N.V. Anjaria, J.

1. The petitioner is the Regional Provident Fund Commissioner. He, by filing the present petition, has called in question judgment and order of the Employees' Provident Fund Appellate Tribunal. Before the Appellate Tribunal, the order impugned was the order passed by the petitioner under Sec. 14B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. When the petition came up for hearing, learned Advocate for the respondent objected to the very maintainability of the petition, raising the same as a preliminary point. Whether the Regional Provident Fund Commissioner has got a locus standi to challenge the order of the Appellate Tribunal which entertained and interfered with his order. The parties were heard in extenso on the said preliminary issue. The said point is dealt with at the outset.

2. Addressing the question may be prefaced by portraying the basic facts. The Competent Authority under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter mentioned as 'the E.P.F. Act' for sake of brevity) issued notice to respondent No. 2-company holding that it was covered under the provisions of the E.P.F. Act and further holding it liable to pay the amount of pension fund/deposit link insurance fund and administrative charges for the period from November, 2002 to February, 2010. The Department was of the view that the belated payment attracted damages under Sec. 14B of the Act. The establishment was asked by notice dated 20th July, 2011 to pay Rs. 1,26,79,829/- towards damages under Sec. 14B and Rs. 78,41,711/- towards interest under Sec. 7Q of the Act.

2.1. It appears that subsequent to the notice issued as above, representatives of the establishment appeared before the Authority at one stage and stated that the establishment had paid Rs. 54,21,091/- as per Sec. 7Q of the Act. It appears that the establishment failed to make the payment within the time given and failed to comply with the aforesaid notice. As a result, the Regional Provident Fund Commissioner passed order dated 16th February, 2012 directing the establishment to pay the amount of damages and interest.

2.2. The aforementioned order passed under Sec. 14B was carried in appeal before the Employees' Provident Fund Appellate Tribunal. For the reasons recorded in the order, the Appellate Tribunal restricted the damages upto 5% of the actual amount of damages, that is Rs. 1,26,79,829/- and the order of the petitioner-Regional Provident Fund Commissioner came to be accordingly modified. Before the Appellate Tribunal it was the case of the establishment that the P.F. dues could not be remitted in time for the reasons of financial constraints and adverse business conditions. While interfering with the order of the Regional Provident Fund Commissioner, the Appellate Tribunal took view that delayed payment of contribution would not ipso facto invite damages, if the employer had sufficient cause. It held that the observations made by the respondent-Regional Provident Fund Commissioner proceeded on erroneous presumption that the employer was answerable for damages irrespective of the fact that he had suffered with heavy losses.

2.3. The Appellate Tribunal recorded the contention of the appellant company-respondent No. 2 herein that it was constrained to file Reference before the Board for Industrial and Financial Reconstruction (B.I.F.R.) under the provisions of the Sick Industrial Companies Act which was registered as B.I.F.R. Case No. 44 of 1994. The case of the establishment inter alia was that during the year 2000 to 2004, operations of the company faced rough weather and suffered set back due to natural calamities like floods, earthquake and also because of industrial recession; the company was declared sick in 1994 having been referred to B.I.F.R., which sanctioned a rehabilitation scheme by order dated 6-4-1999 leading to change in the management. It brought to notice the order of sanction by B.I.F.R. to the