience referred to as the Provident Funds Act). In this annexure, the details of defaults are also annexed as well as the proposed damages to be levied. Annexure 5 is the order, dated 24 January 1977, passed by respondent 1 in the proceeding under S. 14B of the Provident Funds Act. By this order, respondent 2 has assessed damages against the petitioner for various defaults, the details of which have been attached to it in the forms of statements, to which I shall refer hereinafter. Annexure 6 is the letter, dated 29 January 1977, issued from the office of respondent 1 to the petitioner enclosing a copy of annexure 5.

2. The relevant facts on which this application is founded, briefly stated are that the petitioner is a public limited company to whom the provisions of the Provident Funds Act apply and in accordance with such provisions the petitioner is required to pay the employees' and the employers' contributions, and the administrative charges under three heads:

(1) provident fund;

(2) family pension scheme; and

(3) the administrative charges,

which are accounts (1), (2) and (10) respectively. By annexure 1 the petitioner was informed by respondent 1, that they had made various defaults in payment of the above-mentioned contributions. The details of these defaults were also enclosed with the notice and were in the form of three separate statements serial-wise. The first statement related to default of account (1). The second statement related to default of account (10) and the third statement related to account (2). It is not disputed that the statements attached to the notice are the copies of the statements which have been enclosed by the order which has been passed by respondent 1 by annexure 5. On receipt of this notice, the petitioner sent a detailed explanation regarding delays in the payments on different dates, a true copy of such explanation has been appended to and marked annexure 2. In pursuance of the notice, annexure 1, the petitioner appeared before respondent 1 on 20 August 1976, and again submitted a written show cause against the proposed damages, a copy of which is annexure 3. The matter was partly heard on 28 September 1976, in the presence of the personnel officer of the petitioner and then the matter was adjourned to 14 September 1976. On 14 September 1976, no one appeared on behalf of the petitioner and hence again an information was sent to the petitioner to attend the enquiry on 30 October 1976, on which date, the representative of the petitioner handed over one affidavit, dated 14 September 1976, on behalf of the petitioner. Thereafter certain submissions were made on behalf of the petitioner, on consideration of which, the impugned order, annexure 5, was passed which was followed by a letter, annexure 6. The grievance of the petitioner against the imposition of the damages are various and I shall consider them a little after.

3. There is not much controversy with regard to the facts that I have stated above. However, a counter-affidavit has been filed on behalf of respondent 1, in which it is stated that the damages which have been imposed upon the petitioner are in accordance with law and have been imposed by him after giving the petitioner an appropriate opportunity to make his representation and an affidavit in reply has been filed on behalf of the petitioner as well. Before considering the submissions of the parties, it would be relevant to take into account some of the provisions of the Provident Funds Act which have since its inception in 1952, been subjected to various amendments. Section 14 B was inserted for the first time by Act 37 of 1953. Since then this section has again been subjected to amendments. Some important changes were incorporated in it by Act 40 of 1973. This amendment came into force from 1 November 1973. Important changes made in S. 14 B by Act 40 of 1973 are firstly in respect of the competent authority to determine damages for default. Previously the State Government was the competent authority but by this amendment 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 have been made the competent authority. By a notification bearing No. S.O 548-E, dated 17 October 1973, published in the Gazette of India, the Regional Provident Fund Commissioner for the State of Bihar is the competent authority The second important amendment incorporated is that the recovery of damages has been increased from 25 per cent to the amount of the arrears itself, i.e, from 25 to 100 per cent; the third important amendment brought about it is the insertion of a proviso to S. 14B.

4. Under S. 4 of the Provident Funds Act, family pension scheme has been made which hereinafter for the sake of convenience is referred to as the scheme. Under Para. 38 of the scheme, the employer has got to deposit the contribution not only on behalf of itself but also on behalf of the employees as well. This paragraph further provides that the deposit of such contribution shall be made within fifteen days of the close of every month, i.e, a contribution for a particular month has got to be deposited by the 15th of the month following. Section 14B of the Provident Funds Act read thus:

“(14B. Power to recover damages.— Where an employer makes default in the payment of any contribution to the fund (or the family pension fund) or in the transfer of accumulations required to be transferred by him under Sub-sec. (2) of S. 15 (or Sub-sec. (5) of S. 17) or in the payment of any charges payable under any other provision of this Act or of any scheme or under any of the conditions specified under S. 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 such damages, not exceeding the amount of arrears, as it may think fit to impose.

Provided that before levying and recovering such damages, the employer shall be given a reasonable opportunity of being heard.)

