WP/6932/2010 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6932 OF 2010 M/s.Ashwamedh Machines Pvt. Ltd. ... Petitioners V/s. Assistant Provident Fund Commissioner ... Respondent Mr.M.S. Topkar for Petitioners Mrs.S.V. Bharucha for Respondent CORAM: SMT.NISHITA MHATRE, J. DATE: MARCH 8, 2011 P.C.: 1. The petitioners have approached this Court against the order passed on 31.7.2003 by the Provident Fund authorities. The petitioners contend that on 17.12.2005, they became aware of the intention of the respondent to auction their properties because of a newspaper advertisement published in the daily newspaper `Sakal’. The petitioners therefore approached the office of the respondent and were informed that an order u/s 7A of the Employees Provident Fund and Miscellaneous Provisions Act had been passed against them on 31.7.2003. The petitioners were liable to pay contributions to the tune of Rs.5,37,674/- for the period from February, 2001 to June 2003. On a receipt of the order passed u/s 7A, the petitioners applied to the respondent u/s 7A(4) for restoration of the proceedings u/s 7A which had been decided ex-parte. The application was made on 14.2.2006. The petitioners did not hear from the respondent about the fate of their application and therefore, they sent a WP/6932/2010 : 2 : letter to the respondent which was received on 18.2.2010 by the petitioners asking for information. By an order dated 14.6.2010, the application was rejected firstly on the ground that the proceedings under section 7A were not decided ex-parte and secondly because the application u/s 7A(4) was barred by limitation. 2. The provisions of section 7A(4) permit an employer to approach the provident fund authorities for setting aside the order which may be passed ex parte u/s 7A(1) if the application is made within three months from the date of communication of the order. In the present case, the petitioners have averred that the order passed u/s 7A(1) was not communicated to them at any point of time before the advertisement appeared on 17.12.2005 in `Sakal'. This averment has not been controverted by the respondent. In fact Ms.Bharucha fairly states that she has no material to indicate that the order was communicated to the petitioners. 3. Apart from this, the order dated 31.7.2003 passed u/s 7A(1) is obviously ex- parte because the respondent has noted “since none appeared on behalf of the establishment and the details of the dues have not been received, the dues are assessed on the basis of available records with this office and the matter is decided ex-parte”. Therefore, the observations of the respondent in the impugned order dated 14.6.2010 that the decision u/s 7A(1) was not ex-parte is incorrect. 4. In these circumstances, the order dated 14.6.2010 is set aside. The order dated 31.7.2003 is passed u/s 7A(1) is also set aside. The matter is remanded to the respondent to decide the proceedings initiated u/s 7A afresh. The petitioners shall appear before the respondent in the proceedings u/s 7A on Monday, the 28th WP/6932/2010 : 3 : March,2011 at 11 am. It is expected that these proceedings will be disposed of as early as possible with the cooperation of the petitioners. 5. Writ Petition is disposed of accordingly.