1 wp3938-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3938 OF 2011 MGM New Bombay Hospital, Vashi .. Petitioner versus Regional Provident Fund Commissioner & Ors .. Respondents Mr.P.M.Bhagat with Ms.Smita Gaidhani for the petitioner. Mr.Suresh Kumar for the respondents. CORAM : S.C.DHARMADHIKARI, J. 23rd August 2011. P.C.: . The petitioners are aggrieved by an order of the Provident Fund Authority, seeking to recover the sum determined under an inquiry under section 7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 by coercive measures. 2 A statement is made in the petition that the inquiry under section 7A was initiated and the petitioners appeared on receipt of 2 wp3938-11.doc summons from time to time. The last time they appeared was on 20th August 2010 and they were informed that the matter has been concluded and reserved for orders. However, the inquiry was closed, but the Corporation directed the Enforcement Officer to submit a fresh inspection report, which inspection report appears to have been furnished, but without any reference to the petitioner- establishment. The records were verified by the Enforcement Officer and it appears that on 13th December 2010, he submitted his report. The petitioners were called upon to give their reply with regard to the contents of the report and the petitioners duly responded and placed all records, but although it was informed by the petitioners by a letter dated 20th April 2011 that the inquiry was closed on 20th August 2010, yet, the coercive measures were initiated under section 8F of the Act and the bank accounts were seized. 3 An ad-interim order has been made in this writ petition on 23rd May 2011, which is continuing. The sum of Rs.71,72,860/- is deposited in this Court and it is stated that in addition thereto, a sum of Rs.14,00,000/- and odd has been already recovered. It is 3 wp3938-11.doc submitted that the petitioners were never communicated the final order, post enquiry, under section 7A of the Act and it is for the first time that in the affidavit in reply, the Enforcement Officer has stated that final orders have been passed on 28th April 2011. The petitioners state that they had no notice of the proceedings after their letter regarding closure of the inquiry. All that they were aware of is a visit of the Enforcement Officer, but, beyond that, they were not given any opportunity of being heard on the report/further report of the Enforcement Officer. The order dated 28th April 2011 has not been passed after hearing the petitioners on all issues and objections. In such circumstances, the coercive measures are contrary to law and should be set aside. 4 On the other hand, it is contended on behalf of the Department that the inquiry was initiated and the order was passed as noted above assessing dues for the period 2005-2006 to 2008-2009. The petitioners have been accused of treating large number of employees as “excluded employees” and their dues are assessed, considering their wages of Rs.6500/- including those employees where 40% of consolidated salary falls within Rs.6500/-. 4 wp3938-11.doc The petitioners have been accused of resorting to such measures, so as to avoid coverage under the Act. Further, the Provident Fund contribution in respect of the employees of security force M/s.Guru Security Force and the medical store attached to the petitioner- establishment, has not been paid. It is stated that the total sum demanded is Rs.71,72,860/- and an amount of Rs.1405612.99/- was recovered through order made under section 8F of the Act. 5 To my mind, when such is the nature of the controversy, it will not be possible for this Court to resolve it in writ jurisdiction. When the petitioners are raising pleas with regard to non-compliance with principles of natural justice, so also the employees being excluded from the purview of the Act, it would be just, fair and proper to set aside the order dated 28th April 2011 and remit the matter to the Regional Provident Fund Commissioner for a fresh inquiry under section 7A of the Act. A fresh inquiry shall be held and concluded as expeditiously as possible and within a period of four months from the date of receipt of copy of this order. It is fairly stated that the dues in respect of the employees of the security force have already been remitted and that issue need not be re-opened and re- 5 wp3938-11.doc considered when the matter is remitted to the Regional Provident Fund Commissioner. The inquiry will now be held with regard to the two issues: (1) The employees of the medical store and; (2) Whether it is part of the petitioners-establishment or not and whether the employees referred to in para 4 of the affidavit, filed by the Enforcement Officer could be termed as excluded employees or not. 6 All contentions in relation to these aspects are kept open. The Regional Provident Fund Commissioner, while passing a fresh order, shall not be influenced by any of the findings and conclusions rendered earlier. To avoid any technical argument being canvassed in future, it is directed that the petitioners shall appear before the Regional Provident Fund Commissioner on 8th September 2011 at 10.30 a.m and thereafter he shall abide by the order and direction as issued above. 7 All amounts which are recovered already and the deposit which is made in this Court pursuant to the ad-interim order, shall be without prejudice to the rights and contentions of the petitioners. 6 wp3938-11.doc The amount shall be retained as deposit in this Court till the order under section 7A of the Act has been passed and communicated to the petitioner. The Registry to invest the amount in fixed deposit in any Nationalised bank. 8 The writ petition is disposed off in the above terms. No costs as to costs. (S.C.DHARMADHIKARI, J)