By reference to this provision, it will be seen that if there is a default in the payment of any contribution to the fund or family pension scheme or in the transfer of accumulations as referred thereunder or as in the payment of any charges payable under any other provision of this Act or of any scheme, the competent authority, in the instant case, the Regional Provident Fund Commissioner, may recover from the employer such damages, not exceeding 100 per cent of the amount of arrears as it may think fit to impose. By reading the section, it is clear, therefore, that the competent authority under the section has got to act in a quasi-judicial manner and in accordance with the principles of natural justice. It, therefore, becomes necessary that the order that he makes be a speaking order containing at least indications of the considerations of the relevant aspects and a brief statement of reasons that weighed in the imposition o damages.

5. It would be relevant in this context to refer to a decision of Coal Mines Provident Fund Commissioner, Dhanbad v. J.P Lala & Sons [1976 — I L.L.N 259], where S. 10F of the Coal Mines Provident Funds and Bonus Schemes Act, 1958, fell for consideration. Section 10F of that Act is substantially in the same words as S. 14B of the Provident Funds Act except with regard to the amount of damages. Chief Justice Sri A.N Ray, speaking for the Court in that case, pointed out that there were two important features in S. 10F of that Act:

“First, the words of importance are damages not exceeding 20 per cent.” These words show that the determination of damages is not an inflexible application of a rigid formula.

Second, the words “as it may think fit to impose” show that the authorities are required to apply their mind to the facts and circumstances of the case.

As these expressions have been used in S. 14B as well, it must be held that when the competent authority acts under S. 14B of the Act the determination of damages is not an inflexible application of rigid formula and the competent authority must apply his mind to the facts and circumstances of the case.

6. I have already stated above that when acting under S. 14B, the authority concerned must conform to the principle of natural justice. Words implicit in S. 14B have been made explicit by adding a proviso to S. 14B by Act 40 of 1973, wherein it is provided that before levying and recovering the damages, the employer shall be given a reasonable opportunity of being heard, i.e, he must be given an opportunity to explain the circumstances in which the default was made which may enable him either not to pay any damages at all or make out a case for the imposition of smaller damages in case of default.

7. Sri Tara Kishore Prasad appearing for the petitioner has submitted that in the instant case no damages could be levied because all the payments that the petitioner had to make, had been made before notices were issued to him by (annexure 1). In other words, submission of the learned counsel is that even though there was a default in the payment of contribution, as those contributions had been paid, no notice for damages could be issued to the petitioner in terms of S. 14B of the Act. There is no substance in this submission of the learned counsel.

8. The word “default” is used in various senses but there could be no doubt that in the instant case, the word “default” would mean failure in performance or failure to act. It will further be seen that the words used in S. 14B are “default in the payment of any contribution” in construing which Para. 38 of the scheme has to be taken into account. I have already said above that Para. 38 of the scheme provides that the payment of contribution have got to be made by the 15th of the following month. Therefore, if the payment is not made by that date, there will be default in payment. However, the payment though made after default but before notice is issued may be a circumstance which the competent authority can take into account in considering the quantum of damages with regard to a default. Therefore, the inference is that once the payment has not been made by the time prescribed by the statute there would be a default in payment. In this very context the learned Standing Counsel, Central Government, appearing for the respondents, drew our attention to a Bench decision of the Kerala High Court in the case of Provident Fund Inspector v. Mohammed [1964—I L.L.J 580]. In that case the question that fell for consideration was whether in case of failure to deposit the contribution within the time and failure to submit returns in time, an offence has been committed by the employer as provided in Cls. (a) and (c) of Para. 76 of the scheme. In determining that question it was observed that:

“So when after fifteen days of the close of the month the employer fails to pay to the fund his share of the contribution for the previous month, it is a failure to pay within the meaning of Cl. (a) of Para. 76 and he is liable to be proceeded against, no matter whether he pays the amount later.”

This observation lends support to the conclusion which I have already arrived at.

