(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 1094 OF 2011 WITH WRIT PETITION NO. 1544 OF 2010 WRIT PETITION NO. 1094 OF 2011 M/s. Arco Transport Company, A Partnership Firm, Tukaram Shripat Compound, Ajanta Road, MIDC Area, Jalgaon, District : Jalgaon, Through its Partner, Mohammed Rafique Abdulla Patni, Age : 43 years, R/o. Tukaram Shripat Compound, Ajanta Road, MIDC Area, Jalgaon, District : Jalgaon. .. Petitioner. versus Assistant Provident Fund Commissioner, Employees Provident Fund Organization, Sub Regional Office, P-11, Bhavishya Nirvah Nidhi Bhavan, MIDC, Satpur, Nashik - 422 007. .. Respondent. ....................... (2) Mr. Sandesh R. Patil, Advocate, for the petitioner. Mr. K.B. Choudhari, Standing Counsel, for the respondent. ........................ WRIT PETITION NO. 1544 OF 2010 1. The Asst. P.F. Commissioner, Sub-Regional Office, P-11, Bhavishya Nidhi, M.I.D.C., Satpur, Nasik - 422 007. 2. The Enforcement Officer, Employees Provident Fund Organization, Sub-Regional Office, P-11, MIDC Area, Satpur, Nasik - 422 007. .. Petitioners. versus 1. M/s. Arco Transport Company, A Partnership Company, Registered office : Tukaram Shripat Compound, Ajanta Road, Jalgaon - 425 003 (Maharashtra). 2. The Presiding Officer, Employees Provident Fund Appellate Tribunal, New Delhi. .. Respondents. ........................... (3) Mr. K.B. Choudhari, Standing Counsel, for the petitioners. Mr. Sandesh R. Patil, Advocate, for respondent no.1. Respondent no.2 served (formal party). *************** CORAM : B.P. DHARMADHIKARI, J. DATE : 27TH APRIL 2011 ORAL JUDGMENT : 1. Heard Adv. Mr. K.B. Choudhari, for petitioners in Writ Petition No. 1544/2010, and Adv. Mr. S.R. Patil, for petitioner in Writ Petition No. 1094/2011. 2. Rule. Rule made returnable forthwith. Heard finally with consent. 3. The orders dated 23-4-2009 and 8-6-2009, passed by the Employees' Provident Fund Appellate Tribunal (EPFAT), New Delhi, in Appeal No. 348(9) of 2005, are questioned before this court by Department in Writ Petition No. 1544/2010. While in Writ Petition No. 1094/2011, order dated 24-12-2010, passed (4) by the Assistant P.F. Commissioner (Compliance), Nasik, under Section 7A of 1952 Act, is questioned. 4. Adv. Mr. K.B. Choudhari contends that in appeal memo itself, employer accepted that P.F. dues on watchman charges were not paid inadvertently and had accepted to deposit it after decision of appeal. In view of this acceptance, non- application of mind by the Appellate Tribunal is apparent. He invites attention to orders passed on 6-10-2004 to point out that there, apart from the P.F. dues, cartage door delivery charges, watchman charges, P.F. dues on leave salary charge were also asked for. In view of the settled law, learned Counsel states that the demand on leave salary can be ignored. He contends that looking to the nature of the establishment of respondent, the work of cartage and need for door delivery boys is permanent and hence the Appellate Tribunal needs to re-apply its mind in relation to watchman charges and cartage door delivery charges. 5. Adv. Mr. S.R. Patil points out that the appellate order does not permit Department to demand any contribution on cartage door delivery and inspite of this, in subsequent order passed under Section 7A of the Employees' Provident Fund & Miscellaneous Provisions Act, 1952 (For short, "1952 Act"), on 24th December 2010, fresh demand in that respect has been (5) made. The said order is, therefore, unsustainable. He further contends that a recovery notice for dues mentioned therein is also issued on 5th April 2011. He is relying upon judgment of Hon. Apex Court, reported at 1995 SCC (L & S) 162, in the case of Employees' State Insurance Corporation Vs. Premier Clay Products, to urge that when work is of casual nature or uncertain, the employees engaged on ad hoc basis to take care thereof cannot be treated as employees within the meaning of Section 2(f) of 1952 Act and no contribution on salary paid to them can be demanded. He contends that consideration of this aspect by Appellate Tribunal in its order dated 23-4-2009 does not call for any interference. 6. It is apparent that order under Section 7A of 1952 Act, impugned in Writ Petition No. 1094/2011 by the employer, is passed after the appellate order dated 23-4-2009 came to be stayed by this court on 5-3-2010. If the order dated 23-4-2009 falls to ground for any reason, the subsequent orders cannot stand. 7. Perusal of order dated 23-4-2009 reveals the refusal to look into ground "J" in appeal memo filed by employer before Appellate Tribunal. The definition of employee has been looked into and then in paragraph 5, findings on the basis of judgment of (6) Hon. Apex Court reported at 1971 (I) LLJ 415, in the case of Provident Fund Inspector Vs. T.S. Hariharan, and then judgment of Hon. Delhi High Court reported at 1975 LIC 1186, in the case of Laxmi Restaurant Vs. RPFC, have been recorded. It has been also found that identity of workers was not established. The employment of delivery boys was not certain or then the person rendering service was also not same. However, in the process, the nature of business undertaken by the employer has not been evaluated. 8. The employment of casual labour to take care of a temporary emergency beyond control of establishment is altogether different thing. Whether facts in the present matter warranted grant of such employment was the question which ought to have been answered by the Appellate Tribunal. As that has not been done, impugned order dated 23-4-2009 is unsustainable. 9. In view of this, it is apparent that subsequent order dated 24-12-2010 passed under Section 7A of 1952 Act and assailed in Writ Petition No. 1094/2011 and the recovery notice issued subsequently are rendered unsustainable. 10. In the result, the petitions are allowed. (7) (i) The impugned order dated 23-4-2009, by the learned Presiding Officer of Employees' Provident Fund Appellate Tribunal, New Delhi, in Appeal No. 348(9) of 2005, is quashed and set aside. The appeal filed by the respondent is restored back to the file of EPFAT for its fresh consideration and decision only in relation to demand of P.F. contribution on cartage door delivery charges and watchman charges. (ii) So also, order impugned in W.P. No. 1094/2011 i.e. dated 24-12-2010, passed by the Assistant P.F. Commissioner (Compliance), Sub-Regional Office, Nasik (Exhibit "A" with petition), along with recovery notice issued subsequently, are quashed and set aside. (iii) The Department is, however, at liberty to pass fresh orders under Section 7A of 1952 Act for subsequent period, after EPFAT decides Appeal No. 348(9) of 2005. (iv) Parties are directed to appear before Appellate Tribunal on 4th July 2011 and Tribunal thereafter shall attempt to decide the appeal afresh as early as possible and in any case, by 31st October 2011. (8) 11. Rule is made absolute accordingly in both petitions. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp1094etc