1 WP No.11485/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.11485/2010 M/s The Hotel Shaolin Chinese Restaurant, through it's Ex-Proprietor - Shri Kuldeepsingh Nirh, Age: 66 Yrs., occu.Nil. R/o Kushal Nagar, Jalna Road, Aurangabad. - PETITIONER VERSUS 1) The Assistant Commissioner, Employees Provident Fund & Misc.Provisions of Act, "Bhavishya Nidhi Bhawan", Town Centre, Commercial Area, CIDCO, New Aurangabad - 431 003. 2) The Presiding Officer, Employees Provident Fund Appellate Tribunal, Core 2, 4th floor, Scope Minar, Laxmi Nagar, Dist. Centre Delhi 110 092. - RESPONDENTS ***** Mr.BR Kaware & RP Bhumkar, Advocates for Petitioner; Mr.KB Choudhari, Adv. For Respondent No.1. ----- CORAM : K.U.CHANDIWAL, J. DATE : 21st NOVEMBER, 2011. 2 WP No.11485/2010 ORAL JUDGMENT: 1) Heard. Rule. Rule made returnable forthwith by consent of parties. Perused the order impugned. 2) The petitioner questions propriety and legality of the order dated 7th July, 2003 passed by Respondent No.1 and order dated 20th September, 2010 in Appeal No.ATA 594(9)2005 recorded by Respondent no.2. 3) Summons were issued by the office of Respondent No.1 to the writ petitioner, which was indeed served upon the subsequent purchaser of the hotel premises. This is even referred in the order of Respondent No.1. 4) Reading the order, which is in the form of proceedings, it is explicit at internal page 4, the officer has said it is ex parte order and it is recorded, based on certain information received from ESIC department and the dues are accordingly calculated. It is curious, before the same authority, the petitioner has placed lease agreement, photo state copy of the agreement of sale dated 18.8.1996. However, the Respondent No.1 did not browse the same, nor ventured to discard the same, for the reason which was expected of him. Reliance, if any, 3 WP No.11485/2010 placed by Respondent No.1 on ESIC department, was certainly behind the back of the petitioner, and no opportunity was given to address these details. The establishment was in use, occupation and possession of the petitioner, from the record, from 1989 till 1994. However, the liability is again fasten against the petitioner, though he had parted with the property to the subsequent purchaser post 1994. 5) The Tribunal in its order dated 20th September, 2010 did not address this basic facts in the matter and went on to observe burden lies on the appellant to prove the strength of the staff, as it was within the knowledge of the appellant therein. Reliance place by the Tribunal to the judgment in the matter of Saraswati Construction Company Vs. CBT reported in 2010 LLR 684, was altogether with distinct features and could not have been coined against the writ petitioner. Since the order of the Presiding Officer of the Appellate Tribunal does not answer the basic question raised by the petitioner before the Assistant Commissioner, the order smacks of merit and, therefore, warrants interference. Both the orders, challenged by the writ petitioner, do not sustain in law and, therefore, need to be quashed and set aside. 4 WP No.11485/2010 6) Needless to indicate, if the Respondent No.1 desires to issue notices in accordance with Section 7A of the EPF & MP Act, 1952 or other provisions of law, the authorities are at liberty to take appropriate steps. sd/- (K.U.CHANDIWAL) JUDGE bdv/