Majmudar, J.:— In this petition tinder Art. 227 of the Constitution of India, wrongly stated as one under Art. 226 of the Constitution of India, the petitioner-mills-company, which is running a textile mills at Adipur in Kutch District, has challenged the order passed by the Regional Provident Fund Commissioner, Gujarat State, respondent 1 herein, in exercise of the power under S. 14-B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act), imposing damages on the petitioner-company for having committed default in remitting the provident fund contributions of the employees as well as of the petitioner company to the concerned authority under the Act in time. The first respondent by the impugned order at annexure A, has imposed total penalty of Rs. 45,267,40 on the petitioner for having committed various defaults during the period October 1968 to October 1971.

2. In order to appreciate the grievance of the petitioner centering round the impugned order it is necessary to note a few relevant facts leading to the present proceedings. The petitioner-company is running its textile mills, as stated above, at Adipur in Kutch District. As per the provisions of the Act, it is liable to collect this provident fund contribution of the employees and to remit the same to the authorities within the time prescribed by the rules. The petitioner-company has also to supplement the same by its own contribution within the prescribed time. The petitioner was served with a show-cause notice, dated 12 February 1982, to show cause why damages as envisaged under S. 14-B of the Act be not levied and recovered from the petitioner for default in timely payment of provident fund contributions. In response to the show-cause notice issued, the petitioner-mill-company showed cause and submitted that it could not remit these amounts in time because of non-availability of trained staff in the remote area of Kutch and that it could not get proper guidance in the matter. This was the only defence put forward to the authorities by the petitioner in opposition to the show-cause notice. Ultimately, the competent authority after hearing the petitioner's representative, Sri Israni, passed the impugned order.

3. Learned counsel for the petitioner raised the following contentions in support of the petition:

(1) The defaults in question were committeed by the petitioner-company between October 1968 and October 1971, while the show-cause notice under S. 14-B of the Act was issued on the petitioner-mill-company as late as on 12 February 1982. Thus, the proceedings were initiated after gross delay spread over almost 11 to 14 years, counting backward from the last default of October 1971 and going back to the first default of October 1958 and therefore, on account of this gross delay, the proceedings have got vitiated and amount to denial of basic principles of natural justice and fair play, and consequently the impugned order is liable to be quashed and set aside.

(2) In any case, the impugned order suffers from total non-application of mind. It is mechanically passed and in an arbitrary manner different percentages of damages have been assessed qua different defaults and hence also the order is liable to be quashed.

(3) The impugned order suffers from patent errors of law and jurisdiction inasmuch as the first respondent has wrongly applied the provisions of S. 14-B of the Act as amended by the Amending Act 14 of 1973 which came into force on 1 November 1973, that as the defaults were committed prior to 1 November 1973, it is the unamended provision of S. 14-B of the Act which would apply to the facts of the present case and as that provision is not applied the impugned order suffers from patent errors of law and jurisdiction.

(4) The impugned order is also contrary to the binding circulars issued by the appropriate authority guiding the respondent 1 in the exercise of his powers under S. 14-B of the Act.

We shall deal with these contentions seriatim.

