JUDGMENT : 1. It is necessary that certain facts have to be placed on record in order to understand the real controversy between the parties. The respondent No. 2 before us is an establishment admittedly covered under the Employees' Provident Fund and Miscellaneous. Provisions Act, 1952, hereinafter referred to as the Act of 1952. It is an admitted fact that the dispute between the parties was with regard to the assessment of damages under section 14B of the Act of 1952 in respect of E.P.F. Account Nos. 1, 2, 10, 21 and 22. It is also not in dispute that several amounts were due in respect of above said account numbers. Therefore, the Commissioner (Damage), Regional Office, Kolkata imposed costs by rectifying the damages in terms of amended enactment as per order dated 4.9.2014 which came to Rs. 2,34,42,377/-. This became subject matter of challenge before the Employees' Provident Fund Appellate Tribunal and the impugned order before the learned Judge is dated 20.11.2014. 2. The first authority, Commissioner calculated damages at the rate of 25% on the amounts due in respect of above accounts for different periods so far as respondent No. 2's establishment is concerned. Later, the Tribunal by above order dated 20.11.2014 reduced the damages opining only a nominal damage has to be recovered at the rate of 10% of the actual amount of damages levied under the impugned order. Aggrieved by the same, appellant has approached the learned Single Judge. Learned Single by detailed order rejected the claim of the appellant by order dated 30.11.2015 and the same is the subject matter of challenge before us in the present appeal. 3. So far as the technical objection raised by the respondents that the amounts paid as directed by the Tribunal was accepted by the appellant without any resistance or protest, therefore, they have no right to appeal, we do not agree with the said contention in the light of the very purpose or intention with which the above said Act of 1952 has come into existence. We have to see whether the exercise of power under section 14B of the Act and para 32A of the Scheme of 1952 was properly done or not in the present case. 4. According to the appellant, since the dispute pertains to assessment of civil damages, discussion with regard to mens rea is alien to the said Act. We have to see whether the exercise of power under section 14B of the Act and para 32A of the Scheme of 1952 was properly done or not in the present case. 4. According to the appellant, since the dispute pertains to assessment of civil damages, discussion with regard to mens rea is alien to the said Act. Therefore, lack of mens rea cannot be a ground to reduce the damages. According to him, the judgment of the Hon'ble Supreme Court relied upon by the Tribunal in ESIC v. HMT & Others, reported in (2008) 3 SCC 35 has to be considered as per incuriam in the light of the judgment of the Apex Court in the case of The Chairman, SEBI v. Shiram Mutual Fund & Anr. dated 23.5.2006 (in Case No. Appeal (civil) 9523-9524 of 2003) which discussed with regard to the word penalty and the said penalty being a civil liability. Therefore, by application of statute i.e. section 14B and para 32A of the scheme would clearly indicate according to the appellant's Counsel that the Tribunal and the learned Single Judge totally ignored the very basis how damages have to be assessed. According to him, for reduction of damages mens rea is not the only criterion and several other factors cannot come in the way of exercise of discretion to award damages. 5. In response to the stand of the appellant, learned Counsel for the respondent Establishment Mr. Arunava Ghosh submits that the percentage of damages indicated at para 32A of the Scheme is not rigid. Therefore, the Tribunal had discretion to reduce the said damages and the exercise of discretion to reduce or waive the imposition of damages cannot be restricted only to the Commissioner and the higher authorities who could modify or set aside the order of the Commissioner also can exercise the said discretion. Therefore, the Tribunal had discretion to reduce the said damages and the exercise of discretion to reduce or waive the imposition of damages cannot be restricted only to the Commissioner and the higher authorities who could modify or set aside the order of the Commissioner also can exercise the said discretion. Section 14B of the Act reads as under; "14 B. Power to recover damages--Where an employer makes default in the payment of any contribution to the Fund the (pension) Fund or the Insurance Fund or in the transfer of accumulations required to be transferred by him under sub-section (2) of section 15 (or sub-section (5) of section 17) or in the payment of any charges payable under any other provision 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 Central Government, by notification in the Official Gazette, ion this behalf) may recover (from the 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 a scheme for rehabilitation has been sanctioned by the Board for Industrial and Financial Reconstruction established under section 4 of the Sick Industrial Companies (special provisions) Act, 1985 (1 of 1986), subject to such terms and conditions as may be specified in the scheme." 