9. It was next contended on behalf of the petitioner that as some of the defaults related to a period prior to 1 November 1973, respondent 1, the Regional Provident Fund Commissioner, was not the competent authority to deal with the damages for those periods. These defaults are items (1) to (7) in the statement of all the three accounts which have been annexed with the order, annexure 5. It is not disputed that they related to a period prior to November 1973, being for the months of February to June, September and November, 1972. The submission of learned counsel is that the amendment incorporated in S. 14B of the Act 40 of 1973, not being retrospective, the Regional Provident Fund Commissioner would not be a competent authority to determine damages for the periods prior to November 1973. Submission of the learned counsel on this point seems to be fallacious. There is no question of the amendment being retrospective. By the amendment of 1973, the competent authority instead of the State Government is the Regional Provident Fund Commissioner. Therefore, by the amendment, the competent authority has been changed. If before November 1973, any damages had to be imposed for default the authority was the State Government. After November 1973, such authority is the Regional Provident Fund Commissioner. Hence, if the default has come to the knowledge of the competent authority, i.e, the Regional Provident Fund Commissioner after 1 November 1973, and it relates to a period before November 1973, then, I see no reason, why he is not competent to impose the damages with regard to that period also.

10. Sri Standing Counsel also drew our attention to a Bench decision of the Delhi High Court in Civil Miscellaneous Petition No. 193 of 1976, dated 6 August 1976. The judgment that he has produced before us has not been reported and is a plain copy of the original. There is, however, no occasion to doubt the authenticity of it. In this case it was urged on behalf of the petitioner that the Regional Provident Fund Commissioner has no jurisdiction to levy damages for the period prior to October 1973, because it was only in October 1973, when the Regional Provident Fund Commissioner got power to levy such damages. This submission was repelled in the following words:

“The fallacy in this contention is that what is to be seen in the exercise of power by the competent authority when the power is exercised.”

I am in respectable agreement with the observation made above.

11. There is still another angle from which this matter can be considered. If the contention of the petitioner was correct, then the consequence would be that for default prior to October 1973, which is brought to the notice of the competent authority after October 1973 or which was pending before the competent authority in October 1973, there would be no authority to assess damage. It could not be disputed that after October 1973, the State Government is no longer the authority to impose damages. Hence the result would be that in all such cases no damages would be imposed which could not be the intention of the Legislature. Accordingly, this submission also fails.

12. Sri Tara Kishore Prasad, thereafter, urged that in any view, the order passed by the competent authority, respondent 1 in the instant case, must be set aside because of non-consideration of certain materials and also because in certain aspects the order is perverse. The learned counsel in support of this submission of his, urged that by going through the order it would appear that the competent authority had determined the damages by the application of a rigid formula and had not applied his mind to the facts and circumstances of the case. Annexure 5, the impugned order imposing the damages itself states that one of the facts brought to the notice of the competent authority was that the provident fund dues from February to June 1972, i.e, at items (1) to (5) in each of the three statements relating to accounts (1), (10) and (2) were not paid in time because of serious labour trouble. It was stated in the representation filed, that during that period there was a lockout in the factory. In dealing with this, the competent authority in Para. 4, Sub-para. (iii) has stated as follows:

“At no time the establishment had informed the authority under the Act about labour trouble/unrest, etc. Even if it was there, it might be due to the faults and mismanagement on the part of the establishment itself. There is no merit in the establishment's submission. The establishment has failed to satisfy me on this point.”

According to the competent authority, the petitioner could not take advantage of the lockout or strike for two reasons, namely,

(1) that the petitioner had not informed the competent authority about this trouble or unrest; and

secondly, even if there was some trouble or unrest, it might be due to the faults and mismanagement on the part of the petitioner itself.

In annexure 2 which was in reply to the notice sent by the competent authority it was stated that the provident fund for the aforesaid periods could not be paid in time because of slow-down, tool-down strikes and lockout. First lockout on 31 March 1972, had been lifted on 22 April 1972, but as the situation did not improve, a second lockout had to be declared which continued up to 13 July 1972. It was also stated that information about this had been sent to the competent authority by letter No. 72/2054, dated 2 August 1972, copy of which has been appended to this writ application as annexure 4. In the representation filed by the petitioner, copy of which is annexure 3, it was restated that there had been lockout, disturbances and strikes in the factory in the aforesaid period, about which information had been sent to the competent authority by annexure 4. It would also be relevant to point out here that along with the letter, dated 2 August 1972, copy of which is annexure 4, the petitioner had sent various cheques with regard to the contributions directly to the competent authority for the reasons stated in that letter. The date of the cheques are also given in this letter and they are all, dated 31 July 1972. In the concluding portion of that letter reference has been made to the lockout from March to 12 July 1972. By going through the statement appended to the order, I find that the deposit for the months from February to June 1972, were made, as shown in the statement to be on 31 July 1972. In such circumstances, it is very likely that the aforesaid letter had been sent to the competent authority.

As such the first reason given by the competent authority that information about the lockout had not been sent to him seems to be an error of record.