4. So far as the first contention is concerned, it must be kept in view that S. 14-B of the Act authorises the competent authority to recover from the employers damages in cases where the employers make default in payment of any contribution towards provident fund. It is not in dispute that the petitioner-employer had to make payment of the contributions collected from the wages of the employees as well as of its own contribution to the competent authority under the Act for the welfare of the workmen. It is also not in dispute that between October 1968 and October 1971, the petitioner-company made 28 such defaults as are tabulated in the statement at annexure A, the first default covering the contribution for the months of October, November and December, 1968. It is also not in dispute that for these defaults in remission of the provident fund contribution to the authorities, show-cause notice under S. 14-B of the Act was issued to the petitioner on 12 February 1982. However, so far as S. 14-B is concerned, there is no period of limitation prescribed within which action for the recovery of the damages can be instituted against the defaulter. It is to be realised that amounts of provident fund dues consist of deductions made from wages of the workers as well. If an employer deducts these contributions from wages and sits tight over them, he, as a trustee, is liable to account for the same at any time. It is no defence for him to say that he will cease to be accountable after a given fixed period. Legislature has advisedly not prescribed any period of limitation for issuing show-cause notice against such defaulting trustees-employers. It is also to be noted that the Act is a beneficial piece of legislation meant for the welfare of weaker sections of society, namely the employees. Such employees have no control over the acts and omissions of authorities exercising their powers under the Act. If such authority out of negligence or otherwise fails to issue show-cause notice against defaulting employer promptly, there is no rhyme or reason why innocent beneficiary employees who are third parties should suffer thereby. The only question that would really survive is the one whether on the facts and circumstances of a given case, the show-cause notice issued after lapse of time can be said to be issued beyond reasonable time. The test whether lapse of time is reasonable or not will depend upon the further fact whether the employer in the meantime has changed his position to his detriment and is likely to be irretrievably prejudiced by the belated issuance of such a show-cause notice. If such defence is not pleaded and proved, challenge on the ground of late issuance of notice must stand rejected. It is interesting to note that, in reply to the show-cause notice, the petitioner nowhere pointed out to the authority concerned that only because of the late issuance of the notice it was prejudiced in any manner and that in the meantime relevant record was not available on the basis of which it could defend its action. In fact, the commission of defaults was an admitted position. Only defence put forward by the petitioner before the competent authority as noted earlier was that competent staff was not available in the remote area of Kutch and nobody guided the petitioner. These two defences were patently untenable and were rightly rejected by the competent authority. As no argument was raised by the petitioner before the competent authority that because of the late issuance of the notice it was in any manner prejudicially affected, the argument of delay cannot be of any assistance to the learned counsel for the petitioner, in the facts and circumstances of this case. Reliance placed by the learned counsel for the petitioner on a decision of this Court in Mohanbhai Dungarbhai Parmar v. Y.B Zala [19???9 — II L.L.N 344] is also beside the point. In that case the question before the Court was as to whether the late initiation of departmental proceeding; against employee in connection with the certain misconduct would impinge upon reasonable opportunity given to the employee for meeting with the charges and whether it would amount to violation of principles of natural justice. In that case a police constable had remained absent in the morning parade and on some other occasion he was found absent when roll call was taken daring the course of one month between 15 November, 1971 and 15 December 1971. For this misconduct departmental proceedings were initiated against that constable about 1½ years thereafter by a chargesheet. On these facts it was found by the Court that when such factual allegations were made against the employee and when long period elapsed between the alleged misconduct and the show-cause notice, it would be impossible for the delinquent to remember as to why he had remained absent before 1½ years at the time of roll-call. Therefore, on the facts of that case the principles of natural justice were found to be violated. We fail to appreciate how the ratio of this judgment can be of any assistance to the petitioner in this case. In the present case even though the show-cause notice was issued on 12 February 1982, regarding the defaults committed between 1968 and 1971 with regard to the remission of the provident fund contribution to the authorities, it was not the case of the petitioner before the authorities that it was not able to cross check from its record about this fact. On the contrary, it has admitted these defaults before the competent authority. Its only defence was non-availability of trained staff and non-availability of proper advice, which were put forward as the causes of defaults. Hence no question of violation of principles of natural justice would survive on these facts. Consequently merely on the ground of late issuance of show-cause notice the present proceedings cannot be found fault with.

