R. Sadasivam, J.
1. Petition by Popular Transport (Registered) for the issue of a writ of mandamus restraining the respondents from collecting the amount of Rs. 9,294.45 made up of Rs. 4,817.45 representing the contributions for the period May, 1959, to July, 1961 and Rs. 4,477 representing damages. During the arguments learned Counsel for the petitioner confined this petition to the payment of Rs. 4,477 for damages alone and did not question the recovery of Rs. 4,817.45 representing contributions.
2. Learned Advocate for the petitioner urged two contentions before me. The first contention is that the levy of damages is illegal as he was given no opportunity to make representations against the same and he relied on the decisions in Messrs. Madras Bangalore Transport Co. v. Commissioner, Regional Provident Funds, Madras : (1969)2MLJ156 , in support of his contention. In the former case, Ramakrishnan, J., has elaborately discussed the nature of the levy of damages by the Administrative authority and found that it is by way of penalty and that the imposition of penalty without the party being given an opportunity is opposed to natural justice. It is true the State Government has purported to give instructions to the Administrative authority by a Government Order as to how the penalty of 25 per cent. of the contributions should be imposed in a varying scale depending on the period of default and the number of defaults. But the petitioner could show that there was no delay or not so much delay as stated by the appropriate authority or that the number of defaults committed by him is not the number assumed by the appropriate authority or put forward such other defences as are open to him. The first objection taken by the learned Advocate for the petitioner has to be upheld.
3. It is really unnecessary to go into the second contention urged by the learned Advocate for the petitioner, though it appears to be prima facie sound. Under Section 19 of the Employees' Provident Funds Act, 1952, the appropriate Government may, instead of exercising the powers under the Act by itself, delegate the powers to the persons mentioned in that section. While the Central Government may delegate the powers to its own Subordinates or the Subordinates of the State Government, the State Government can delegate only to authorities to the State Government. It is not disputed that the appropriate Government in this case as defined in Section 2 (a) of the Employees Provident Funds Act, 1952, is the State Government. Having regard to Section 5 (d) of the Act, there can be no doubt that the Regional Provident Fund Commissioner of Madras, is a subordinate to the Central Government. The State Government should either exercise the functions under the Act by itself or delegate the powers to its own subordinates and not to the Regional Provident Fund Commissioner, who is a subordinate to the Central Government, in the absence of any statutory provision authorising it to do so.
4. For the foregoing reasons a writ of mandamus is issued restraining the respondents from levying the damages against the petitioner. It is, however, open to the respondents to take such appropriate legal proceedings under the Act as are open to them. There will be no order as to costs.