IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.509 of 2008 M/s Vaishali Glass Industries, a Partnership Firm, having its place of business at Kacchi Dargah, Sabalpur, P.S.-Alamganj, District- Patna through one of its Partner, Sarwan Kumar Singh, S/o Late Jag Narain Singh, R/o Vivekanand Colony, Patna City, P.S.-Chowk, District- Patna. ……… Petitioner. Versus 1. The Regional Provident Fund Commissioner, Bihar, Patna having its office at Bhavishya Nidhi Bhavan, R-Block, Road No. 6, Patna. 2. The Assistant Provident Fund Commissioner, Bihar, Patna. ……. Respondents. ----------- 6. 02.11.2010 1. Heard learned counsel for the petitioner and learned counsel for Respondents namely Regional Provident Fund Commissioner and Assistant Provident Fund Commissioner, Bihar. 2. This writ petition has been filed challenging order dated 25.09.2007 (Annexure-7) passed by the Assistant Provident Fund Commissioner (Respondent no. 2) under the provision of Section 7(A) of the Employees’ Provident Fund &Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act for the sake of brevity) by which the dues under the aforesaid Act had been assessed considering the employees strength of the petitioner’s establishment as 300 approximately. 3. Learned counsel for the petitioner submits that petitioner is a partnership firm engaged in manufacturing of Glass of Lantern and Chimni, which are used in rural areas for 2 domestic lighting purpose. Learned counsel for the petitioner further submits that a proceeding under Section 7 (A) of the Act was initiated before the Assistant Provident Fund Commissioner for determination of provident fund dues for the period 5/1997 to 4/2006 against the petitioner and the said proceeding finally culminated into the impugned order dated 25.09.2007. 4. Learned counsel for the petitioner argues that while the matter was to be finally argued, the mother of the Manager of the petitioner’s firm died on 10.09.2007 and her last rites namely Shradh was to be held on 21.09.2007 and hence he filed an application dated 20.09.2007 (Annexure-6) before the authority concerned for adjournment, but without considering the said application and even without rejecting the same, the impugned order had been passed ex-parte without hearing the petitioner. 5. The second point raised by learned counsel for the petitioner is that the enquiry held in the matter was absolutely frivolous and the said reports (Annexure-3 & Annexure-3A) were without proper verification mentioning the name of about 201 employees without giving their parentage, posts or scales. But by the impugned order the Assistant Provident Fund Commissioner has taken the 3 employees strength of the petitioner establishment as approximately 300. He further submits that the petitioner has produced documents, including balance sheet showing 96 workers of the petitioner’s Establishment, which was correct and proved by the record, but without appreciating the matter, the authority concerned rejected the claim of the petitioner. 6. On the other hand, learned counsel for the respondents raises preliminary objection that since a revision and an appeal are provided under Section 7(B) and under Section 7(I) of the Act, but without utilizing the said remedy, the petitioner has filed this writ petition, which is thus not maintainable. Learned counsel for the respondents further vehemently opposes the contentions of learned counsel for the petitioner and submits that the petitioner had taken umpteen number of adjournments due to which the proceeding had unnecessarily been delayed since 2003 and hence, the said time petition of the petitioner was rightly not considered. He further states that the materials on record clearly established that the petitioner has concealed the matters with regard to its employees and on enquiry 201 employees were found and their names were noted in Annexure-3A, but there were some other employees also whose names could not be found and hence in the impugned order the authority concerned had 4 rightly taken the strength of the employees of the petitioner to be 300 approximately. 7. Considering the entire facts and circumstances, it is quite apparent that the impugned order dated 25.09.2007 is an ex-parte order and admittedly 5 days prior thereto an adjournment petition was filed on 20.09.2007 (Annexure-6) by the petitioner due to the death and Shradh of his mother, but the said petition was not considered while passing the impugned order. So far the earlier adjournments are concerned, they are not the subject matter of the case nor on those occasions such a serious happening had taken place in the family of the Manager of the petitioner. Hence, it was the duty of the authority concerned to pass an appropriate order on the said petition dated 20.09.2007 before passing an ex- parte order dated 25.09.2007. 8. Furthermore, provident fund is to be given to individual employees according to their posts on which they are functioning and the scales which they are getting. Hence, it was essential for the authority concerned to ascertain the total number of the employees and their parentage, posts and scales before passing the impugned order. Such vagueness cannot be allowed as the Act and the circumstances require specific details of every employee so that the provident fund 5 may be attributed and paid to the concerned employee. This is apparently not done in the impugned order. 9. In the aforesaid facts and circumstances it is quite apparent that the impugned order is not maintainable under the specific provisions of law and hence this court thinks it proper not to ask the petitioner to avail the statutory remedies of appeal or revision rather taking into consideration the aforesaid jurisdictional error committed by the Assistant Provident Fund Commissioner, this court quashes the impugned order dated 25.09.2007 sent vide letter dated 27.09.2007 (Annexure-7) and the said authority is directed to consider the matter afresh in accordance with the specific provisions of the Act. If any such order is passed deciding the proceeding and the petitioner is aggrieved by any such order he may challenge the same before the authority as provided under the Act. 10. With the aforesaid observations and directions this writ petition is disposed of. Sujit (S.N.Hussain,J.)