5. Learned counsel for the petitioner in this connection-heavily relied upon a decision of a learned Single Judge of Punjab High Court in Amin Chand and Sons v. State of Punjab [A.I.R 1965 Pun. 441]. In that decision it was held by the learned Single Judge that technically the damages should have been levied immediately after the default and it was legitimate for the employer to have thought that the Government had decided not to exercise its discretion to levy damages. To choose a date to levy damages after six years was arbitrary and had resulted in operation of law very harshly and the Court is entitled to interfere in its writ jurisdiction. It is difficult to subscribe to the aforesaid view of the learned Single Judge of Punjab High Court inasmuch as no such period of limitation has been prescribed by the legislation while enacting S. 14-B. Secondly, merely because the delay ensues in issuing the show-cause notice that by itself cannot be treated to amount to arbitrary exercise of powers in the absence of anything more and unless prejudice thereby to the employer is alleged and proved. Merely on the ground of delay in issuing such show-cause notice it cannot be automatically held that the proceedings suffer from arbitrariness. With respect to the learned Single Judge of the Punjab High Court, we cannot agree with this unwarranted assumption in the aforesaid, decision. We may, in this connection note that the aforesaid view of the learned Single Judge of the Punjab High Court has not been accepted by various other High Courts. In Regional Provident Fund Commissioner v. Allahbad Canning Company [1978 L. & I. C 998] (Allahabad), the Allahabad High Court disapproved the aforesaid view of the learned Single Judge of the Punjab High Court. The said decision was followed by another decision in the case of Shyam Glass Works v. State of Uttar Pradesh [1979 — I L.L.N 244]. Similar view was also taken by a Division Beach of the Andhra Pradesh High Court in the case Divisional Engineer, Andhra Pradesh State Electricity Board v. Regional Provident Fund Commissioner, Hyderabad [1979 L. & I.C 187], wherein the Andhra Pradesh High Court also referred with approval to a similar view taken in an unreported decision of the Delhi High Court in Civil Writ Petition No. 193 of 1976 in the case of Lajrat Potteries (Private), Ltd v. Regional Provident Fund Commissioner, Delhi. In the case of Hindustan Malleables and Forgings, Ltd. v. Regional Provident Fund Commissioner [1978 L. & I.C 930] a Division Bench of the Patna High Court also took the same view. Thus, the decision of the learned Single Judge of the Punjab High Court is not approved by, the aforesaid other High Courts. Similarly, Karnataka High Court in S.H Salve Kadam and Company, Nipani v. Regional Provident Fund Commissioner, Bangalore [1981 L. & I.C 568], his also struck a dissenting note. Thus, there are decisions of various High Courts taking a contrary view to the one put forward in the solitary decision of the learned Single Judge of the Punjab High Court. We agree with the view taken by these various High Courts and respectfully dissent from the view taken by the learned Single Judge of the Punjab High Court. So far as this High Court is concerned, without noticing this difference of opinion, a Division Bench of this Court consisting of M.P Thakkar (as he then was) and R.C Mankad, JJ., in Special Civil Application No. 3738 of 1980, decided on 20 April, 1981 has also taken the view that mere delay in initiating proceedings under S. 14-B of the Act does not result into any fatal consequences and delayed issuance of the show-cause notice to the concerned employer in fact is a favourable circumstance for the employer. M.P Thakkar, J. (as he then was) speaking for the Division Bench, made the following pertinent observations in this connection:

“The next submission is that there has been considerable delay in invoking the power under S. 14-B. This submission conveniently overlooks that the delay far from causing any prejudice to the petitioner has in fact benefited the petitioner. Otherwise the damages amounting to approximately Rs. 55,000 for the period prior to 1973 or so would have had to be paid in 1973. Since this penalty is being levied now in 1931, the petitioner has benefited to the extent of more than 100 per cent even if we were to take into account a modest rate of interest of only 12 per cent. In other words, the damages stand abated wholly and the petitioner is only paying interest on the damages which he is liable to pay. He is not paying the penalty at all. He is retaining the corpus and only paying interest thereon. We do not think that in the facts and circumstances of this case it would be open to the petitioner to contend that damages should have been levied against them earlier or that they should have been prosecuted earlier instead of issuing a notice after a time-lag. No time-limit has been provided in the Act and as the petitioner has been benefited to a considerable extent by the delay instead of being prejudiced thereby, we do not think that the matter calls for interference on our part in exercise of high prerogative powers under Art. 227 of the Constitution.”

We respectfully concur with the aforesaid view of the Division Bench, which as shown earlier seems parallel to the view of the various High Courts save and except the view of the learned Single Judge of the Punjab High Court. The facts of the present case are almost identical to the facts of the case before the aforesaid Division Bench of this Court and, therefore, the ratio of the above decision squarely applies to the facts of the present case. For all these reasons, the first contention of the learned counsel for the petitioner has to be rejected.

