1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR . LETTERS PATENT APPEAL NO.133 OF 2010. IN civil application no.428 of 2010. IN WRIT PETITION NO.3122 OF 2009(D). M/S G. N. NIKAM THRO. PROPRIETOR. VS THE ASSISTANT PROVIDENT FUND COMMISSIONER, NAGPUR. ______________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri A. P. Wachasunder, Advocate for the appellant. CORAM : A.H. JOSHI AND PRASANNA B. VARALE, JJ. DATE : 8th MARCH, 2010. 1. Heard learned Advocate Shri Wachasunder at length. Perused the record annexed to appeal and on the record of writ petition. 2. The respondent had done the assessment of amount of contribution dues recoverable from the employer by order dated 10-06-2008. An amount of Rs.8,41,924/- was found due for a period July 2004 to March 2007. 3. The appellant challenged the order of Assessment passed by the respondent before Employees Provident Fund 2 Appellate Tribunal. In that appeal, the appellant filed the application for waiver of deposit. The application for waiver was allowed by the authority by order dated 10-06-2008. 4. The order of grant of waiver of deposit was challenged by the respondent before the Single Judge of this Court. 5. It is seen that the appellant had appeared in the writ petition and filed affidavit-in- reply/submission and participated in the hearing through Advocate. The Single Judge of this Court had thus heard the writ petition. 6. The learned Single Judge accepted the contention of the writ petitioner that the application was allowed on 10-06-2008 behind the back of the writ petitioner, and without looking into merits of claim for waiver. Learned Single Judge, therefore, allowed the writ petition directing deposit of 75% of the amount. 7. The order impugned does not disclose, but it seems that learned Single Judge found a just solution 3 instead of delaying the proceedings further by remand etc., and hence directed prior deposit to the tune of 75% of the amount of dues which were demanded. 8. It appears that present appellant felt dissatisfied by the order passed by learned Single Judge and therefor filed a review application before learned Single Judge. The review application has been dismissed by learned Single Judge after hearing. 9. In this Letters Patent Appeal, orders passed by the learned Single Judge in review as well as in writ petition are challenged. 10. The points which are pressed in service in this appeal are summarized as below :- (a) Learned Single Judge ought to have issued Rule and thereafter only could have allowed the writ petition. Failure to hear and dispose of the writ petition without formally issuing Rule, gravely offends the process of justice being violative of Bombay High Court Appellate Side Rules. (b) The assessment of demand is done by the respondent without identification of the workers, and therefore, the assessment was not justified, and hence grant of prayer for waiver of deposit was 4 just and reasonable and does not warrant any inference. REASONS AND CONCLUSIONS. (a) As to need to issue Rule before final disposal of writ petition. 11. Appellant does not dispute that the appellant firm was present before learned Single Judge, represented through Advocate. Appellant admits that it had participated in the hearing. A grievance is not made that fair and reasonable opportunity of hearing was refused. Record shows that this Court had issued notice before admission on 03-08-2009. The present appellant had filed written submission/affidavit in reply which is on record at page 49 onwards, and thereby the writ petition was opposed. 12. Appellant's thrust and emphasis is upon the failure of learned Single Judge to issue 'Rule'. This Court cannot connive at the principle under issue of Rule. Issue of Rule means notice. The appellant had due and sufficient notice of writ petition. The hyper technical submission that 'Rule' was not issued has no merit and it does not deserve any cognizance. 5 Effort of appellant is to adhere to and fall back on letter of law and not the spirit and principle underlying it. (b) As to Merits of assessment and Justiciability of order for waiver of prior deposit. 13. On the request of the learned Advocate for the appellant, this Court has carefully perused the order of the Assessing Officer, and also of learned Single Judge. 14. The labour component (total wage bill) towards period under assessment was disclosed from record, and was noted by the Assessing Officer. This amount is Rs.32,87,486/-, correctness of this figure is not disputed by appellant. The dispute which is raised by appellant is that each worker who was to be the beneficiary of the Provident Scheme should have been identified before assessment of amount of contribution due. It is not argued that the foundation of this submission in any rule or Law or precedent, nor it is shown or cited. 15. In para 11 of impugned order of assessing officer, he has observed as follows:- 6 “12. From the records of the case I find that in this case 29 No. of employees have been identified, so as per the orders of Hon'ble High Court, assessment can be done in relation to them........” [Quoted from page 47 of appeal paper book] These findings by assessing officer too are not disputed on the ground of being factually erroneous. It is also seen that the wage component is based on chartered account's certificate, which was furnished by appellant. 16. On the ground of above referred factual aspect which is not challenged by the appellant, the contention that unless the workers are identified, no demands can be raised is a submission which is seen to be totally untenable, atleast as a ground for waiver of deposite. 17. Any party claiming waiver of prior deposit has to show : (1) That the order under appeal is patently illegal or without jurisdiction. (2) No liability whatsoever is attracted. (3) Even if liability is attracted, on facts, the appellant has no capacity or resource and liquidity of paying the dues so claimed. 18. On the last date of hearing, the learned 7 Advocate for the appellant had agreed to place on record some evidence from which he would demonstrate incapacity of the appellant to make prior deposit, and shall urge for waiver based on such material. The learned Advocate for the appellant has today tendered an affidavit, which we have perused. 19. The affidavit tendered today does not disclose an iota of statement or evidence in support to demonstrate financial capacity of the appellant and incapacity if it be so. 20. The effort of the appellant is not to be candid and honest before the Court and to bring on record correct facts, but to bring “some vague assertions” which are in noway relevant for seeking an order of waiver of prior deposit. The effort of the appellant of giving irrelevant and vague information is not fair. The appellant is gaming “hide and seek” before the writ Court and before this Court hearing appeal against an order passed in a writ petition. The appellant is forgetting a petitioner's commitment to Court of being utmost truthful and fair before the Court. 21. The appellant has thus utterly failed to show merit in challenge and grounds for waiver or his 8 incapacity to make prior deposit. 22. The appellant has failed to show either of the the essential ingredients indicated in paragraph No.17 supra initially in the writ petition, then in the appeal and lastly in the affidavit filed today. 23. In these premises, the appeal has no merit and is dismissed with costs. Judge Judge //mule//