1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 5271 OF 2009 (Asstt. Provident Fund Commissioner vs. Parwani Builders Private Limited) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. AUGUST 03, 2010. Heard finally by consent of Shri Sundaram, learned counsel for the petitioner and Shri Phadnis, learned counsel for the respondent. An order under Section 7-A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act), was assailed by the respondent in an appeal before the Appellate Tribunal under Section 7(1) thereof. As at the relevant time, the appellate Tribunal was not functioning, Bench of this Court at Bombay was approached in Writ Petition No. 1532 of 2008 and on 10.03.2008, after hearing respective counsel, this Court passed an order and directed the petitioner (department) not to take any steps to execute the orders under Section 7-A and 7-B of the Act during the pendency of that appeal. However, it was on condition that an amount of Rs.38,02,124/- was deposited by the respondent – company with present petitioner within one week. The Appellate Tribunal was directed to consider the challenge in appeal 2 uninfluenced by the deposit so made by the respondent. The appeal was then considered and it appears that on 28.03.2008, present petitioner did not make grievance before the Appellate Tribunal that amount as per orders of this Court dated 10.03.2008 was not deposited. The Tribunal on that day had dispensed with pre-deposit and that order was then challenged before this Court in Writ Petition No. 3878 of 2008. The grievance before this Court, as contended by Shri Sundaram, learned counsel, was that the respondent – company got the order of waiver of deposit on 28.03.2008 by suppressing the fact of the requirement of deposit as per orders of this Court. This Court in its order dated 08.09.2008 found that the order of waiver was passed on 28.03.2008 after hearing the appellant as also the representative for present petitioner. It found that both did not point out the need of deposit to the Appellate Tribunal. This Court was then informed that the petitioner had moved an application for modification of order of waiver of pre- deposit and as no orders were till then passed on that application, Writ Petition No. 3878 of 2008 was disposed of on 08.09.2008 expecting the Appellate Tribunal to decide the application for modification of the order in the light of orders made by this Court on 10.03.2008. In this back ground, Shri Sundaram, learned counsel, has invited attention to the orders dated 05.05.2009 to urge that the Appellate Tribunal has overlooked the importance of deposit of amount of 3 Rs.38,02,124/- and according to him in fact it has side tracked that issue. He states that the Appellate Court could not have maintained the order of pre-deposit after non-compliance with the orders of this Court dated 10.03.2008 was pointed out to it. He further states that in this back ground, the later order finally allowing the appeal passed on 03.09.2009 also needs to be quashed and set aside. According to Shri Phadnis, learned counsel for the respondent, the Appellate Tribunal was permitted to proceed further uninfluenced by deposit and the Appellate Tribunal has accordingly proceeded further in the matter. He contends that the amount was directed to be deposited with the department and it was not a statutory deposit under Section 7-O of the Act. The Appellate Tribunal has correctly appreciated the controversy in its order dated 05.05.2009. His contention is, the grievance of non-compliance with the order dated 10.03.2008 is being raised belatedly and deliberately after noticing that the order passed on merits in appeal is unassailable. He states that said order was not challenged immediately and appeal was allowed to be decided on merits and thereafter that order as also order on merits are being questioned. According to him, this Court should not interfere in the matter. Shri Sundaram, learned counsel states that after the receipt of order dated 05.05.2009 and by the 4 time matter was processed further, the appeal itself was finally adjudicated and hence both the orders are required to be challenged together. He also wants to address this Court on merits of the order dated 03.09.2009, passed by the Appellate Tribunal in appeal. The question, who is responsible for not complying with the orders of this Court dated 10.03.2008 is totally irrelevant for this Court in present proceedings. The order was obtained by the present respondent and this Court granted interim protection subject to the respondent depositing that amount with the petitioner within one week. The present respondent was expected to comply with that order and, therefore only this Court observed that the Appellate Tribunal shall not be influenced by the fact of deposit. It is to be noted that this stay was obtained by present respondent by giving an undertaking before the Bench of this Court at Bombay that it would deposit entire amount within one week. In view of this undertaking and the direction dated 10.03.2008, it is obvious that there was no question of Section 7-O of the Act, surviving for consideration thereafter. The orders dated 28.03.2008 passed by the Appellate Tribunal waiving that amount or then presence of the representative of present petitioner before that Tribunal at that time or then the fact of not pointing out orders of this Court to it by present respondent, became inconsequential after this Court 5 again on 08.09.2008 vide its orders in Writ Petition No. 3878 of 2008 asked it to pass order on application for modification. The orders passed on 05.05.2009 show clear avoidance to consider these directions and also undertaking noted in order dated 10.03.2008 and the deposit ordered by it. In view of the undertaking and direction, the Appellate Tribunal could not have consider the application under Section 7-O of the Act for waiver of pre-deposit and it has still embarked upon that enquiry. Not only this, even if its earlier order dated 29.03.2008 was without knowledge of orders of this Court dated 10.03.2008, on 05.05.2009 all relevant facts were within its knowledge and, therefore, it was its duty to see that undertaking given to this Court and orders of this Court dated 10.03.2008 were complied with. It could not have avoided that obligation. It is apparent that as the amount of pre- deposit has not been paid by the respondent, the appeal could not have been considered on merits. It is also apparent that because of non-compliance with the orders of this Court dated 10.03.2008, the appeal of the respondent could not have been adjudicated on merits. The impugned orders dated 05.05.2009 along with orders dated 28.03.2008 are accordingly quashed and set aside. The order passed on merits on 03.09.2009 by the appellate Tribunal is also quashed and set aside. The appeal is restored back to the file of Appellate Tribunal for taking fresh decision in 6 accordance with law. Writ Petition is thus allowed. Rule made absolute accordingly. Issue notice to Managing Director of the respondent through Ajay Damodar Parwani and representative of the petitioner before Provident Fund Appellate Tribunal Shri R.R. Rajesh, as to why proceedings for Contempt should not be initiated against them. Notice is made returnable on 06.09.2010. List the matter before appropriate bench on that day. JUDGE *GS.