6. That takes us to the consideration of the second contention of the learned counsel for the petitioner, ft has been submitted by the learned counsel for the petitioner that almost in a mechanical fashion different rates of damages from 2 per cent to 25 pet-cent on different defaults committed by the petitioner during the relevant time were imposed. Placing reliance on Para. 2 of the review application moved by the petitioner before the authority it was pointed out that for 53 days' default in remitting the provident fund dues for the month of February 1969 the percentage of damages levied was 10 per cent while for the default of 8 days in the month of November 1969, 25 per cent of arrears were levied as damages. Thus, the authority has acted in highly arbitrary fashion in passing the impugned order and in ordering damages to be paid by the petitioner. In this connection reliance was placed on a decision in R. Fernandes v. State of Mysore. [A.I.R 1969 Mysore 196], wherein it has been observed that the damages under S. 14-B are in the nature of punishment and it is the duty of the appropriate Government to decide in every case which arises before it whether to recover any damages and if so their quantum. Reliance was also placed in the case of H.R Gandhi v. State of Haryana [1982 — I L.L.N 536], wherein the learned Single Judge of the Punjab and Haryana High Court has held that the authority under S. 14-B of the Act has to apply its mind in each case before determining damages. It cannot apply sliding formula of penalties rigidly. There cannot be any dispute on this legal position. However, from the facts of the present case we do not find anything from the order of the first respondent to show that he has mechanically passed the impugned order without application of mind. It is interesting to note that along with the impugned order served to the petitioner, a statement indicating month-wise defaults during the relevant period beginning from October 1969 and ending in October 1971 with all details about the amounts involved and the extent of delay for remitting those amounts after the due dates of payment to the authority was also served. The said statement indicates how the first respondent applied his mind in case of individual defaults and came to his conclusion qua each default. He has further stated in the impugned order that the only defence of the petitioner for committing these defaults was non-availability of trained staff in the remote area of Kutch and non-availability of any kind of guidance in this respect. That defence was rightly rejected by the competent authority on the ground that the employer was not justified in suspending (sic) the statutory amount of provident fund and other dues on the ground of non-availability of trained staff. It was also observed that it is obligatory on the part of the establishment to manage and plan its business activities in such a manner which suits better while discharging its statutory obligations, Ignorance of law is no excuse and that the work, regarding payment of provident fund dues is not a technical one which would require specialised knowledge. Any person with ordinary knowledge can make the payment in time if he has mind to pay. No fault can be found with the aforesaid reasoning adopted by the first respondent.

7. So far as the computation of the damages is concerned it is found from the statement accompanying the impugned order that the petitioner had committed three defaults in the months of October, November and December 1968. These three defaults were taken as first default and 10 per cent per annum up to 15 February 1969, was fixed as the rate of damages, i.e, at the rate of less than 1 per cent per month for the defaults of October, November and December 1968. Thereafter the authority has considered the defaults committed in the next year 1969. Even these defaults are taken as defaults first to seventh for the relevant months of 1969 i.e, January to May and October and November 1969. So far as these defaults of 1969 are concerned, damages are levied at the rate of 2 per cent for the first default of 1969, while for the second and third defaults for the months of February and March 1969 damages are computed at the rate of 10 per cent. Damages for the fourth and fifth defaults have been computed at 20 per cent and thereafter for the sixth and seventh defaults the damages have been computed at 25 per cent per each default. Thereafter till the 28th default—the last default of October 1971 the damages have been computed at 25 per cent of arrears of each default. Thus, it is not possible to agree with the submission of the learned counsel for the petitioner that the damages are considered at flat rate for all defaults without considering the case of each and every default. On the contrary the statement regarding the computation of the damages, annexed to the impugned order, clearly shows that the authority has considered each default separately, its gravity, due date of payment etc., and imposed reasonable rates of damages. Thus, the damages imposed have been increased on a sliding scale from less than 1 per cent to 25 per cent. Learned counsel for the petitioner tried to make a capital out of the endorsement made at the beginning of CI. 10 of the statement accompanying the impugned order which reads —”10 per cent per annum up to 15 February, 1969 and 2 per cent for further defaults.” It appears that the authority decided to impose for the year 1968 damages at the rate of 10 per cent per annum for the arrears up to 15 February, 1969 and thereafter the rates of damages were fixed on a gradually mounting scale from 2 per cent to 25 per cent till the last default. The instalments of October, November and December 1968 were not paid till 13 March 1969. However, for this period two rates of damages were applied. Up to 15 February 1969, the rate was 10 per cent per annum i.e, less than 1 per cent per month for arrears for the said monthly defaults and the rate was raised to 2 per cent of total, amounts of all these three instalments from 11 February, 1969 to 13 March 1969, treating them as first default of year 1969. This exercise on the part of the competent authority, as revealed from the statement forming part of the order shows full and meticulous application of mind to each and every default and not any mechanical or stereotype application of mind as suggested by the learned counsel for the petitioner. Once the defaults got multiplied and became almost a recurring feature the rate of damages was increased on a sliding scale. Repetitive defaults which became almost chronic in character were rightly subjected to heavier rates of damages. It is, therefore, found that the first respondent considered all the defaults in their proper perspective and no fault could be found in his order. It is also pertinent to note that the first respondent has noted in the impugned order that having regard to the circumstances, persistency and length of each default, he felt that the object would be served if damages are levied at the rates indicated in the enclosed statement instead of 100 per cent as proposed in the show-cause notice. When the impugned order is read with the details of the accompanying statement no doubt is left in our mind that the first respondent had applied its mind to the individual defaults, their gravity and then decided to levy the necessary damages. Hence it is not possible to agree with the submission of the learned counsel for the petitioner that the damages have been imposed in any mechanical or arbitrary manner or that the impugned order suffers from any patent error of law. On the contrary it is found that the order is well sustainable on the facts of the case emerging on the record before the first respondent and in exercise of his judicial discretion he was quite justified in passing the impugned order. The second contention of the learned counsel for the petitioner, therefore, fails.

