1 WP 4536.03 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 4946 OF 2011 M/s Gautam Shahar Sahakari Bank Ltd., Gautamnagar Post Kolpewadi, Tq. Kopergaon, Dist. Ahmednagar 423602 through it’s Chief Officer ..PETITIONER VERSUS The Assistant Provident Fund Commissioner, SRO, Plot No. 11 Bhavishya Nidhi Bhavan, MIDC Satpur, Nashik 422 007 .. RESPONDENT ... Shri V.N. Upadhye, Advocate for petitioner Shri K.B. Choudhri, Standing Counsel for respondent CORAM :- S.V. GANGAPURWALA JJ. DATE:- 8th July, 2011. ORAL JUDGMENT: Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2. The present petitioner has filed an appeal before the Appellate Tribunal against the 2 WP 4536.03 order passed by the Assistant Provident Fund Commissioner thereby holding that the Act is applicable even in respect of the pigmy agents/pigmy deposit collectors under the provisions of the Employees Provident Funds Miscellaneous Provisions Act, 1952 (here-in-after called as the Act) 3. The appellate Tribunal directed the petitioner to deposit 30% of the amount as a pre condition for hearing the appeal as contemplated U/Sec. 7(O) of the Act. The petitioner has assailed the said order dated 31st May, 2011 thereby directing to deposit 30% of the amount as a pre condition. 4. Shri Upadhye, the learned counsel for the petitioner submits that in fact, the order impugned before the Tribunal is with regard to applicability of the provisions of the Act. The liability is not assessed. Only the tentative amount is arrived at by the authority and while passing the final order it is observed that the department may start another enquiry to determine 3 WP 4536.03 the amount due as liability. In such circumstances, when the amount itself is not assessed, there is no question of directing the petitioner to deposit the 30% of the amount. 5. Shri Choudhari, the learned counsel for the respondent submits that, the total outstanding of Rs.8,92,166/- has been assessed. The authority has come to the conclusion that the Act is applicable in respect of pigmy agents and pigmy deposit collectors also and the statement showing the dues is also culled out in the said order. The Tribunal has taken a liberal approach while directing the petitioner to deposit only 30% of the amount. 6. In fact, the proceedings which were undertaken was with regard to determination of the question as to whether said Act would be applicable to the pigmy agents/pigmy deposit collectors. The authority has come to the conclusion that the said Act is applicable to those pigmy agents/pigmy deposit collectors also. The authority has further observed that if there 4 WP 4536.03 is no stay or order of superior Court to the contrary, then the department may start another enquiry to determine the amount due as liability which itself shows that the liability with regard to quantum of the amount has not been fixed. When the quantum of the liability itself is not fixed, there is no question of directing the petitioner to pay 30% of the amount. 7. In the light of the above, the impugned order directing the petitioner to deposit 30% of the amount would be onerous and same deserves to be quashed and set aside. In the result, the impugned order dated 31st May, 2011 is quashed and set aside. The Rule is made absolute in terms of prayer clause “C”. No costs. [S.V. GANGAPURWALA, J ] SDM* July