1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH CIVIL APPLICATION NO. 3330 OF 2007 IN WRIT PETITION NO. 2534 OF 2005 M/s. Kiran Agencies, a proprietary firm through its proprietor Shri Girish s/o Gangadhar Agrawal. ... PETITIONER Versus The Assistant Provident Fund Commissioner & Ors. ... RESPONDENTS Shri A.M. Ghare, Advocate for the petitioner. Shri R.S. Sundaram, Advocate for the respondents. ..... CORAM : B.P. DHARMADHIKARI, J. DATE OF RESERVING THE ORDER : JUNE 12, 2008. DATE OF PRONOUNCING THE ORDER : JUNE 20, 2008. ORDER : By this application, the petitioner/ applicant is seeking modification of order dated 1.3.2007 and is also seeking grant of stay. By said order, while admitting writ petition for final hearing and expediting its hearing, I have refused to grant stay of 2 provident fund recovery by noticing nature of demand and also its impossibility in future. The modification is sought on the ground that the impugned order was passed in breach of principles of natural justice and the respondents did not consider that there were two separate establishments and there was no functional integrity. The prayer is, therefore, to stay the operation, effect and implementation of order dated 12.10.2001 and 30.03.2005 impugned in the petition and to direct the petitioner/ applicant to furnish solvent surety for the amount claimed on account of provident fund dues. The application was opposed by filing reply affidavit on 31.10.2007 by the respondent – department. In the said reply, in order to show that enquiry has been conducted in accordance with principles of natural justice, they relied upon report of Enforcement Officer dated 27.02.1997. There is some mistake about date of this report but the same has been corrected later on by filing separate affidavit and thus it became clear that there were total three reports looked into while passing impugned order. Those reports are dated 2.12.1996, 24.2.1997 and 15.3.2001. The applicant then came up with a 3 case that the applicant has not been served with copies of reports dated 2.12.1996 or 24.2.1997. The respondents filed affidavit and stated that copy of report dated 15.3.2001 has been served upon the petitioner on 7.8.2001 through its counsel and other reports were well within the knowledge of one Shri Deshpande, representative of applicant, who participated in enquiry. However, later on, it was found that Shri Deshpande was not the representative of the petitioner – applicant in said enquiry as he appeared for the first time on 14.2.2005. 2. In this background, Shri Ghare, Advocate for the petitioner – applicant has contended that it was never the case of the respondents that two units viz., Kiran Marketing (Pharmaceutical Products Division) and Kiran Marketing (Consumer Products Division), in fact constituted one unit. He contended that there was no such notice of clubbing two units and entire proceedings conducted are therefore vitiated. The petitioner is, therefore, entitled to grant of stay. 4 3. Shri Sundaram, Advocate for the respondents, on the other hand, pointed out that after this Court refused interim orders on 1.3.2007, the amount of provident fund dues has been quantified and the petitioner has filed appeal before the appellate forum under Section 7-I of the Employees Provident Fund and Miscellaneous Provisions Act. The appellate authority has granted stay in favour of the petitioner subject to its depositing 50% of the amount as claimed. He states that in view of these orders, prayer for modification has become infructuous. He further contends that though on account of non availability of entire records, some wrong dates were mentioned, still no prejudice whatsoever has been caused to the petitioner – applicant in enquiry under Section 7-A of the Provident Fund Act. He states that the petitioner was always aware of the nature and scope of enquiry and has filed appropriate replies. 4. Both the counsel have invited attention to relevant documents on record, in support of their contentions. 5 5. The reply of the petitioner dated 8.4.1996 at Annexure C and at Annexure D to Regional Provident Fund Commissioner expressly takes care of angle of clubbing of two units together. Not only this, in order filed as Annexure - A along with petition dated 15.10.2001 and impugned in writ petition, the Assistant Provident Fund Commissioner has in para 5 relied upon reports dated 2.12.1996, 24.2.1997 and 15.3.2001 respectively. The petition has been filed before this Court on 24.5.2005. It, therefore, cannot be said that the petitioner was not aware of these reports dated 2.12.1996 or 24.2.1997. The grievance about the non receipt of these reports ought to have been made in writ petition itself. The grievance is being made in additional affidavit filed by the petitioner on 28.1.2008 in para 2 by pointing out that if these two reports would have been factually received by the petitioner, the petitioner would have surely disputed correctness and legality of the same. 6. The perusal of the order dated 1.3.2007 reveals that as the amount sought to be recovered as a result of Section 7-A 6 Enquiry was of provident fund and as its recovery in future becomes impossible, this Court did not grant any interim order. These two reasons are not shown to be either incorrect or perverse. In fact, in application for review as filed, there is no such plea. The argument about clubbing of two different units without a previous notice has been developed after filing the application for modification. It is settled position that for the purpose of Section 7-A enquiry, the number of employees in the establishment assume importance. The petitioner was aware of this, therefore only they made effort vide Annexures – C and D to point out how their two establishments were distinct and separate. 7. In these circumstances, I find that no case for review is being made out. Civil Application for modification is, therefore, misconceived. The same is accordingly dismissed. However, without any order as to costs. JUDGE ******* *GS.