K. Vinod Chandran, J.

1. Essentially, these appeals raise a question of law as to the interpretation of Section 14B of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act) read with Paragraph 32A of the Employees Provident Fund Scheme, 1952 (hereinafter referred to as the 'Scheme'). Whether in imposing penalty under Section 14B of the Act, the adjudicating officer is fettered; in so far as, no discretion is conferred on the officer to waive or reduce the penalty since the rates are clearly determined under the sliding table in paragraph 32A of the Scheme? If not; in exercising such discretion what are the factors that ought to be considered by the adjudicating officer? These would be the questions we are called upon to answer in the above appeals.

2. The brief facts necessary are that the respondent Company having been prompt in payment of contribution as provided under the Act and Scheme; prior to 1995 and subsequent to the year 2002, defaulted the same in the intervening period. According to them the default was due to an interim order of stay between 1995 to 1997 and thereafter by reason of severe financial crisis in the plantation industry. The crisis that pervaded the plantation industry; is said to have threatened the very survival of the industry, which was a direct consequence of economic reforms permitting import of goods, creating a surplus of produce within the Country. The labour unrest often leading to militancy and open loot of the produce as also sporadic market conditions brought the plantations to a standstill and there was in fact delay in payment of wages as such. These were the factors that were put across to the adjudicating authority in mitigation; pressing the claim for total waiver of penalty or at least imposition of reduced penalty. The said contentions being rejected; respondent Company was before the Tribunal constituted under the Act.

3. The Tribunal remanded the matter directing consideration of the factors put forth by the respondent Company i.e., specifically the claim of financial constraints. The adjudicating officer purportedly relying on Supreme Court decisions refused to consider the financial difficulties projected by the respondent company and in effect reiterated the rejection of the claims put forth by the Company. Before dealing with the propriety of such conduct by the adjudicating officers who are subject to the hierarchy as established by law and constituted by statute; we first look at the question of law projected before us.

4. We have heard the learned Senior counsel Sri. S. Gopakumaran Nair for the appellant Organization and the learned Senior Counsel Sri E.K Nandakumar for the respondent Company. Sri. S. Gopakumaran Nair would seek reversal of the judgment of the learned Single Judge on the ground that it is an established proposition going by the various decisions of the Hon'ble Supreme Court that financial constraints cannot be taken note of as a mitigating circumstance to waive or reduce the penalty mandated under Section 14B of the Act. The contention of the learned Senior Counsel is that the findings of the learned Single Judge is misconceived in so far as the amendment relied on in the impugned judgment and the introduction of a sliding scale under Section 32A of the Scheme took away the discretion conferred on the adjudicating officer before the amendment. The binding precedents of the Supreme Court, on an interpretation of pre-amended Section 14 B itself found that financial constraints is not a factor that could be considered in exercising discretion to waive or reduce the penalty stipulated in the Act and the Scheme. It is also argued that the proviso added on amendment of Section 14B makes it abundantly clear that any reduction or waiver is the exclusive premise of the Central Board and that too confined to a sick industrial company which is sanctioned a rehabilitation scheme by the Statutory Board. The l