JUDGMENT

1. The present Writ Petition is filed aggrieved by the orders dtd. 13/7/2022 of the 3rd respondent (i) levying penal damages under Sec. 14 (B) and (ii) levying penal interest under Sec. 7 (Q) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952, (for short 'the Act') on the petitioner, an establishment covered under the provisions of the said Act.

2. Mr.M.V.K.Murthy, learned counsel representing the counsel for the petitioner made detailed submissions with reference to the provisions of the Act. He submits that the determination of penal damages and levy of interest thereon was not preceded by appropriate show cause notices, therefore, the impugned orders are not sustainable in law. Referring to the summons dtd. 6/1/2022 (Ex.P10) issued to the petitioner, learned counsel submits that it cannot be treated as a show cause notice, but an intimation to produce the information/ material. He also submits that the summons were issued by one Officer, whereas the impugned proceedings / orders were passed by another Officer. Learned counsel submits that Sec. 7A of the Act empowers the competent authority to determine the contributions / amount of monies due from the employer / petitioner and only after determination of the same, orders either under Sec. 7Q or Sec. 14 B of the Act, can be passed. He submits that as Sec. 7A(3) of the Act provides for a reasonable opportunity before passing an order, issuance of show cause notice is mandatory and in the present case no such show cause notice was issued nor an order determining the amount due from the petitioner was passed. He submits that in the absence of an order ascertaining the amounts due from the petitioner in terms of Sec. 7A of the Act, initiation of further proceedings under Sec. 14B or Sec. 7Q of the Act are not tenable in law.

3. Referring to the Circular instructions of the E.P.F. Organization dtd. 15/5/2020 (Ex.P3), learned counsel further submits that the said Circular was issued taking into consideration the prevailing situation at that relevant point of time i.e., imposition of lockdown due to operational and economic reasons. He submits that during the said period the petitioner could not deposit the contributions, without any fault on its part, in view of the Covid pandemic and despite the said circular instructions, the 3rd respondent had calculated the damages during the relevant period of Covid and the determination of damages, without taking into consideration of the relevant factors, amounts to non-application of mind and is not sustainable in law. He submits that no reasons are stated in the impugned order as to why the said Circular instructions are not binding on the 3rd respondent.

4. Drawing the attention of the summons dtd. 6/1/2022, the learned counsel contends that it is a composite summon and as is evident from the same, the damages as well as the interest are sought to be calculated simultaneously. While stating that simply because there was some delay in remittance of contributions, the same cannot be treated as default and imposition of damages thereof is not just, he submits that the collection of damages and levy of interest for the period of delay in remittance of contributions amounts to double jeopardy. Referring to the impugned order under Sec. 14 B of the Act, the learned counsel submits that even according to the 3rd respondent remittances were made belatedly for some months and contends that there are no arrears even as per the impugned proceedings and in such an event, there shall be no charge of damages since the levy of damages is in respect of amount of arrears that may subsist as on the date of initiation of proceedings under Sec. 14B of the Act and where there were no arrears, the levy of damages much less interest thereon would not arise at all.

5. Learned counsel submits that due to prohibitory orders issued pursuant to the impugned orders the petitioner could not comply with the interim orders dtd. 7/12/2022 an