Judgment :- 1. Heard the learned Advocates for the parties. 2. RULE. Rule made returnable forthwith and heard by consent of the parties. 3. By this Writ Petition, the Petitioner had challenged the Judgment and Order dated 11th July, 2011 passed by the learned Presiding Officer of Employees Provident Fund, Appellate Tribunal, New Delhi (EPFAT) in ATA No.774(9) 2009 whereby the Appeal filed by the Petitioner challenging an order under Section 14B of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (herein after referred as Act of 1952), has been dismissed. 4. Certain facts are not in dispute. The Petitioner had remitted EPF Contribution at 10%. On account of the fact that the Petitioner was given a sub-code number and was considered to be a part of another establishment of M/s. Asia Transport Company, a summons was issued on 12th December, 2006 for an enquiry under Section 7A of the said Act. Ultimately, the order was passed under Section 7A on 26th March, 2007 and the Petitioner was directed to pay a sum of Rs.3,79,840/as a difference between provident fund contribution of 10% which was deposited by the Petitioner and 12% which was being demanded from September, 1997 to November, 2006. There is no dispute that this amount has been paid and interest of Rs,1,81,519/has already been paid. 5. Thereafter, the proceeding under Section 14B of the Act were initiated by issuing summons on 5th June, 2009. The Petitioner filed a detailed Reply on 23rd June, 2009 and one of the aspect which was relied upon was the fact that the Petitioner was legally separated from Asia Transport Company and was, therefore, bona fide paying contribution at 10%. It was also pointed out that the damages which were worked out were fixed at 100% which was the maximum rate. This detailed reply is at Exhibit C-pages 25 and 26 of the Petition. 6. Thereafter, the Assistant Provident Fund Commissioner, Divisional Office, Bombay passed order dated 9th October, 2009 and damages of Rs. 3,55,467/are levied for the belated payment for the period September 1997 to November, 2006 and interest under Section 7Q was also levied. Prima facie, the reading of the said order does not indicates elaborate consideration of the defence of the Petitioner and gives no reasons as to why maximum damages were being levied. 7. 3,55,467/are levied for the belated payment for the period September 1997 to November, 2006 and interest under Section 7Q was also levied. Prima facie, the reading of the said order does not indicates elaborate consideration of the defence of the Petitioner and gives no reasons as to why maximum damages were being levied. 7. Aggrieved by this order, the Appeal was filed and the same has been dismissed. In para 7 of the impugned Judgment, the learned Presiding Officer has stated that since Appellant failed to file the document before the authority, the order was passed on the material available on record and, hence, the authority was not expected to pass a detailed order when no objection is raised. This is apparent error on the face of the record since the detailed written objections has been filed and the same was required to be considered. 8. The learned Advocate for the Petitioner has rightly relied upon the observations made in paragraphs 10 and 11 of the Judgment of learned Single Judge ( Coram: B. P. Dharmadhikari J.) in the case of Bhatkuli Taluka Cooperative Agricultural Sale and Purchase Society Ltd. Amravati v/s. Regional Provident Fund Commissioner, reported in 2007 (2) Mah. L. J.810 : 2007(3) of AllMR 249, which I quote below:- “Para10: Perusal of the various judgments mentioned above, therefore, clearly show that the Authority writing a order under section 14B is obliged to point out the actual damages and also the damages imposed as penalty. If the order is not indicating application of mind in relation to these heads, the order has been held to be a nonspeaking order. Not only this but the judgment also show that the Authority exercising the function to assess damages in paragraph No.32A read with section 14B is exercising quasijudicial function, and therefore, it has to take into account the difficulties placed before it by the employees. The contentions that the Authority is therefore obliged to levy damages at the maximum rate prescribed in paragraph No.32A does not appear to be correct. The discretion in the matter is very much available with the Authority and all judgments on which the parties have placed reliance unequivocally indicate this. Even the plain language of paragraph 32A shows that the word used therein is “may”. The discretion in the matter is very much available with the Authority and all judgments on which the parties have placed reliance unequivocally indicate this. Even the plain language of paragraph 32A shows that the word used therein is “may”. As already pointed out those provisions has been brought into force from 191991 and if the framers of scheme wanted to force the authority to recover damages at the maximum rate specified in the table, there was no need to use the word “may”. The word “shall” could have been very well used in it. In view of the judgments referred above and in view of the language of paragraph No.32A, I find that the argument of respondent in this respect cannot be sustained. It is also pointed out that paragraph No.32A cannot be interpreted to defeat scheme of section 14B as laid down by the Hon'ble Apex Court and as expounded by the learned Single Judge of this Court otherwise it would itself become vulnerable. Para11: In this background when the impugned order is perused, the impugned order nowhere speaks about such damages or its penal part as mentioned above. It is further apparent that the maximum rate stipulated in paragraph No.32A has been mechanically applied and from the arguments advanced, it appears that the respondent is under wrong impression that it has no discretion to levy damages at lesser rate than prescribed.” 9. In my opinion, the impugned order of the Assistant Provident Fund Commissioner does not stand the scrutiny of the test laid down in the aforesaid Judgment. 10. The other factor which has to be considered is that the Petitioner was paying 10% contribution and this not the case of willful default. All these factors will have to be considered by the Assistant Provident Fund Commissioner in the light of the law laid down by the learned Single Judge of this Court in view of the observations in paragraphs 10 and 11 of the Judgment referred herein above. 11. All these factors will have to be considered by the Assistant Provident Fund Commissioner in the light of the law laid down by the learned Single Judge of this Court in view of the observations in paragraphs 10 and 11 of the Judgment referred herein above. 11. Hence, I pass the following order: (i) The impugned Judgment and Order dated 11th July, 2011 passed by the learned Presiding Officer of EPFAT under the Appeal ATA No.774(9) of 2009 as also the impugned order dated 9th October, 2009 passed by the Assistant Provident Fund Commissioner, Divisional Officer, Bombay under Section 14B read with Section 7Q of the Act are quashed and set aside and the proceedings are remanded back to the Assistant Provident Fund Commissioner for denovo hearing. (ii) The Petitioner will appear before the Assistant Provident Fund Commissioner on 27th February, 2012 along with authenticated copy of this order and thereafter, the Assistant Provident Fund Commissioner shall pass a fresh order by giving appropriate reasons and calculation of the damages which may be levied. This exercise shall be completed on or before 31st March, 2012.