*1* wp902-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.902 OF 2011 Arun Vasant Wagle .. Petitioner Versus Regional Provident Fund Maharashtra & Goa & Anr. .. Respondents Dr.Pallavi Divekar for petitioner Mrs.S.V.Bharucha for respondent No.1. CORAM : S.C.DHARMADHIKARI, J. Date : 19th September, 2011. P.C.: 1 This petition was placed before me for admission on 29th August 2011. A detailed order has been passed noting the controversy and referring to the contentions raised in the petition. 2] In para 2 of my order, I had directed the respondents to file an affidavit explaining therein as to how an order under section 7A of the Employees' Provident Fund Act (EP Act) came to be passed, despite the facts which have been noted by me. The affidavit was directed to be filed because it was the specific complaint of Mrs.Desai that the Assistant P.F.Commissioner has failed to take into account the report of the Enforcement Officer, Circle V. In these circumstances, what records were before the Assistant P.F.Commissioner when he made the subject order was an aspect on which this Court must be satisfied by filing an affidavit and producing the records. *2* wp902-11.sxw 3] Today when the matter is called out, it is fairly stated that no affidavit has been filed. Learned Counsel appearing for petitioner, therefore, submits that the petition be allowed inasmuch as none of the statements in the petition have been controverted. The authorities have failed to apply their mind that the establishment has not engaged any employees and have closed down the business and, therefore, once this aspect was notified to the bank as also there is an endorsement of the Enforcement Officer, assessment under section 7A of the EP Act was wholly uncalled for and illegal. 4] Ms.Bharucha learned Counsel appearing for respondent No.1 submits that she has received instructions from the Assistant P.F.Commissioner (Legal) in writing stating that the said authorities are ready and willing to re-examine the issue and this Court, therefore, may permit the said authorities to reconsider and review the matter afresh. 5] The learned Counsel appearing for petitioner submits that the petitioner should not be made to go through the entire proceedings once again by appearing before the Assistant P.F.Commissioner and facing enquiry under section 7A of the E.P.Act, when the averments in the petition have never been controverted. In such circumstances, no useful purpose will be served by giving any opportunity to the authorities but the impugned order must be set aside. 6] In the light of the written instructions that have been received by learned Counsel for respondents, I have no doubt in my mind that the Assistant P.F.Commissioner has not applied his mind while passing the order of remand under section 7A of the EP Act. He has also failed to take *3* wp902-11.sxw into consideration the documents that have been produced by the petitioner, including the endorsement of the Enforcement Officer. It is clear that not once but twice this Assistant P.F.Commissioner had an opportunity to review the matter and pass a fresh order. That has admittedly not been done and it was maintained through out that there is no error in the orders that have been passed. That stand was also taken before the Appellate Tribunal. However, after having heard the learned Counsel for parties at great length on the earlier occasion and in the light of my detailed order so also the written communication that has been produced by Ms.Bharucha, it is very clear that the impugned order cannot be sustained and the orders of the Assistant P.F.Commissioner which have been impugned in this petition and specifically dated 17th August 2006 and that of the Appellate Authority dated 20th October 2010, Annexures K, N and Q are all quashed and set aside. It is very clear that there is no warrant in passing an order of remand or remitting back the same to the authority for reconsideration. If that authority possesses any such powers, it would be open for it to take up assessment proceedings de novo against the petitioner and the establishment. If they do not have any such powers, this Court cannot by giving opportunity confer such powers. That would be passing an order contrary to the statute which is impermissible even in writ jurisdiction. The petition is therefore, allowed and the impugned orders are quashed and set aside. No costs. (S.C. Dharmadhikari, J)