1 wp8423.10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 8423 OF 2010 WITH WRIT PETITION NO. 163 OF 2011 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. T.K. Prabhakaran, Advocate for the petitioner. Mr. K.B. Chaudhari, Advocate for respondents. 1. Both the Petitions can be disposed of by common order. Parties are heard finally by consent. 2. Order under Section 7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1972 is questioned by employer. 50% of the amount/liability worked out therein is deposited by it only to show bonafide in this Court. 3. Advocate Mr. Prabhakaran for petitioner has contended that initially the proceedings were taken up by the Assistant Provident Fund Commissioner and thereafter the matter was taken by the Regional Provident 2 wp8423.10 Fund Commissioner. According to him, therefore there were two cases going on simultaneously. All the records were provided to A.P.F.C. and in the impugned order as passed by R.P.F.C. it is wrongly recorded that no records were made available. He further points out that on 21.12.2010 for valid reason, the adjournment was sought but it was rejected by observing that on earlier nine occasions the matter was adjourned and the employer was not cooperating. He contends that from the impugned order, it appears that the balance sheet from the Income Tax was summoned by the R.P.F.C. and figures disclosed therein have been used to find out labour component and on it Provident fund dues have been worked out. His contention is that no previous notice of such exercise was given to the petitioner and they are not aware of the material which the respondents are using or are likely to use against the petitioner. 4. Advocate Mr. Chaudhari for department has stated that the petitioner has not co-operated with the Department. He wants to rely upon some instructions which contemplate appearance of responsible officer like the Director of Company to represent it in such matter. He points out that till the Advocate representing the petitioner appeared before the R.P.F.C., the Consultant by name Shri. Gandhi used to appear. His contention is such representation may not be legally binding on the petitioner and hence the department was insisting upon 3 wp8423.10 the compliance with those instructions. Learned Counsel further states that whenever the matter was taken up, the order sheets have been maintained and those order sheets show the adjournment on each date. There were no two proceedings. 5. After hearing the respective Counsel, I find that there was some confusion and some dispute between the parties. Nature thereof is not relevant for adjudication. I also noticed some personality clash between Officer and petitioner. The petitioner has shown his bonafide by depositing the amount with the Registry of this Court. In this situation, the petitioner can pass appropriate resolution and execute the necessary documents in favour of consultant so that acts of said consultant legally bind the petitioner Company. Resolution of Board of Directors and power of attorney executed in pursuance thereof in favour of such consultant should be placed in original on the file of R.P.F.C. If R.P.F.C. is satisfied with these documents, the R.P.F.C. shall permit the consultant to represent the petitioner Company. 6. The petitioner to place these documents on record of R.P.F.C. on 28.02.2011. The petitioner Company is free to engage Advocate to represent it before the R.P.F.C. if it finds representation through consultant impracticable. The R.P.F.C. then to supply documents to be used against the petitioner and to give petitioner 4 wp8423.10 opportunity to meet the same. Record if any produced by the petitioner will be looked into by R.P.F.C. after giving opportunity to the petitioner. If the petitioner wants to produce any other material in defence, then they are free to do so. 7. The matter appears to be old and hence the proceedings before the R.P.F.C. are expedited. The R.P.F.C. shall decide the same afresh finally as early as possible and in any case by 31st March, 2011. The petitioner through its Advocate states that it will co- operate with R.P.F.C. in expediting disposal of the matter. 8. The impugned order dated 21.12.2010 passed by the R.P.F.C. is therefore quashed and set aside and the proceedings are restored back to its file for taking fresh decision as mentioned above. 9. The amount in deposit shall be allowed to be withdrawn by party found entitled to it at the end of such enquiry after expiry of period of appeal under Section 7(i) of the E.P.F. Act. 10. Writ Petition No. 163 of 2011 is thus partly allowed by making Rule absolute therein as above. 11. In view of the orders passed in Writ Petition No. 163 of 2011, challenge in Writ Petition No. 8423 of 2010 5 wp8423.10 is rendered infructuous and same is accordingly disposed of as infructuous. (B.P. DHARMADHIKARI) JUDGE. 10.02.2011 gas/wp8423.10