1 901 wp 658.11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION K WRIT PETITION NO. 658 OF 2011 Cotton Corporation of India Ltd. .. Petitioner Vs. The Assistant Provident Fund Commissioner & Ors. .. Respondent Mr. J.P. Cama, Senior Counsel a/w Mr. Ajay Khaire i/b The Law Point for the Petitioner. Mr. Suresh Kumar a/w Mr. Deepak Rai for Respondent nos. 1 and 2. CORAM: K.K. TATED, J. DATE : 2ND AUGUST, 2011 P.C. 1. Heard the learned counsel for the Parties. 2. By this Petition under Articles 226 and 227 of the Constitution of India, the Petitioner – original Appellant challenges the order dated 3rd December, 2004 passed by the Assistant Provident Fund Commissioner under section 7-A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 and the order dated 20th October, 2010 passed by the Appellate Authority. 2 901 wp 658.11.doc 3. The learned senior counsel appearing on behalf of Petitioner states that the Petitioner purchases seed cotton called ‘kapas’ from farmers/cultivators at regulated market yards at various places. The Petitioner does not have any factories anywhere in India. The seed cotton purchased by the Petitioner from farmers/cultivators is then transferred to the local Ginning and Pressing Factories for processing, which are entrusted the work on seasonal basis and that rate of ginning is fixed on per quintal on season to season basis and pressing charges are paid per bale as per the terms of agreement entered into between the Petitioner and Ginning and Pressing Factories. The Petitioner is entrusting the Ginning and Pressing work to various Ginning and Pressing Factories on piecemeal basis and these factories are carrying out work of Ginning and Pressing not only of the Petitioner, but also of other parties in the area on job work basis and that the factory owners are the principal employers of the employees engaged by them for the purpose of doing the Ginning and Pressing work of the parties, including the Petitioner. He further states that the work of Ginning and Pressing of seed cotton is carried out in the factory premises and the factory owners do the work by engaging their employees, under their supervision and control. His contention 3 901 wp 658.11.doc is that those employees are engaged in the activities of certain Ginning and Pressing Factories and those Ginning and Pressing Factories are independent entities. He submits that this evidence is necessary for determining as to whether those employees of those Ginning and Pressing Factories are employees of the Petitioner on whose behalf whether the Petitioner is required to pay any contribution towards provident fund. 4. The learned senior counsel appearing on behalf of Petitioner states that initially this court (Coram: H.L. Gokhale, J. as he the then was) by order dated 17th September, 1999 in Writ Petition no.2334 of 1999 directed the Respondents authority, before passing any order under section 7A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 that they should hold detailed enquiry by issuing notices to all the Ginning and Pressing Factories to whom the Petitioner is providing work. The learned counsel appearing on behalf of the Petitioner pointed out that inspite of the specific directions from this court in Writ Petition No.2334 of 1999, the Assistant Provident Fund Commissioner without collecting all the information as directed by this Court in Writ Petition No.2334 of 1999 passed order dated 3rd December, 2004. He pointed out that in 4 901 wp 658.11.doc para 2 of order, the Assistant Provident Fund Commissioner specifically recorded that in order to collect the data from Ginning and Pressing Factories engaged by the Branches of this establishment all over India, the Enquiry Officer ordered that the information be first collected from respective original Provident Fund Commissioner of different States from all over India and accordingly letters were issued but nothing happened in that matter for more than four and half year and therefore, he passed the order dated 3rd December, 2004. He submitted that it is crystal clear from the said para itself that the Assistant Provident Fund Commissioner without following the order passed by this court passed the impugned order dated 3rd December, 2004. Even the Appellant Authority without considering these facts dismissed their Appeal by order dated 20th October, 2010. 5. Pursuant to the order passed by this court the Respondent filed their affidavit-in-reply dated 5th July, 2011. I have gone through the said affidavit-in-reply, no where they explained how they complied with the order passed by this court in Writ Petition No.2334 of 1999. These facts clearly show that the Respondent without holding detailed enquiry as directed by this court in the order dated 17th September, 1999, passed order dated 3rd December, 2004 under 5 901 wp 658.11.doc section 7-A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952. 6. Considering these facts, both the orders passed by the authorities dated 3rd December, 2004 under section 7-A the Employees Provident Funds and Miscellaneous Provisions Act, 1952 and order dated 20th October, 2010 passed in Appeal are set aside. 7. Matter is remanded to the Assistant Provident Fund Commissioner to hold afresh enquiry as per the directions given by this court in Writ Petition no.2344 of 1999. 8. With these directions, Writ Petition is disposed of accordingly. (K.K. TATED, J.)