1 wp 7237.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7237 OF 2011 M/s Relan Cloth Store, Through its Partner, Vinod Meghraj Relan, Age : 39 Years, Occu. : Business, Dhule. .. .. Petitioner Versus Assistant P. F. Commissioner, Nashik. .. .. Respondent Shri P. V. Barde, Advocate h/f Shri S. P. Shah, Advocate for the Petitioner. Shri K. B. Choudhari, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 10TH OCTOBER, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2. The petitioner has filed an appeal before the Employees Provident Fund Appellate Tribunal, New Delhi against the order 2 wp 7237.11 passed U/Sec. 7-A of the Employees Provident Fund and Miscellaneous Provisions Act 1952. The said appeal came to be dismissed in absence of the petitioner. Aggrieved thereby present petition is filed. 3. Shri Barde, the learned counsel holding for Shri S. P. Shah, the learned counsel for the petitioner submits that, the appeal was fixed for hearing at Mumbai Camp. The appeal was dismissed as the petitioner did not remain present. The petitioner filed writ petition, the same was allowed. The matter was fixed at Mumbai Camp after its restoration. At Mumbai Camp the advocate appearing for the petitioner expressed his inability to appear. The matter was adjourned and the same was listed for hearing at Aurangabad Camp on 22 nd February, 2011. The petitioner could not engage any advocate to represent the petitioner at Aurangabad. The appeal came to be dismissed on the said date. The said order is impugned in the present writ petition. 4. It is submitted by Shri Barde, the learned counsel for the petitioner that, the petitioner had engaged the lawyer at Delhi as the Appellate Tribunal is situated at Delhi and appeal is 3 wp 7237.11 required to be filed at Delhi. The said lawyer could not appear at Aurangabad Camp and the petitioner could not engage any other lawyer to represent the petitioner at Aurangabad. In such circumstances, the appeal came to be dismissed. Even on merits the Tribunal has not properly discussed the matter in issue. The two establishments could not have been clubbed. There is no functional identity and integrity between them. 5. Shri Choudhari, the learned counsel for the respondent submits that it is not the first time the petitioner remained absent. Earlier also the matter was dismissed for default, however this Court had restored the same. Even after restoration the petitioner failed to remain present and address the Tribunal though it had its camp at Aurangabad which is the place nearer to the petitioner. Ample opportunity is granted to the petitioner. The Appellate Tribunal has taken into consideration all the relevant aspects and thereafter has passed the order. No illegality has been committed in passing the impugned order. 6. With the assistance of learned counsel I have gone through the judgment. It is the fact that the appeal has been decided by 4 wp 7237.11 the Tribunal in the absence of the petitioner. The appeal is filed at Delhi. The petitioner had also engaged the lawyer at Delhi and the said lawyer could not appear before the Camp at Aurangabad. In such circumstances, the appeal was dismissed and the petitioner could not get the opportunity to put forth its case. 7. Taking into account the above conspectus of the matter, I am inclined to offer one more opportunity to the petitioner to contest the appeal on merits. However, the petitioner also deserve to be mulct with the cost. In the result I pass the following order. O R D E R A. The writ petition is allowed. B. The impugned order is quashed and set aside and the parties are relegated before the Appellate Tribunal on the condition that the petitioner pays cost of Rs. 5,000/- (Rs. Five Thousands only) to the respondent within a period of three weeks from today. C. The Appellate Tribunal shall decide the appeal No. 278/9/2004 afresh after giving an opportunity to the parties to put forth their case. 5 wp 7237.11 D. The parties shall appear before the Appellate Tribunal on 15 th November, 2011. E. Rule is made absolute in above terms. 8. It is made clear that I have not dilated on the merits of the matter. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Oct. 11