8. That takes us to the next contention canvassed by the learned counsel for the petitioner It has been vehemently submitted that the defaults in question covered a period from 1968 to 1971; that these defaults made the petitioner to incur the liability to be proceeded against under the Act both by way of damages and by way of penal action. So far as the damages are concerned, S. 14-B of the Act at the relevant time provided that when an employer makes default in the payment of any contribution to the provident fund, the authority may recover from the employer damages to the tune of ???5 per cent of the amount that may be in default. Section 14-B underwent amendment on 1 November 1973, whereby the upper limit of 25 per cent damages was substituted by the words “not exceeding the amount of arrears.” meaning thereby that after 1 November 1973, the authority can impose in a given and appropriate case damages upto 100 per cent of the arrears in default. It was, therefore, contended that so for as the defaults in the present case are concerned, the authority had no jursidiction to impose damages at the rate of cent per cent of the arrears, as the amended provision could not have been applied at the relevant time when the defaults were committed. It was then submitted placing reliance on the following observations from the impugned order that the impugned order suffers from a patent error of law and is based on total misconception of correct legal position. The relevant observations run as under:

“For the reasons stated above, I, K.M Bhatt, Regional Provident Fund Commissioner, Gujarat State, Ahmedabad, in exercise of the powers conferred on me by S. 14-B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, think fit and having regard to the circumstances, persistency and length of each default, I feel that the object would be served if damages are levied at the rates indicated in the enclosed statement instead of 100 percent as proposed in the show-cause notice.”

It was vehemently submitted that the aforesaid observations of the first respondent in the impugned order clearly show that the first respondent was of the view that on the facts of the present case he could impose the damages to the extent of 100 per cent. It was further contended that the first respondent has passed the impugned order on the wrong assumption that amended S. 14-B of the Act applies to the facts of the case, when in fact, only unamended provisions of the Act would apply. It was submitted that if the first respondent was alive to this correct legal position, he would have in his discretion imposed less than the maximum permissible damages for defaults Nos. 6 to 28. This according to the learned counsel for the petitioner, exhibits a clear error of law and jurisdiction on the part of the first respondent. Learned counsel for the petitioner submitted that in that view of the matter the impugned order should be quashed and the proceedings should be remanded with a direction to the first respondent to reassess the damages in accordance with law.

