1 wp3517.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.3517/2015
1. The Central Board of Trustees,
Employees Provident Fund Organization,
having office at Bhavishya Nidhi Bhawan,
Bhikaji Cama Place, New Delhi - 110 066,
through the Regional Provident Fund
Commissioner, Employees Provident Fund
Organization, Sub-Regional Office, Akola.
2. The Assistant Provident Fund Commissioner,
Employees Provident Fund Organization,
Sub-Regional Office, 15-B, Raghuraj Arcade,
Civil Lines, Akola. ..Petitioners.
..Vs..
1. M/s. Ratanlal Chhotelal Agrawal Gining and
Pressing Factory, situated at Achalpur Camp
(Paratwada), Distt. Amravati.
2. Employees Provident Fund Appellate Tribunal,
New Delhi, Laxmi Nagar, New Delhi,
through its Presiding Officer. ..Respondents.
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Shri H.N. Verma, Advocate for the petitioners.
Shri V.A. Bramhe, Advocate for the respondent No.1.
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CORAM : Z.A. HAQ, J.
DATE : 8.11.2017. ORAL JUDGMENT
1. Heard Shri H.N. Verma, Advocate for the petitioners and Shri V.A. Bramhe, Advocate for respondent No.1. None for respondent No.2 though ::: Uploaded on - 18/11/2017 ::: Downloaded on - 19/11/2017 00:14:03 ::: 2 wp3517.15 served.
2. Rule. Rule made returnable forthwith.
3. The orders under Section 14-B and 7-Q of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for short "Act of 1952"), passed by the Assistant Provident Fund Commissioner were challenged by the respondent No.1 in appeal under Section 7-I of the Act of 1952 before the Appellate Tribunal. The appeal filed by the respondent No.1 is allowed and both the orders are set aside.
4. The order passed under Section 7-Q of the Act of 1952 determining the amount of interest payable by the respondent No.1 is set aside overlooking the fact that the appeal under Section 7-I of the Act of 1952 does not lie against the order passed under Section 7-Q of the Act of 1952. Therefore, the order passed by the Appellate Tribunal to the extent the order passed by the Assistant Provident Fund Commissioner under Section 7-Q of the Act of 1952 is set aside, is without jurisdiction.
5. The order passed by the Assistant Provident Fund Commissioner under Section 14-B of the Act of 1952 is set aside on the ground that the authority has not considered whether the delay in depositing the provident ::: Uploaded on - 18/11/2017 ::: Downloaded on - 19/11/2017 00:14:03 ::: 3 wp3517.15 fund contribution is wilful and deliberate. The Appellate Tribunal has rightly set aside the order passed by the Assistant Provident Fund Commissioner under Section 14-B of the Act of 1952 on the above ground, however, the Appellate Tribunal has committed an error in closing the case and not remanding it to the Assistant Provident Fund Commissioner for considering whether the delay in depositing the provident fund contribution is wilful or deliberate. There is nothing in the order passed by the Appellate Tribunal to show that the Appellate Tribunal has itself considered whether the delay in depositing the provident fund contribution is wilful or deliberate.
6. In the above facts, the following order is passed:
(i) The impugned order passed by the Appellate Tribunal is set aside.
(ii) The matter is remitted to the Assistant Provident Fund Commissioner for considering the issue whether the delay in depositing provident fund contribution by the respondent No.1 is wilful and / or deliberate.
The Assistant Provident Fund Commissioner shall decide the matter after hearing the respondent No.1.
(iii) The learned Advocate for the respondent No.1 has submitted that the amount of interest determined by the authority by the order passed under Section 7-Q of the Act of 1952 is also not proper. As the matter is being remanded to the Assistant Provident Fund Commissioner, it is directed that he ::: Uploaded on - 18/11/2017 ::: Downloaded on - 19/11/2017 00:14:03 ::: 4 wp3517.15 shall hear the respondent No.1 also on the point of liability of the respondent No.1 to pay interest as per Section 7-Q of the Act of 1952 and take fresh decision in the matter. Consequently, the orders passed by the Assistant Provident Fund Commissioner on 7th May, 2012 under Section 14-B of the Act of 1952 and under Section 7-Q of the Act of 1952 are also set aside.
(iv) The respondent No.1 shall appear before the Assistant Provident Fund Commissioner, Akola on 10th January, 2018 at 11 a.m. and abide by further instructions / orders in the matter.
(v) The Assistant Provident Fund Commissioner shall dispose the matter till 15th March, 2018.
Rule made absolute in the above terms.
In the circumstances, the parties to bear their own costs.
JUDGE Tambaskar.
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