1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 9167 OF 2010 M/s. Khoobchand Sagarmal, 68, Bhagwan Mahavir Marg, Navi Peth, Jalgaon, Dist. Jalgaon. Through : Its Authorised Signatory ....Petitioner. Versus 1. Union of India 2. Assistant Provident Fund Commissioner, Sub-Regional Office, Nashik, P-11, MIDC, Satpur, Nashik - 422 007. ....Respondents. Mr. R.V. Ghuge, Advocate for petitioner. Mr. K.B. Choudhari, Add. Standing Council for respondent No. 2. CORAM: B.P. DHARMADHIKARI, J. DATED: 24th February, 2011. PER COURT : 1. Heard Advocate Shri. Ghuge for the petitioner, Advocate Shri. K.B. Choudhari for respondent No. 2. Service upon respondent No. 1 is not necessary. 2. Matter is heard finally with consent of parties. 3. It is not in dispute that without prejudice to his rights and contentions petitioner has cleared the entire amount as per the demand 2 of respondent No. 2 and has also begun to comply with the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. 4. Shri. Ghuge has pointed out that old establishment continued from 1962 till 1987. In 1989 a new plot was obtained and at different site, on the strength of new license, the same business was again taken up in 1991. He states that though new business was same, it is not the continuation of the earlier business. According to him, in this situation, in a new business, there were only 9 persons engaged on commission basis. The earlier coverage could not have been resorted to and the efforts made by the authority to club new establishment with old establishment is therefore arbitrary and unsustainable. He has further argued that the material on record does not show any contract of employment and commission paid, therefore, could not have been treated as wages. 5. Shri. Choudhari, on the other hand, has supported the impugned order. He points out that all relevant aspects are looked into even by the Appellate Court. 6. Perusal of the judgment delivered by Employee's Provident Funds Appellate Tribunal on 24th June 2010 reveals that it has referred to said contention in 4th paragraph of its order and thereafter in 6th paragraph again it has referred to certain facts. It has found that partners were 3 common and the establishment carried on the same business. It also noticed that employees were also same. In the background, it has relied upon the judgment reported in 1977 LAB I.C. 1041 in the case of M/s. Radhakrishna Vs. Regional PF Commissioner to note that in somewhat similar circumstances the inference of continuation of old business was drawn. Therefore, it has recorded a finding that there was no material to hold that appellant closed his business at any point of time. 7. It is apparent that here not only place of business has undergone change, but then a new license has been obtained. The arrangement on which employees were earlier worked also appears to be different. The employer specifically urged that there was no master and servant relationship and what was being offered was only commission. The fact that there was no business after 1987 till 1991 does not appear to have been looked into by Employee's Provident Fund Appellate Tribunal. 8. In this situation, as some disputed questions of facts fall for determination and petitioner has shown his bona fide by clearing arrears and also started compliance, I find that the interest of justice will met with by directing to respondent No. 2 to hold further inquiry under section 7-A of Employee's Provident Fund and Miscellaneous Provisions Act, 1952 by giving petitioner opportunity to produce additional material, if any, to substantiate their contention. Only for that purpose, the orders passed under section 7-A on 10.1.2002 is quashed and set 4 aside. Needless to mention that other consequential orders and the order of Employee's Provident Fund Appellate Tribunal dated 24th June 2010 therefore also fall to ground. 9. The petitioner shall appear before the respondent No. 2 on 17th March 2011 and shall abide by its further instructions/directions in the matter. Till the proceedings are decided the petitioner shall continue to comply with the provisions of E.P.F. & M. P. Act. 10. Petition is thus partly allowed. No costs. [ B.P. DHARMADHIKARI, J.] ssc/wp9167.10