A.M. Shaffique, J.

The petitioner having failed to pay the contribution under the Employees Provident Funds and Miscellaneous Provisions Act, 1952 in time and the various other contributions payable under the pension fund and deposit link insurance fund contributions for the period between 4/95 and 12/2000, the Regional Provident Fund Commissioner by Ext.P1 order dated 22.7.2002 assessed damages under Section 14 B of the Act for an amount of Rs. 11,17,495/- and petitioner was called upon to pay the said amount.

2. It is the contention of the petitioner that it was only on account of the serious financial crisis that was faced by the petitioner that the contributions could not be paid in time. The petitioner preferred an appeal before the Employees Provident Fund Appellate Tribunal as A.T.A. No. 675(5) 2002. The appellate authority, however, did not interfere with the order passed, having come to the conclusion that the financial loss suffered by the petitioner is not a ground for interfering with the damages.

3. Petitioner, therefore, challenges Exts.P1 and P4 orders.

4. Learned counsel for the petitioner also relies upon Division Bench judgments of this Court ESI Corporation v. Premanandan [(2007(2) KLT 666], Employees State Insurance Corporation v. HMT Limited and another [(2008) 3 SCC 35] and another judgment of the learned Single Judge in Harrisons Malayalam Limited (M/s.) v. Regional Provident Commissioner and Others [(2012 (1) KHC 243].

5. Relying upon the above judgments and the statutory provisions contained under Section 14B, it is contended that unless the party obliged to pay the contribution deliberately or in defiance of law or was guilty of contumacious or dishonest conduct, or acted in conscious disregard of its obligation, there cannot be any levy of damages.

6. On the other hand, learned counsel appearing for the respondent-Department, relying upon the counter affidavit filed inter alia contends that since the appellate authority had not exercised the jurisdiction to waive any portion of the damages, the judicial review is not possible in order to set aside the said view taken by the appellate authority. Learned counsel also relied upon the judgment in Indian Telephone Industries Limited v. Asst. P.F. Commissioner and Others [2006(3) KLJ 698] to indicate that the financial problem suffered by the assessee is not a sufficient ground for waiving damages for the delay in depositing various contributions. It is further contended that damages had been computed in terms of para 32A of the Scheme and there is no justification to waive any such amount.

7. Even though the statutory authority had imposed damages as per the rate prescribed under the Scheme, the appellate authority ought to consider whether there was deliberate attempt on the part of the employer to avoid payment of contribution within the specified time. The question therefore to be considered is whether such a jurisdiction should be exercised in the present case.

8. An appeal was filed as Ext.P5 indicating the reasons for not paying the contribution in time stating that the factory has not been functioning and that all the particulars relating to the non-payment of contribution was specifically mentioned in the memorandum of appeal. The appellate authority, seems to have made only a cursory glance at the memorandum of appeal and the grounds raised thereunder and had only considered the matter as if financial loss was the only ground. In fact, this is an instance where the petitioner was not in a position to function the company and even the salary could not be paid. It is stated that during the period 1995-2000, the industry suffered an unprecedented set back mainly due to the bad industrial atmosphere throughout Kerala State which restricted the flow-back of money from purchasers of the product and also Kerala Water Authority who has really consuming 95% of the products manufactured by it. It is also stated that the influx of PVC pipes in the market