JUDGMENT

(Delivered by P.T.Asha,J.)

This intra court appeal is filed challenging the order of the learned single Judge dismissing W.P.No.16838 of 2010 and a batch of Writ petitions.

2. It is necessary to briefly allude to the facts which has culminated in the filing of the above Writ Appeal. The Appellant had filed the above referred Writ petition seeking to quash the order, dated 10.07.2009 in ATA 740 (13) 2003 and the consequential recovery Order of the 2nd Respondent, dated 07.04.2010 in PRO.No.

TN/CBE/RO/RECOVERY/47/2010.

3. The case of the Appellant was that in the year 1995, the Mill has closed down and their Workmen had moved out of the services of the Appellant. Nearly, 8 years later, the 2nd Respondent issued a notice, dated 05.03.2003 to the petitioner claiming damages under Section 14 B of the Employees Provident Fund Act, hereinafter called the Act in respect of the belated payments of the contributions for the period December 1982 to February 1993 to the tune of a sum of Rs.26,56,188/-. No reasons were given for the demand. There was also no determination as contemplated under Section 7 A of the Act. On 30.06.2003, the petitioner had sent a reply giving the reasons for the delay which were as follows:

a. Overall crisis in the textile industry;

b. Lack of financial resources;

c. The Workmen have already received the dues and the Mill had stopped functioning long ago;

d. There was no wilful default on the part of the Appellant.

The 2nd Respondent issued a notice dated 25.07.2003 asking the Appellant to be present for enquiry under Section 7 A of the Act at 11 am at Coimbatore on 07.08.2003. The Official of the Appellant company had made arrangements to travel. However, just before the date of travel, he fell sick and therefore, he had sent a telegram seeking postponement of the enquiry. However, disregarding the genuine request, the 2nd Respondent, had proceeded to pass orders on 12.08.2003 and held the petitioner liable to pay damages to the tune of Rs.26,56,188/-.

4. On 28.08.2003, the petitioner had filed an application to set aside this exparte order as per the terms of Section 7 A (4) of the Act. It is the contention of the Appellant that the said petition was rejected by the 2nd Respondent stating that for damages under Section 14 B of the Act, there was no scope for reopening the enquiry.

5. The Appellant therefore filed ATA 740 (13) 2003 before the 1st Respondent. By an order dated 10.07.2009, the 1st Respondent had reversed the order of the 2nd Respondent and had restricted the damages to the tune of 10 % per annum of the arrears of contribution. The Tribunal had based its decision on the Judgment of the Orissa High Court reported in 1998 (2) LLJ 1044 in passing such orders.

6. The Appellant who was under the genuine impression that the Tribunal had reduced the arrears to 10 % of the demand made by the 2nd Respondent had accordingly remitted the equivalent amount under cover of their letter dated 29.10.2009. However, on 10.02.2010, the petitioner had received a letter from the 2nd Respondent asking them to pay the correct amount. This was immediately followed by the demand dated 07.04.2010 of the 2nd Respondent in his capacity as Recovery Officer directing the Appellant to remit a sum of Rs.9,47,871/-. The Appellant was advised that the review of the Tribunal's order cannot be made at this juncture and therefore the petitioner had come forward with the Writ Petition which is the subject matter of challenge in this appeal.

7. The 2nd Respondent had filed a counter in the above referred Writ Petition interalia contending that the Appellant had not given any reasons whatsoever for their failure to attend the hearing on 07.08.2003. Further, as against the order of the 2nd Respondent dated 12.08.2003, the Appellant had filed W.P.No.1771 of 2004. The writ petition was filed since the appeal could not be taken up before the Tribunal for want of a Presiding Officer. This Court by an order dated 04.04.2004, was pleased to direc