1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi WRIT PETITION NO. 1316 OF 2009 . Nowrosjee Wadia Maternity Hospital & Anr. ..Petitioners. vs. K.S. Arya & Ors. ..Respondents. .... Mrs. Meena H. Doshi, for Petitioners. Mr. Suresh Kumar, a/w. Ms. Suchitra Kamble, for Respondent No.2. .... CORAM : S.J.KATHAWALLA, J. DATE : 29TH AUGUST 2009. P.C. In an earlier writ petition being no.91 of 2006, the petitioners had called in question the order dated 20 th May 2005, passed by the Assistant Provident Fund Commissioner rejecting the contentions of the petitioners and holding that the establishments of the petitioners are governed by the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (the said Act) and the scheme framed thereunder. It was held that while it was open to the petitioners to submit an application for exemption under paragraph 39 of the Employees Pension Scheme of 1995, no such scheme was submitted. A preliminary observation was also made that the pension 2 scheme of the petitioners is not more favourable then the Employees’ Pension Scheme, 1995. The said writ petition was disposed of by an order of this court dated 18 th January 2007. Paragraph 11 of the said order reads thus :- “11. In these circumstances, the appropriate direction to issue in the present proceedings would be to call upon the competent authorities under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 to initially decide upon the validity of the claim of the petitioners to the benefit of the notification dated 19 th March 1993. In order to facilitate this exercise, the petitioners shall file all such material as they seek to reply upon within a period of four weeks from today. The competent authority shall thereupon decide the question of exemption with reference to the provisions of section 16 within a period of two months of the submission of the application. In the event that the authority comes to the conclusion that the petitioners 3 are not entitled to the exemption from the provisions of the Act, the authority shall then proceed to consider the claim for exemption from the Employees’ Pension Scheme 1995 in terms of the provisions of paragraph 39. The aforesaid exercise shall be completed within a period of six months. The decision on the aforesaid issue shall be taken without having regard to the findings contained in the impugned order dated 20 th May 2005 (Exh.D). In order to facilitate a fresh decision the impugned order is quashed and set aside without the expression of any opinion by the Court on the merits of the rival contentions of the parties. The petition is accordingly disposed of.” The petitioners by their letter dated 29 th January 2007 addressed to the Regional Provident Fund Commissioner, Mumbai after referring to the High Court order in writ petition no.91 of 2006 requested issuing of necessary application form for claiming exemption under section 16(2) of the said Act. 4 2. Thereafter, the petitioner made an application dated 8 th February 2007 to the Regional Provident Fund Commissioner on the ground that the petitioners “are eligible to receive an exemption under section 17(2) of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952.” 3. The aforesaid application dated 8 th February 2007 filed by the petitioner was disposed of by an order dated 4 th June 2007 passed by the Regional Provident Fund Commissioner, D.R.O., Mumbai, wherein it is inter-alia ordered/directed as under :- “On going through the said notification as mentioned above, issued by Government of India u/s. 16(2), it is seen that your establishment does not come under the purview of the said notification. Your establishment is not registered under Societies Registration Act, 1860 and therefore notification no. S.O 1975 dated 25.06.91 is not applicable to the establishment. Notification dated 1993 is also not applicable to the establishment as establishment is not an education Institution. It is 5 covered under schedule head Hospital. On going through the Trust Deed and Form 9A submitted by the establishment under EFPS 1971 it is clear the establishment is engaged in the activity of running Hospital. I further please refer to your letter dated 29 th January 2007 in which you have requested to provide necessary application for claiming exemption under section 16(2) of Employees’ Provident Fund 1952. Your establishment under this section, however, as per Court order you have to apply for grant of exemption under paragraph 39 of the Employees Pension Scheme. You are now requested to submit the pension rules duly updated alongwith the Annexure ‘A’ to ‘F’ and comparison benefit within 15 days from the date of receipt of this letter. Please note that pension contribution are required to be paid by the employers 6 and the same should not be deducted from employees of the establishment from their salary/wages.” 4. The petitioners despite the aforesaid order dated 8 th February 2007, by their letter dated 18 th June 2007 addressed to the Regional Provident Fund Commissioner (1), Regional Office, Mumbai, inter-alia submitted as under :- “In our letter we have submitted detailed information of the manner in which the pension scheme of the hospital is more beneficial to the employees than EPS Scheme, 1995. We submit that our letter of 8.2.2007 is in accordance with the order of Hon’ble High Court and submit to you that the same may be considered under the provisions of the Act as a whole and not merely a part thereof. We look forward to your kind and favourable reply to our application in the larger interest of the employees.”. 7 No reply was sent to the petitioners’ letter dated 18 th June 2007 by the Regional Provident Fund Commissioner (1). The petitioner did not take any steps thereafter. 5. The petitioners were issued show cause notices dated 2 nd April 2009 by respondent no.2 enumerating breaches of the Act/ Scheme. The show cause notices are responded to by the petitioners. The petitioners have also sought time to further deal with the show cause notices, issued by respondent no.2. 6. The petitioners have now after about two years, by the present writ petition, impugned the order passed by the respondent no. 1 dated 4 th June 2007. The show cause notices dated 2 nd April 2009 issued by the respondent no.2 are also challenged. After receipt of the order dated 4 th June 2007 passed by the Regional Provident Fund Commissioner (1) the petitioners chose not to impugn the order in any Court of law but by their letter dated 18 th June 2007, inter-alia asked the respondent no.1 to consider the petitioners’ letter / application dated 8 th February 2007 under the provisions of the Act as a whole and not merely a part thereof. Though the respondent no.1 did not 8 respond to the said letter in the last more than 2 years, the petitioners again chose not to take any action to impugn the said order dated 4 th June 2007. It is only when the show cause notices were issued to the petitioners by the respondent no.2 dated 2 nd April 2009 that the petitioners approached this Court by way of present petition, impugning the order dated 4 th June 2007, on grounds which are not even mentioned in their letter dated 18 th June 2007. 7. In view thereof, no interference under Article 226 is called for as regards the order passed by the respondent no.1 dated 4 th June 2007. Any interference at this stage as regards the show cause notices issued is also uncalled for and the petitioners will have to reply to the show cause notices. In fact, the petitioners have partly responded to the show cause notices and have sought time from respondent no.2 to submit further documents. It is submitted on behalf of the petitioners that the respondents cannot proceed with the show cause notices and the show cause notices cannot be issued until the issue of paragraph 39 of the scheme is decided by respondent no. 2. All the submissions of the petitioners including the said 9 submission in response to the show cause notice would be considered by the respondent no.2 on its own merits. It is also submitted on behalf of the petitioners that after filing of the present writ petition, an application under section 16(2) has been filed by the petitioners with the Secretary, Ministry of Labour and Employment, under section 16(2), which is pending consideration. Needless to add that the said application will be decided on its own merits including the issue pertaining to the maintainability of the said application. 8. The writ petition is, therefore, dismissed with no order as to costs. [ S.J.KATHAWALLA, J. ]