Second reason given that even if there was a lockout it was because of the fault and mismanagement on the part of the establishment is based on no material at all.

It is completely speculative. I am, therefore, inclined to hold that the reasons given by the competent authority for rejecting the plea of lockout as a circumstance of not making payment in time cannot be sustained.

13. In their representation, the petitioner had also specifically stated that the contribution for July 1974, which is item (4) in the second page of statement of account (1) as also the same item in the second page of the statement of account (10) and also bearing the same item number in the second page of statement of account (2) could not be made on 15 August 1974, as it was holiday being Independence Day. Similarly for August 1974, the contribution could not be paid on 15 September 1974, because it was Sunday and was paid on 16 September 1974. In the statement, however, it is stated under column (4), that the deposits with regard to these two items were made on 19 August and 18 September 1974, respectively. In their petition in this Court the petitioner have specifically stated in Para. 14 of their petition that the contribution for August 1974 was made on 16 as 15 September 1974 was a Sunday. In the counter-affidavit which has been filed by the respondents, this statement has not been denied. In the impugned order, however, it has been said that if the 15th was Sunday or holiday, payment was not made on the immediate following working day. There is nothing in the order to show whether the petitioner's specific plea with regard to the payments made on the immediate following days were considered by the competent authority. Therefore, to that extent there has been to my mind, non-consideration of the representation filed by the petitioner.

14. The Standing Counsel appearing on behalf of the respondents strenuously urged before us that these matters were not open to our consideration in an application under Arts. 226 and 227 of the Constitution. It cannot be disputed that this Court sitting in its writ jurisdiction cannot sit in appeal over the order passed by the competent authority but as I have already said above, this Court can enquire into the question whether the competent authority in determining the damages has applied his mind to the facts and circumstances of the case. I have shown above that with regard to certain defaults, the competent authority has not applied his mind to the facts and circumstances of the case. The Standing Counsel thereafter argued that in any case, there was no material before respondent 1 which would prove that there was lockout as claimed by the petitioner or that the payment had been made on the day following Sunday when the 15th of the following month was holiday and for these submissions of his, he relied upon a decision of Bareilly Electricity Supply Company, Ltd. v. Workmen [(1971) 2 SCC 617 : A.I.R 1972 S.C 330]. That was a case relating to industrial dispute in which it was observed that the filing of document does not amount to proof of them unless these are either admitted by the respondents or proved. In absence of such admission or proof they did not become admitted in the case. This principle has been stated in Para. 14 of their judgment. I am of the view that the principle enunciated has no application to the instant case for assessing damages. There is no question of proving any fact. Certain circumstances were brought to the notice of the competent authority for the purpose of assessing damages. If in considering these circumstances, the competent authority decided to act under S. 7 A of the Provident Funds Act and hold an enquiry then for that purpose he has certain powers given to him as provided under the Code of Civil Procedure. It is, however, incumbent on the authority concerned to consider the representation itself and other materials before him. In the instant case I have shown that the competent authority has not applied his mind to the representation or show cause filed by the petitioner. I am, therefore, of the view that the order imposing damages on the petitioner, copy of which is annexure 5 is not in accordance with law.

15. Sri Tara Kishore Prasad further urged that in assessing the damages the competent authority has only to consider the amount of loss to the beneficiaries under the scheme and that is the only amount that can be imposed as damages. In support of this submission reliance was placed upon a decision of a single Judge of Kerala High Court in the case of Bharat Plywood and Timber Products (Private), Ltd. v. Employees' Provident Fund Commissioner, Trivandum [1977 — I L.L.N 464]. Paragraphs 6 and 7 of the decision are in the following terms at pages 465 and 466:

“6. Section 14B clearly indicates that an employer is liable to pay damages if he has made default in payment of the contribution. Merely because the amount had been paid earlier to the order under S. 14B, it cannot be contended that there was no default in payment on the due date if the amount was paid only subsequent to the due date. Any delay in paying the amount under S. 6 causes loss to the beneficiaries of the scheme, such as loss of interest and the like. This is the loss that is sought to be recovered from the defaulter for the purpose of indemnifying the beneficiaries of the scheme — namely, the employees — to the extent of the loss suffered. The defaulter under S. 14B is, therefore, liable to pay damages which represent the loss; but not anything more, as such recovery would amount to penalty and that is not permitted under the section.