9. At first glance the aforesaid argument of the learned counsel for the petitioner appears to be attractive and formidable but on closer scrutiny it falls through as we will presently show. It is no doubt true that in the present case the petitioner was called upon to show cause why damages at 100 per cent of arrears should not be imposed for the defaults. Thus, the show-cause notice clearly purported to invoke the amended provision of S. 14-B as existing on the statute book in 1982, when the notice was issued. However, that is neither here nor there. So far as the exercise of power under S. 14-B of the Act is concerned, it is to be seen whether such exercise is in any way contrary to law or without jurisdiction. If it is so found then the impugned order would get vitiated. The aforesaid observations of the first respondent in the impugned order on which great reliance was placed by learned counsel for the petitioner are equivocal in nature. They indicate that even though the show-cause notice proposed 100 per cent damages, so far as the concerned officer was concerned, he only chose to levy damages from 2 per cent to 25 per cent for the concerned defaults and was inclined to do so looking to the circumstances, persistency and length of each default. It is equally possible to contend that the first respondent while making the said observations was inclined to think that though he had power to impose damages to the extent of 100 per cent he thought fit to impose maximum damages at the rate of ¼th of the permissible rate, i.e, 25 per cent only. However, the impugned order nowhere indicates that the first respondent in exercise of his discretion had decided to impose ¼th of the maximum permissible damages. If such an indication was in the order under challenge the learned counsel for the petitioner would have been on a strong footing, but it is not there. Under these circumstances, it is not possible to agree with the contention of the learned counsel for the petitioner that the first respondent was inclined to award less than permissible damages for defaults Nos. 6 to 28. It is pertinent to note that at the relevant time when these defaults were committed unamended provisions of S. 14-B permitted the competent authority to impose maximum damages to the tune of 25 per cent of the arrears involved in the concerned defaults. On the facts of the present case it is neither shown nor alleged by the learned counsel for the petitioner that the first respondent had imposed more than 25 per cent of arrears as damages for any default. Thus, the impugned order as it stands is perfectly within the scope and ambit of the jurisdiction of the authority as existed at the relevant time when the unamended provision of S. 14-B held the field. The learned counsel for the petitioner would have been on a very firm footing if the first respondent would have imposed damages at any rate more than 25 per cent, but on the facts of the present case, he has not done so. Thus, at the highest what can be urged on behalf of the petitioner is that even though the final order is within the permissible limit, the reasoning adopted by the first respondent is erroneous. But such allegedly erroneous reasoning cannot have any vitiating effect if the final order is within the permissible limits. On the facts of the present case it cannot be said that the impugned order in any way violated the provisions of unamended S. .14-B of the Act which held the field prior to its amendment on 1 November 1972. In this view of the matter we have not thought it fit to consider the question as to whether the amended provisions of S. 14-B of the Act which were applicable at the time of show-cause notice, could be pressed in service by the first respondent for fixing the damages for the defaults that were committed by the employer prior to 1 November 1973, when S. 14-B was amended. On the facts of the present case, it cannot be held, as contended by the learned counsel for the petitioner that the impugned order is contrary to the unamended provisions of S. 14-B or that the discretion in imposing the damages for the various defaults is vitiated from any jurisdictional error or any belated error of law or the facts. All that the order under challenge indicates is that even though the show-cause notice proposed to levy damages at 100 per cent, the competent authority thought it fit to remain within the permissible limit of 25 per cent as indicated in the statement, annexed to the impugned order. This contention, therefore, has also to be rejected.

10. Before parting with this contention it is necessary to note two decisions on the point. In the case of Arvind Mills, Ltd. v. R.M Gandhi [22 G.L.R 994] a Division Bench of this Court consisting of M.P Thakkar and R.C Mankad, JJ., has considered the scope and ambit of the proceedings under Art. 227 of the Constitution of India in connection with the orders passed under S. 14-B of the Act imposing damages against the defaulting employers who do not promptly remit the provident fund contribution of the employee along with their own contributions. M.P Thakkar, J. (as he then was) speaking for the Division Bench has made the following observations:

“The High Court in exercising powers under Art. 227 of the Constitution will not convert the proceeding virtually into an appeal against the impugned order. The High Court will not substitute its determination in place of the determination made by the competent authority. It is not for the High Court to consider to what extent damages should have been levied by the High Court if it was exercising the powers which have been exercised by the competent authority in passing the impugned order. In other words, this petition cannot be treated as virtually an appeal on merits against the impugned order. So also it is not necessary in order to uphold the order passed by the competent authority that the High Court must agree with each and every of the reasons which weighed with him or agree with every word said by him in his impugned order. As laid down by the Supreme Court, it is open to the competent authority to levy damages to the extent of 100 per cent and that the order determining damages, will not become vulnerable merely on the ground that in respect of certain items 100 per cent damages have been imposed. It may also be realised that payments were not made notwithstanding the fact that actual deductions were made from the wages of the workmen from time to time. In other words, the deductions from the wages of the workmen were also retained by the mill apart from the fact that it did not deposit the amount which was required to be deposited on its part as per the requirement of the relevant provisions of the Act and the scheme. The High Court, therefore, will not use its power under Art. 227 of the Constitution in such a case.”

The other decision is of the Supreme Court, in the case of State of Karnataka v. Munivalla [(1985) 1 SCC 196 : A.I.R 1985 S.C 470]. The Supreme Court speaking through P.N Bhagwati, J. (as he then was) has held that, it is now well settled that merely because an order is purported to be made under a wrong provision of law, it does not become invalid so long as there is some other provision of law under which the order could be validly made. Mere recital of a wrong provision of law does not have the effect of invalidating an order which is otherwise within the power of the authority making it. Consequently it cannot be said that merely because the first respondent has assumed (which on the facts of this case he does not clearly appear to have assumed, as seen above) that he had authority to impose penalty at 100 per cent of the arrears, his order would in no way get vitiated as in fact the order has imposed damages up to the permissible limit of 25 per cent under S. 14-B of the Act as applicable at the relevant time. The third contention of the learned counsel for the petitioner also, therefore, stands rejected.

