1 W.P.No.134.10 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 134 OF 2010 M/s.Santogen Exports Ltd. ... Petitioner v/s The Regional Provident Fund Commissioner & anr. ... Respondents Mrs.Lata Desai i/by Dr.Pallavi Divekar for the petitioner. Mr.Deepak Pai i/by Suresh Kumar for respondents. CORAM: SMT.NISHITA MHATRE, J. DATED: 26TH JULY, 2010 P.C.: 1. The petition has been preferred against the order passed on 13.4.2009 under Section 7-A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (in short, “the E.P.F. Act”). The order dated 18.9.2009 passed under Section 7B has also been challenged. Besides this, the order of the Appellate Tribunal, established under the aforesaid Act, passed on 18.11.2009 has been impugned. As the amounts quantified in the impugned orders were not 2 W.P.No.134.10 paid, an arrest warrant was issued against one of the Directors of the petitioner Company. That warrant of arrest has also been impugned in the present petition. 2. When this matter came up for admission on 28.1.2010, this Court had stayed the arrest warrant on condition that certain amounts were deposited in this Court by the specified dates. Accordingly these amounts have been deposited and the arrest warrant has been stayed. 3. The order passed under Section 7A of the E.P.F. Act quantifies the dues payable by the petitioner as Rs. 38,10,409/-. This amount is due and payable for the period from December, 2003 to November, 2005. Admittedly, the amount has already been paid by the petitioner Company to the Provident Fund authorities under the orders of this Court. However, according to Mr.Suresh Kumar, the learned advocate appearing for the respondents, the petitioner will be liable to pay interest on the late remittances under Section 7Q of the E.P.F. Act besides being liable to pay damages under Section 14B of the Act. 4. After the order under Section 7A was passed by the Provident Fund authorities on 19.6.2007, an application was filed under Section 7B by the petitioners challenging that 3 W.P.No.134.10 order in review. That review application has been decided on 18.9.2009. Aggrieved by the order rejecting the review, on 12.11.2009 the petitioners preferred an appeal under Section 7I of the E.P.F. Act. That appeal was decided on 18.11.2009 by the Appellate Tribunal. 5. The Appellate Tribunal has dismissed the appeal by concluding that it had been filed beyond the period of limitations and therefore was not maintainable. A perusal of the order of the Appellate Tribunal indicates that the Tribunal has computed the delay in preferring the appeal incorrectly. Admittedly, the order under Section 7A had been passed on 13.4.2009. This is the order which has been considered by the Appellate Tribunal while concluding that the appeal was filed beyond the period of limitation, although the appeal was not preferred against this order. The order passed under Section 7A was received by the petitioner on 27.4.2009. A review application was filed under Section 7B. However, since it was not filed in the prescribed format, another review application was filed on 11.8.2009. That application was rejected on 18.9.2009. The period of limitation for filing an appeal before the Tribunal is 60 days. The appeal in the present case has been filed on 12.11.2009. That means the appeal has been preferred within 60 days of 4 W.P.No.134.10 the order passed under Section 7B which was decided on 18.9.2009. Therefore, in my opinion, the impugned order palpably is incorrect and must be set aside. 6. Instead of directing the appeal to be remanded, in my opinion, it would be appropriate to remand the matter to the Provident Fund authorities acting under Section 7A of the E.P.F. Act. This is because, while passing the order under Section 7A, the Provident Fund authorities have not taken into account the effect of the order declaring the petitioners’ unit as a “sick unit” under the Sick Industrial Companies (Special Provisions) Act, 1985. The Company has been declared sick under Section 3(1)(o) of the Act and, therefore, it will be necessary for the Provident Fund authorities to consider the impact of this order on the proceedings before them. 7. However, the petitioner admits that an amount of Rs. 48,10,409/- is due and payable by the petitioners as against the claim of Rs.1,26,08,529/- for the period from December, 2005 to February, 2008. The amount of Rs.48,10,409/- will be deposited in the equal monthly instalments of Rs.12 lacs each with the Provident Fund authorities. The last instalment will be paid along with the balance of Rs.10,409/-. The first 5 W.P.No.134.10 such instalment shall be deposited on or before 30.8.2010. 8. Any two consecutive defaults in depositing the instalments will mean that the earlier order dated 13.4.2009 will revive. 9. Mr.Suresh Kumar appearing for the Provident Fund Commissioner states that the notice and the demand for the payment of interest under Section 7Q and damages under Section 14B will be issued to the petitioners in respect of the order dated 19.6.2007. The statement is accepted. 10. Writ petition disposed of accordingly. ..... 6 W.P.No.134.10