7. This aspect of the question does not seem to have been considered by the respondent although, upon the petitioner's representation, exhibit P4 was modified by exhibit P7 by reducing the amount from 25 per cent to 10 per cent of the arrears. I would, therefore, quash exhibits P3, P8 and P9, and direct the respondents to compute the actual loss which can be recovered from the petitioner by way of damages within the scope of S. 14B, as indicated above, and pass appropriate orders in respect of the periods covered by exhibits P3, P8 and P9. Subject to what is stated above, the original petition is allowed and the parties are directed to bear their respective costs.”

With respect, I am unable to agree with the observations of the learned Judge. Section 1 B of the Provident Funds Act provides that when there has been a default, the competent authority may recover from the employers such damages not exceeding the amount of arrears as it may think fit to impose. 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. I am, accordingly, of the view that in assessing the damages, the competent authority is not bound only to take into account the loss to the beneficiaries. As pointed out in the case of Mysore Bangle Works v. State of Mysore [(1971), 40 F.J.R 247], a Bench of the Mysore High Court pointed out that the default on the part of the employer may not be wilful but innocent (sic). Sometimes, the reasons may be beyond the control of the employer, such as strikes, lockouts and political disturbances, etc. I am, therefore, of the view that if there was a lockout, etc., it is a matter for consideration by the competent authority firstly to determine whether there was such a lockout, etc., or not and also to determine whether because of such lockout, etc., the default was beyond the control of the defaulter.

16. Sri Prasad has also urged that in view of the fact that notices for defaults were issued to the petitioner in 1976 and some of the defaults had occurred in 1972, the competent authority should not have imposed any damage for those periods. For this, learned counsel relied upon the case of Allahabad Canning Company v. Regional Provident Fund Commissioner, Uttar Pradesh, Kanpur [1976 — I L.L.N 211]. In that case R.L Gulati, J., sitting alone, has observed that the proceeding under S. 14B for the levy and recovery of damages for non-payment of contributions in time should be passed as expeditiously as possible and if it is passed with inordinate delay (five years in this case), the employer may well presume that the Government had condoned the delay and had decided not to demand any damages. In the peculiar circumstances of that case it was held that the petitioner was well within its right to presume that the Government had condoned the delay. That case was decided on its own facts. However, if it was laid down as a principle that whenever there was inordinate delay in making or imposing damages under S. 14B, the delay would amount to condonation, then with respect, I am unable to agree, because in the Provident Funds Act there is nothing to indicate that if there has been delay in initiating the proceeding under S. 14B of the Act then the consequence will be that damages will be time-barred or deemed to be condoned.

17. Sri Standing Counsel had also urged that the present petition was not maintainable in view of the Art. 226 of the Constitution inasmuch as according to learned counsel the writ application is not covered by either Sub-cls. (a), (b) or Sub-cl. (c) of Cl. (1) of Art. 226. Sub-clause (c) provides that writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari would lie for any injury by reason of any illegality in any proceeding by or before any authority under any provision referred to in Sub-cl. (b) where such illegality has resulted in substantial failure of justice. I have already held that there has been an illegality by an authority under an enactment as referred to in Sub-cl. (b) of Art. 226(1) and such illegality has resulted in substantial failure of justice inasmuch as the petitioner has been called upon to pay a large sum of over four lakhs and odd. Accordingly this submission fails.

18. In the result I would quash annexures 5 and 6 and direct that the competent authority again assess the damages with regard to the defaults, notice of which has been given by annexure 1. For reasons given above, annexure 1 cannot be quashed.

19. Before parting with this judgment, however, I would like to draw the attention of the competent authority to another aspect of the matter. In the statements which are appended to the impugned order, annexure 5, column (5) reads as “period of delay including five days grace.” Although no reference was made to this period of five days grace in the representation filed by the petitioner before the competent authority nor any reference had been made in the writ application itself, it was submitted that if there is a period of grace for making contributions then there are various items in those statements wherein the payments were made in time. As no reference was made even in the writ application regarding this aspect, learned Standing Counsel was not in a position to throw any light on this. We therefore, think it proper to observe that the competent authority in making a reappraisal of the damages will take into account whatever is meant by that five days grace as is shown in column (5) of the statements.

20. In the result this application is allowed and annexures 5 and 6 are quashed and the case is sent back to respondent 1 for reconsideration of the damages. In the circumstances of the case, I would make no order as to cost.

21. When this case was admitted on 24 February 1977, a direction was given by the Court that the petitioner should deposit in this Court to the credit of respondent 1, a sum of Rs. 50,000 in cash within six weeks from today. I further direct that this sum shall remain in deposit to the credit of respondent 1 till he has finally decided the question of damages.

22. Manoranjan Prasad, J.:— I agree.