11. That takes us to the last contention raised by the learned counsel for the petitioner. This contention springs out of the amendment granted by us today. It was submitted that there are certain relevant circulars issued by the Central Provident Fund Commissioner laying down the guidelines for the exercise of power under S. 14-B indicating as to how the competent authority should compute damages in concerned cases and that the present order has been passed without following the said guidelines and hence it is bad. So far as this contention is concerned, learned standing counsel for the respondent has made available to us the relevant circulars mentioned in Para. 9 C of the petition. The gist of the circulars is also found printed in “Commentaries on Employees' Provident Funds and Miscellaneous Provisions Act, 1952 4th Edn., by K.D Srivastava, published by Eastern Book Company, Lucknow. Even though this is a petition under Art. 227 of the Constitution of India and even though no such contention, based on such factual aspects, was canvassed before the first respondent, in the interest of justice we have permitted the learned counsel for the petitioner to urge this point as taken up by way of amendment of the petition. Circular No. E. 128(I)/60-I, dated 29 March 1963, as revised by Circular No. E-128(1)/60-III, dated 18 April 1964, as reproduced at page 720 of the aforesaid Commenctary, provides as under:

“It is not the intention to recover damages at the new rates from establishments that have been discovered and found to implement the statutory provisions from an earlier date. In such cases the period of discovery may be divided into two groups. For the period prior to the enforcement of revised rates of damages by the State Government, damages at 6¼ per cent per annum may be levied. For the period subsequent to the enforcement, damages at the new rates should be levied. The non-payment of provident fund dues for the period subsequent to the enforcement of revised rates of damages up to the date of discovery should be deemed as the first default. If these dues are not paid before the 15th of the month following in which the coverage notice is issued, it will be treated as continued default and damages at the enhanced rates will be levied for the subsequent months.”

So far as this circular is concerned strictly speaking it would not apply as the relevant rates applicable at the time of defaults in question were rates upto 25 per cent of arrears and they were not at the rate of 6| per cent per annum as mentioned in the circular. It is interesting to note that the circular stood revised up to 1964 while we are concerned with the period from 1968 to 1971. So far as the second circular is concerned, it is Circular No. E-128(1).60.III, dated 19 March, 1964 as amended by Circular No. E-II/128, dated 24 October 1973. This circular mentions the grace period and reduction of rate of damages. It lays down how the grace, period is to be calculated in connection with each default. From the statement annexed to the impugned order it is not shown that the grace period was not allowed by the respondent 1 authority while computing the damages qua each of the defaults. So far as the third circular is concerned, it is Circular No. E-128(1).60.IV, dated 29 April 1967. All that this circular states is that the procedure laid down by earlier circular, dated 19 March 1964, as amended by circular, dated 24 October, 1973 can be adopted by the Regional Provident Fund Commissioners in view of the power delegated to them. That has nothing to do with the nature of the controversy raised for our consideration. It is not in dispute that the Regional Provident Fund Commissioner, respondent 1 herein, who has exercised power under S. 14-B of the Act, has computed the damages under S. 14-B of the Act. Thus, the aforesaid circulars on which reliance is placed are not found to be in any way violated by the impugned, order. Now remains the last Circular No. E/II-128, dated 24 October, 1973 and 3 January 1974. This circular is reproduced at item (32) at page 720 in the aforesaid book. The very caption of the circular reads “Procedure and Guidelines to be followed in regard to levy of damages after 1 November 1973.” It may be kept in view that the defaults in the present case are prior to 1 November 1973, i.e, prior to coming into force the amended S. 14-B, which empowers the authority to levy damages up to 100 per cent of the arrears. Thus, strictly speaking, this circular will be totally besides the point so far as the present case is concerned. However, great emphasis was placed by the learned counsel for the petitioner upon Cl. (iv) Sub-cl. (i), which reads as under:

“(iv) Following guidelines may while exercising the powers vested be observed under S. 14-B of the Act:

(i) It is not the intention to levy damages at the present rates from factories/establishments which have been discovered and covered retrospectively, i.e, in the case of discovered factories in respect of which coverage notices are issued after 1 November 1973. In these cases, the damages may be levied at the rate of 10 per cent per annum for amounts due up to date of issue of coverage notice. Demands on the current contributions may be levied in accordance with-the new rates. In the case of discovered factories in respect of which coverage notices are issued prior to 1 November 1973, damages at rates existing before issue of these orders may be levied.”

