WPLOD2370-10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION LOD. NO.2370 OF 2010 Associated Cement Company Ltd. .. Petitioner Versus The Assistant Provident Fund Commissioner and Ors. .. Respondents Mr.J.P.Cama, Senior Advocate with Anupam Surve i/b. H.Mehta & Co. for petitioner Mrs.S.V.Bharucha for respondent No.1 to 3 Mr.P.M.Patel for respondent No.4. CORAM: S.C.DHARMADHIKARI, J. DATED: 31st January 2011 P.C. 1] This petition under Article 226 of the Constitution of India is directed against the order passed by the Presiding Officer, Employees Provident Fund, New Delhi in an appeal which was preferred by the petitioner – appellant. The challenge in the appeal was to an order passed by the Authority under the Employees Provident Fund and Miscellaneous Provisions Act 1952 (Act for short) and particularly the initiation of the proceedings under section 7A thereof. 2] Mr.Cama, learned Senior Counsel appearing in support of the WPLOD2370-10 2 petition has raised several contentions. He submits that the Appellate Authority has failed to apply his mind to the fact that the establishment was distinct from that of the appellant company. The Sports Club is not managed and administered by the petitioner appellant as erroneously concluded. He submits that the sports club and guest house may be having employees but they are not engaged by the petitioner appellant. 3] Mr.Cama has invited my attention to the order passed on 7th October 2006 by the 9th Labour Court, Mumbai in Application (IDA) No. 781 of 1998. He submits that the employee who had approached the said Labour Court was working with the Sports Club and on appraisal of oral and documentary evidence the Labour court concluded that the Sports Club is a separate entity/ establishment inasmuch as it has separate rules and separate attendance register. The salaries are also paid by the Treasurer of the Sports Club. In these circumstances, Mr.Cama’s submission is that the appellate Authority has committed an error apparent on the face of record and has overlooked the binding decision of the Supreme Court reported in 1978 (2) SCC 358 (Punjab National Bank Vs. Gulam Dastagir). 4] On the other hand, Ms.Bharucha, learned Counsel for WPLOD2370-10 3 respondents justified the conclusion. Similarly Mr.Patel appearing for respondent No.4 submitted that none of these contentions have any substance. 5] It is not necessary to go into the correctness of the rival contentions. Suffice it to note that the order passed by the Appellate Authority and impugned in this petition is not dealing with any of the contentions which have been also raised in the memo of appeal. My attention is invited to the memo of appeal by Mr.Cama as well. From paras 2 to 5 the Presiding Officer notes the rival contentions and in para 6 the Presiding Officer has reproduced section 2F of the EPF Act. However, he has not concluded as to whether employees in this case have been employed for wages in work manual or otherwise in connection with the work of establishment. In other words the establishment of the employment was in connection with the work of M/s.Associated Cement Company Ltd., and that the Sports Club and Guest House were part of the petitioner’s establishment is not the conclusion recorded. Although, he has in paras 7 of the order referred to the dominant feature of the definition while concluding in para 8 that the Guest House has no independent identity and it is part and parcel of the establishment of the petitioner – appellant. the Presiding Officer has referred to some vouchers WPLOD2370-10 4 which have been produced to denote that the payment was made to the drivers by the petitioner establishment. However, in the entire para there is no reference to how this guest house could be said to be a part & parcel of the petitioner establishment. The payment made to Drivers does not mean that all employees are Drivers and are working in connection with the work of the petitioner. 6] Time and again while setting aside the order of the same Presiding Officer, I have observed that the duty of the Appellate Authority is to independently scrutinise the materials and appraise the oral and documentary evidence on record. He is not a rubber stamp which confirms orders, merely because they are passed under a Legislation which is beneficial and social. The Authority cannot repeatedly refer to paras of some judgements or extracts from the same to support its conclusion. The applicability of the judgement to the facts of the case before the Appellate Authority is a crucial aspect and that must be demonstrated. 7] In the instant case, finding that the Appellate Authority has failed to apply its mind to certain vital and material aspects of the matter, there is no alternative but to quash and set aside its order. WPLOD2370-10 5 8] The impugned order dated 25th March 2010, a copy of which is annexed as Annexure D to the petition is quashed and set aside. The appeal is restored to the file of Appellate Authority for disposal afresh on merits and in accordance with law. The Appeal be disposed of as expeditiously as possible but after hearing both sides as also the Union – Respondent No.4 which is directed to be impleaded as party respondent to the restored appeal. 9] All contentions of both sides are kept open. I have merely touched upon them but no final opinion is expressed on the same. It is only with an endeavour to impress upon the Appellate Authority as to how it should discharge its functions, that I have referred to the contentions in some details. 10] Rule is made absolute in the above terms with no costs. 11] Needless to clarify that the attachment levied by the Authority in pursuance of the impugned order does not survive and it stands raised. From the amount of Rs.25 lakhs deposited in this Court a sum of Rs.15 lakhs with accrued interest be transferred to the credit of the Appellate WPLOD2370-10 6 Authority and balance be refunded back to the petitioner on production of authenticated copy of this order. (S.C.DHARMADHIKARI, J.)