6. The rate of damages is indicated at para 32A of the E.P.F. Scheme, which reads as under; "32A. Recovery of damages for default in payment of any contribution. The rate of damages is indicated at para 32A of the E.P.F. Scheme, which reads as under; "32A. Recovery of damages for default in payment of any contribution. (1) where an employer makes default in the payment of contribution to the Fund, or in the transfers of accumulations required to be transferred by him under Sub-section (2) of section 15 or sub-section 17 or in the payment of any charges payable under any other provisions of the act or scheme or under any of the conditions specified under section 17 of the Act Central Provident Fund Commissioner or such other officer as may be authorised by the Central government, by notification in the Official Gazette, in which behalf may recover from the employer by way of penalty, damages at the given below: Period of default: Rate of damages (% of arrears per annum) (a) Less than two months 05 (b) Two months and above 10 But less than four months (c) Four months and above 15 But less than six months (d) Six months and above 25" 7. Reading of rate of damages, it refers to percentage of damages per annum on the amounts due under various provisions of the enactment i.e. above mentioned accounts of the establishment. Apparently, the statute clearly indicates that damages have to be imposed on the amount of arrears within the ceiling limit (percentage of damages) as indicated in the statute and the scheme. Definitely, nature of discretion or rather power to impose damages under section 14B of the Act of 1952 cannot be considered as a penalty as in the case of criminal offence but it has to be treated as quasi-judicial authority. Reading of section 14 clearly indicates how the contravention of the provisions of the Act would make the employer even face criminal prosecution which prescribes imprisonment depending upon the contravention with reference to the facts in each case. 8. Now, the dispute is with regard to the quantum of damages being assessed as nominal damages by the Tribunal. Exercise of discretion must be with reference to the provisions of the statute as well as the scheme. It is well settled that the scale or the percentage of damages indicated at para 32A of the Scheme is not rigid and fixed. Otherwise, there would not have been several decisions where the circumstances persuaded the Courts to reduce the damages. Exercise of discretion must be with reference to the provisions of the statute as well as the scheme. It is well settled that the scale or the percentage of damages indicated at para 32A of the Scheme is not rigid and fixed. Otherwise, there would not have been several decisions where the circumstances persuaded the Courts to reduce the damages. Even the statute i.e. section 14B clearly indicate that it is the imposition of damages, which cannot be waived but fixing the percentage of damages in terms of para 32A of the Scheme is flexible. The decision referred to by the Tribunal i.e. (2008) 3 SCC 35 (Supra), clearly indicates how a judicial discretion has to be exercised which was conferred by a statutory provision. The very reading of section 14B in terms of the 2008 decision, clearly indicates that the penal provision of imposing damages that has to be exercised, is discretionary in nature and not a rigid one. 9. Having regard to the discussions made in the case of 2008, we are of the opinion that the argument of the learned Counsel for the appellant that it has to be considered as per incuriam cannot be accepted since the consideration in the earlier judgment of 2006 in the case of Shiram Mutual Fund and the line of discussion in 2008 judgment are totally different. Several Courts have said that mere delay in payment of contribution does not ipso facto lead to levy of damages. The discretion of levying damages has to be exercised in a judicious manner. If there is no authority to levy damages without giving valid reasons, it would automatically mean that the imposition of damages is also not rigid. 10. In that view of the matter, we are of the opinion that the Tribunal was justified in opining that imposition of damages under section 14B of the Act of 1952 could be reduced by exercising discretionary authority. Now, we have to see whether the exercise of discretion by the Tribunal is in accordance with the intention and purpose of the enactment. It is well settled that imposition of damages under section 14B in terms of para 32A of the Scheme is beneficial to the employees as a group. The said amount can be used by the Commission for the purpose of attending to the needs of the employees. It is well settled that imposition of damages under section 14B in terms of para 32A of the Scheme is beneficial to the employees as a group. The said amount can be used by the Commission for the purpose of attending to the needs of the employees. It is also by way of deterrent provision to regulate the payment of contribution under various schemes regularly paid by the employer. In that view of the matter definitely there cannot be total waiver of damages. Depending upon the facts and circumstances of each ease, one has to use the discretion to be exercised under section 14B, keeping in mind the grade or the scale indicated under para 32A of the Scheme. 11. In the present case, Tribunal has rightly come to a conclusion that there has to be reduction of damages but the way the Tribunal has reduced the damages is incorrect and cannot be in terms of the statute or the scheme. The Tribunal says 10% of the actual damages levied under the impugned order dated 4.9.2014. Whenever, damages have to be assessed, it has to be on the amount of money due from the employer. Para-32A of the Scheme clearly indicates that the rate of percentage of damages is on the amounts due. Therefore, the Tribunal was not justified in adopting its own method in imposing damages opining that 10% of the damages imposed would be sufficient in the circumstances of the case. Though we agree with the reduction of damages from 25% but it cannot be 10% of the damages imposed by the Commissioner. 12. Accordingly, the appeal is allowed in part and the appellant is at liberty to assess the damages as indicated by us i.e. 10% of the actual amounts paid with delay under various accounts of the establishment. If any amounts towards damages is already paid, the same has to be deducted from the amount of damages now to be assessed. In view of the above, the application, being CAN 1887 of 2016, is also disposed of.