12. Now, so far as this clause is concerned, it must be kept in view that the procedure laid down therein covers two types of situations:

(1) where the coverage notices are issued after 1 November 1973; and

(2) where the coverage notices are issued prior to 1 November 1973.

In the present case, coverage notice under the Act was issued to the petitioner on 15 March 1969, as submitted by the learned counsel for the respondents. Therefore, last part of Cl. (1) can apply to the facts of the present case and as coverage notice was issued prior to 1 November 1973, damages at the rates existing before the issuance of circular, dated 24 October 1973, could be pressed in service. Statement annexed to the impugned order shows that old rates were in fact applied for all the 28 defaults. Therefore, on the very facts of the present case, even this circular is not found to be infringed.

13. In view of this factual position, reliance placed by the learned counsel for the petitioner on these circulars is of no avail to the petitioner and it cannot be said that the impugned order conflicts with any of these circulars. Even otherwise it must be kept in mind that when the authority exercises statutory quasi-judicial powers on the relevant facts of the case, mere issuance of such circulars cannot fetter its judicial discretion, statutorily vested in it. It is urged that these circulars must be rigidly followed. If that happens, it would lead to the fettering of the statutory judicial discretion of the authority by such circulars. Such a situation cannot be countenanced in law, in view of the express provisions of S. 14-B of the Act. This aspect of the matter is covered by two decisions of this Court. (1) In Special Civil Application No. 4401 of 1984, decided on 21 December, 1984 by a Division Bench of this Court, consisting of N.H Bhati and R.A Mehta, JJ. Mehta, J., speaking for the Division Bench considered this aspect of the matter in Para. 5 of the judgment and observed that the guidelines and the table of damages are issued with a view to guide the discretion so that there is uniformity and consistency, and arbitrariness and discrimination are avoided, But the discretion is not fettered. Even in the guidelines issued by the Central Provident Fund Commissioner and the Board of Trustees, it has been clearly mentioned that the discretion under S. 14-B of the Act is left with the Commissioner and guidelines have been merely as a guide and not as binding rule irrespective of the facts and circumstances of each case. (2) In this connection reliance is also placed in the said judgment on an earlier decision of the said Bench in Special Civil Application No. 1935 of 1984 and others decided on 7 December, 1984 which referred with approval an unreported decision of the Bombay High Court (Coram: S.P Bharucha, J.) in Miscellaneous Petition No. 723 of 1979 decided on 6 October 1932. Even in the decision of the Mysore High Court in the case of R. Fernandes [A.I.R 1969 Mysore 196] (vide supra), relied upon by the petitioner, it has been held that the circular issued, by the Regional Provident Fund Commissioner fixing various rates of damages to be levied upon the employer for the defaults committed by him cannot be mechanically applied without considering the facts of each case. The words “as it may think fit to impose” employed in 3. 14-B of the Act clearly display the legislative intent that in each case there should be an application of the mind of the appropriate Government to its relevant features which should guide the conclusion both on the question whether any damages should be demanded and of their quantum. The formation of the opinion that the case is a fit one for the demand for payment of damages and a particular sum of money as damages, is what S. 14-B clearly insists upon and it is plain that that opinion has to be independently in the case of each default to formed which S. 14-B refers. Thus, the table annexed to the impugned order was found to be totally beside the point.

14. In view of this settled legal position no blind reliance can be placed on the circulars and no rigid compliance thereof can be pressed in service for the invalidation of the impugned order and, therefore, despite these circulars the impugned order on its own merits has to either stand or fall and it cannot be submitted with emphasis that merely because it runs contrary to any guidelines of any circular it gets in any way vitiated. However, as we have already discussed, the impugned order nowhere conflicts with any of the circulars issued even presuming that they are binding upon the first respondent and even otherwise the order on merits is found to be well sustained on facts. The first respondent is found to have dealt with individual defaults on their own merits while imposing the rates of damages for the diverse defaults committed by the petitioners and is not found to have adopted any mechanical process for coming to his conclusion in the way he has done. Consequently, the last submission cannot be of any assistance to the learned counsel for the petitioner and it stands rejected.