1 wp 4244.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4244 OF 2011 M/s Precicuit Engineering Pvt. Ltd., (Formerly : M/s Apex Engineering Works), Plot No : 5, Udyog Mitra Coop. Industrial Estate, Chitegaon, Aurangabad, MS. .. Petitioners Versus The Employees Provident Fund Organization, SRO, N2, Bhavishya Nidhi Bhavan, Aurangabad. .. Respondent Shri T. K. Prabhakaran, Advocate for the Petitioner. Shri K. B. Choudhari, Standing Counsel for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 20TH JUNE, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2. The present petitioner had filed an appeal before the Tribunal being aggrieved by the assessment U/Sec. 7-A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. 2 wp 4244.11 3. The Tribunal vide its order dated 11.02.2005 directed the petitioner to deposit 40% of the amount as a pre deposit for entertaining the appeal. The petitioner has complied with the said order and has deposited the 40% of the amount on 07.03.2005. Thereafter, the Tribunal had issued a notice for hearing of the appeal scheduled on 30th March, 2005. 4. When the appeal was taken up for hearing, the Tribunal vide its order dated 22.02.2011 dismissed the appeal on the ground that the pre deposit of the amount has not been made. Aggrieved thereby the petitioner has filed the present petition. 5. Shri Prabhakaran, the learned counsel for the petitioner submits that the impugned order depicts total non application of mind on the part of the Tribunal. 75% of the amount directed by the High Court in Writ Petition No. 4529/2004 as is referred in the impugned order, in fact, was the amount directed by the High Court to be deposited for securing the stay of the orders of the Commissioner Provident Fund assessing the liability U/Sec. 7-A. Whereas the Tribunal specifically vide its order dated 11.02.2005 had directed the petitioner to deposit 40% as pre deposit for entertaining the appeal. The Tribunal could not have relied on the order passed by this Court in Writ Petition No. 4529/2004. The order of the High Court in the said writ petition was on 3 wp 4244.11 different premise altogether and had nothing to do with the condition of pre deposit as is required U/Sec. 7-O of the Act. 6. Shri Choudhari, the learned counsel submits that in fact, the petitioner had suppressed the order passed by the High Court and as the order of the High Court in Writ Petition No. 4529/2004 was not brought to the notice of the Tribunal, the Tribunal had ordered the petitioner to deposit 40% of the amount as pre deposit. It was duty of the petitioner to bring to the notice of the Tribunal order passed by the High Court directing the petitioner to deposit 75% of the dues within four weeks. In such circumstances, the order of the Tribunal cannot be faulted. 7. The petitioner is required to deposit 75% of the amount while filing an appeal before the Tribunal. But the Tribunal is vested with powers to either waive the condition of pre deposit or to direct the appellant therein to deposit such sum as the Tribunal would deem fit. The Tribunal in exercise of its discretion as laid down U/Sec. 7-O of the said Act directed the petitioner vide order dated 11.02.2005 to deposit 40% of the disputed amount. The petitioner complied the said order by depositing 40% of the amount within the stipulated period. 8. The Writ Petition No. 4529/2004 was filed by the petitioner 4 wp 4244.11 in this Court seeking stay of the order passed U/Sec. 7-A, as probably at the relevant time the Tribunal was not functioning after filing the appeal. The High Court considering the prayer for stay had directed the petitioner to deposit 75% of the amount. The discretion to be exercised by this Court while granting stay to the impugned order is based on altogether different considerations than the discretion of the Tribunal to direct pre deposit for entertaining the appeal. In view of that, the order passed by the High Court directing the petitioner to deposit 75% for stay of the impugned order U/Sec. 7-A would have no co- relation with the orders of the Tribunal directing the petitioner to deposit 40% as a pre condition. The stay order would be on altogether different footings. 9. In view of the fact that the Tribunal had already passed an order directing the petitioner to deposit 40% amount for entertaining the appeal, it could not have thereafter dismissed the appeal on the ground that 75% of the amount as was directed by the High Court was not deposited. The premise on which the said order was passed is improper and does not stand to any reason. In the light of above, the impugned order is quashed and set aside. The Tribunal shall hear the appeal filed by the petitioner on its own merits after giving an opportunity of hearing to the respective parties. 5 wp 4244.11 10. The Rule is accordingly made absolute, however, with no costs. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/June 11