IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.713 of 2008 M/S Jain Lamp Industries, Buxi Maidan, Patna City through its Proprietor Mr. Gayanendra Kumar Jain………. petitioner Versus 1. Union of India through Regional Provident Fund Commissioner, Regional Office, R.Block, Road no.6 ,Bihar. 2. Regional Provident Fund Commissioner-II Regional office, R.Block,Patna-800001 3. Rajendra Prasad, s/o Bulkan Gope Karmalichak Bagicha, P.O. Begampur Patnacity, Patna. . ……………. Repondents. ----------- 5 30.06.2011 Heard learned counsel for the petitioner, learned counsel for the Union of India as well as learned counsel for respondent no.3. The petitioner is aggrieved by the order dated 03.12.2007 passed by the Regional Provident Fund Commissioner under para-26B of the Employees Provident Fund Scheme-1952.He submits that though proceedings were started and notices were issued under para-26 B of the Employees Provident Fund Scheme, 1952 but the impugned order dated 03.12.2007 has been passed by way of composite order also under section- 7A of the Employees Provident Fund and Misc. Provisions Act, 1952. He assails the legal validity of the said order in as much as the procedure followed and the manner in which the order has been passed, according to him, is neither the Scheme of the statute nor can be permitted in law. Learned Counsels appearing for the respondents have supported the impugned order submitting that after going through the evidences and other materials, the said order has been passed and there is no infirmity in the same. After hearing the rival contentions, this Court feels that the impugned order requires some interference. This view of the Court is 2 fortified from the order itself in which it is stated as under:- “ The present proceedings have been initiated under para 26B of EPF Scheme for resolution of membership issue. The perusal of office file reveals that the complainant is raising the issue for more than 08 years. The present proceedings itself, which have continued for more than two years, the complainant has, appears for more than 15 times. He might have appeared many more times, which have not been recorded by the office. In these circumstances, the undersigned feels that it will be a gross injustice to the complainant if the matter is again referred to other assessing officer for determination of dues U/s 7A of the Act, which may take another few years and may not be decided in the lifetime of the complainant. Hence, assessment of dues is made in the present order itself. Accordingly the compliance section was asked to calculate the dues payable by the establishment in different accounts for the claimant/member Sri Rajendra Prasad S/O Sri Bulkan Gope arithmetically. The Compliance Section provided the calculation sheet on 28.11.2007.” This Court, from the materials on the record, finds that the proceedings were indeed started as per para-26 B of the Employees Provident Fund Scheme, 1952 and the petitioner also contested the same by filing appropriate reply. However, instead of the authority passing the order under 26B of the Employees Provident Funds Scheme, 1952 for the purposes of determining the question as to whether an employee is entitled or required to become or continue as a member, he has gone further and has also passed an order under Scheme 7A of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952. The submission of the learned counsel for the petitioner is well placed to the extent that such a composite order is not contemplated under 3 the scheme of things. Section 7A(3) clearly states that no order shall be made under sub section (1) unless the employer concerned is given a reasonable opportunity of representing his case. In the present proceedings it is an admitted position that no separate notice was given before passing an order U/s 7A of the Act. On this limited ground, the order as far as it relates to determining of money due to the respondent no.3 from the petitioner cannot be sustained in law. Accordingly, the same is set aside. However the impugned order shall be effective and shall be considered to be a determination under Para 26B of the Employees Provident Fund Scheme, 1952.The respondent authorities may take further and consequential steps for determination U/S 7 A of the Employees Provident Fund’s Scheme, 1952 in accordance with law. Learned counsel for the respondent no.3 submits that he shall produce a copy of this order before the concerned authority, who should be directed by this Court to take necessary and appropriate action within a fixed time frame. This Court feels no difficulty in the same. Accordingly, it is directed that the petitioner shall within one month from today move before the concerned authority who upon receipt/production of a copy of this order shall proceed in the matter and pass necessary and final orders, as may be required within two months thereafter. It goes without saying that the concerned authority shall ensure that all the parties are given an opportunity of hearing before passing any final order. Since both the parties have appeared before this Court, it is hoped and expected that they shall cooperate in the proceedings. 4 With the aforesaid observations and directions, the writ petition stands disposed off. sudha ( Ahsanuddin Amanullah, J. )