1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 4372 OF 2009 M/s. Reliable Services, Plot No. N-5, M-17, CIDCO, Aurangabad. ....Petitioner. Versus The Assistant Regional Provident Fund Commissioner, Cidco, Aurangabad, through : Standing Counsel of Union of India. ....Respondent. Shri. T.K. Prabhakaran, Advocate for petitioner. Shri. K.B. Choudhari, A.G.P. for respondent. CORAM : R.K. DESHPANDE, J. DATE : 28th June 2010. ORAL JUDGMENT : 1. This writ petition challenges the order dated 2.4.2009 passed by the Assistant Provident Fund Commissioner, S.R.O. Aurangabad in the proceedings under section 14-B of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as ‘the said Act’). By this order, an amount of Rs. 27,443/- has been determined towards the interest payable under section 7-Q of the said Act, whereas 2 an amount of Rs. 76,721/- has been determined towards the damages payable under section 14-B of the said Act. Thus, the total amount of interest and damages payable by the petitioner has been determined as Rs. 1,14,164/-. The amount of interest under section 7-Q and that of damages under section 14-B of the said Act has been determined, on the ground that the petitioner has failed to deposit the amount of provident fund from the date of allotment of code number i.e. 9th September 2000. 2. Shri. K.B. Choudhari, learned counsel appeared for the respondent – Department. The matter is heard at length and both the learned counsels agree that the same can be finally disposed of at this stage. Hence, Rule, made returnable forthwith. Shri. K.B. Choudhari, learned counsel for the respondent waives service of notice. 3. Shri. Prabhakaran, learned counsel appearing for the petitioner has urged that the petitioner had applied for allotment of code number on 24.1.1998 and had started remittance of the amount of provident fund as required by the provisions of the said Act. He submits that in spite of reminders, the matter was not finally concluded and the show cause notice under section 14-B of the said Act was issued on 27.10.2008, calling upon the petitioner as to why the amount of interest and damages should not be recovered from the petitioner. The petitioner submitted their reply on 17.11.2008, stating that it had applied for allotment of code on 24.1.1998, however, instead of deciding the matter, 3 notice is issued. According to him, the petitioner is not at fault and the amount was remitted periodically as required by the provisions of the said Act. According to him, it is the fault of the department and there was failure to allot the code number as was demanded by the petitioner and in view of this, the petitioner cannot be held liable for the interest and damages. He relies upon the Division Bench judgment of this Court reported in 1995 I CLR 655 in the case of Abhijat Samayadarshika Maharashtra Ltd. Vs. Union of India. He further relies upon the another unreported judgment of the Single Judge of this Court in Writ Petition No. 2198/2003 decided on 19th August 2003 in the case of M/s. Micro Age Instruments Pvt. Ltd., Vs. The Regional Provident Fund Commissioner, Nasik. 4. Shri. Choudhari, learned counsel for the respondent - Department, submits that in view of the communication dated 13.2.2009, placed on record and marked as “X” for identification, the circular dated 17.6.2004 regarding levy of damages for pre-discovery period has been withdrawn prospectively with effect from 16.2.2009. It is directed that the levy of damages should be processed as per the provisions contained in section 14-B read with para 32-A of the said Act. He further justifies the order passed by the authority which is impugned in this petition. 5. The respondent has filed an affidavit dated 3.8.2009. It is not 4 disputed that the petitioner applied for allotment of code and started remittance of amount with effect from 24.1.1998. It is also not in dispute that the decision for allotment of code number was not taken, but still the petitioner started depositing the amount without code number and the said amount was lying in suspension account. It is stated that the amount so deposited shall be taken into consideration while calculation of damages. It is further stated that there is no provision in the said Act for depositing the amount without code number and therefore, in view of the provisions of section 14-B of the said Act, the petitioner has to pay the amount of interest and damages for pre-discovery period. It is further stated that the request of the petitioner for waiver of the amount of damages for the pre-discovery period has been rejected in view of circular dated 13.2.2009. 6. In the background of the aforesaid rival stands of the parties, it is apparent that the petitioner had applied for code number on 24.1.1998, which fact is not disputed. The petitioner has been paying the amount pending allotment of code number and it is deposited in the suspension account. If the authorities have not decided the issue within stipulated period, then it is not permissible for them to recover the amount of interest and damages. The issue is no longer res-integra in view of the two judgments delivered by this Court cited supra. The stand taken by the petitioner has also not been taken in to consideration in the impugned order and arbitrarily the adjudication is made, making liable 5 the petitioner for payment of interest and damages. In view of this, the impugned order dated 2.4.2009 cannot be sustained. The same is, therefore, liable to be quashed and set aside. 7. In the result, the instant writ petition succeeds. The impugned order dated 2.4.2009 is quashed and set aside. Rule is made absolute in the aforesaid terms. No order as to costs. [ R.K. DESHPANDE, J. ] ssc/wp4372.09