WP2682-10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2682 OF 2010 M/s.NIBS India .. Petitioner Versus O.P.Malhotra, Assistant Provident Fund Commissioner & Ors .. Respondents Mr.R.S.Pai i/by S.Udeshi & Co for the petitioner. Mrs.S.V.Bharucha for respondent Nos.1 and 2. CORAM : S.C.DHARMADHIKARI, J. DATE : 19th January 2011. P.C.: . Rule. Respondent Nos.1 and 2 waive service. Respondent No.3 is a formal party. By consent Rule made returnable forthwith. The petitioner is the appellant before the Employees’ Provident Fund Appellate Tribunal, New Delhi before whom an appeal was filed challenging the order passed by the Provident Fund Authorities under section 7A of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 (for short “the Act”). 2 By the order impugned in this petition and delivered on 15th July 2010, the learned Presiding Officer of the Appellate Tribunal has dismissed the WP2682-10 2 petitioner-appellant’s appeal. 3 The contention raised before the Tribunal was that the petitioner is a firm registered under the Indian Partnership Act, 1932. While it is true that the establishment was covered by the Act and it was making a contribution but it was closed up in 1998. The closure was because of the fact that all workers working in the said establishment had accepted voluntary retirement in pursuance to a scheme in that behalf. The Provident Fund Authorities have not correctly appreciated the effect of such voluntary retirement of all workers and consequent closure of the business operations. 4 Despite the closure and on account of voluntary retirement the authorities have called upon the petitioner-appellant to pay the amounts in terms of the scheme framed under the said Act. Therefore, the said appeal was preferred which has been dismissed. 5 The only reasoning that is found in the impugned order in paragraph 6 wherein it is observed that the petitioner-appellant has not produced any document to show that the establishment was already closed and as per the averment the employees have taken voluntary retirement only in the year 1998. WP2682-10 3 6 Shri Pai appearing on behalf of the petitioner-appellant submitted that the documents were indeed produced. The petitioner-appellant had pointed out that there was an order dated 11th February 1998 passed by the Industrial Court holding that the workmen were not entitled for wages from March 1997 in view of their continuance of their illegal strike and therefore the claim of contribution under section 7A of the Act for the period that is post March 1997 was illegal. Further, contributions were liable to be deducted only from the wages paid or payable to the workmen. The workmen were not entitled for any wages from March 1997 as per this order passed by the Industrial Court in Complaint (ULP) No.284 of 1997. Therefore, the claim could not have been granted. 7 Further, Shri Pai points out that all workmen accepted voluntary retirement from June/September 1998 and since they were on illegal strike and there was no question of paying any wages or contributions in that behalf, the order was ex-facie illegal. The Appellate Authority failed to consider all this and also the fact that the application dated 15th May 2001 submitted by the petitioner-appellant to the 1st respondent specifically sets out the details and particulars because a reading of paragraph 6 of the impugned order would WP2682-10 4 indicate that the Appellate Authority has failed to apply its mind to any of these contentions. He had before him all documents including the application of the petitioner-appellant. The particulars were also on record and if there was any deficiency, the Appellate Authority could have called upon the petitioner- appellant to produce the same. This having not being done, the impugned order is ex-facie erroneous and unsustainable. 8 Quite a few decades back the Hon’ble Supreme Court has impressed upon the quasi-judicial and Appellate Authorities in particular, an importance of appeal. In the case of Patesinghrao Anandrao Naik & Ors Vs. R.V.Deshmukh, Joint Director and Joint Registrar Co-operative Societies & Ors reported in 1981 Maharashtra Law Journal 936 in so far as the duty of the Appellate Court this is what is observed: “As observed in Pandit Bhullan’s case an appeal is a creature of statute. Further there is a vast difference between the revisional powers and the appellate powers. An appeal, as stated by Lord Davery in Pannamma v. Arumoosa is a proceeding in which a question is whether the order of the Court from which the appeal is brought was right on the materials which the Court had before it. In Legal Parlance WP2682-10 5 appeal means judicial examination of the decision by the higher Court of an inferior Court. It amounts to, in essence and pith, a complaint to higher forum that the decision of the sub-ordinate tribunal is erroneous and therefore liable to be rectified or set aside. From this it would follow that an appellate Court has power to go not only into the question of law, but also into questions of fact. Such a power would further enable the appellate Court to review or reassess the entire evidence and come to its own conclusion. Litigant is entitled to a full, fair and independent consideration of evidence and the material at the appellate stage. Under section 152 of the Act, right of appeal is provided in very wide and general terms. The appellate authority has to decide the appeal as a quasi-judicial authority. To say the least the appellate authority cannot act mechanically as a mere rubber stamp. ....” 9 An appeal is, therefore, not a proceeding which can be disposed of lightly or casually. The Appellate Court is bound to consider all aspects of the matter on facts and as well as in law. If the duty of the Appellate Authority was set out in the aforementioned decision, the impugned order cannot be sustained and is accordingly quashed and set aside. The writ petition succeeds WP2682-10 6 accordingly. The appeal is restored to the file of the Appellate Tribunal for disposal afresh on merits and in accordance with law but without being influenced by any of the findings and conclusions in the earlier order. It is clarified that this Court has not expressed any opinion on the merits of the case and all pleas of the parties are kept open. 10 Since the matter is fairly old, the Appellate Authority should endeavour and dispose off the appeal as expeditiously as possible and within a period of three months from the date of receipt of copy of this order. 11 Till the appeal is disposed off no coercive measures should be initiated for recovery particularly because the petitioner-appellant have shown their bonafides and deposited a sum of Rs.2,25,603/- with the Authority. 12 Rule made absolute in the above terms. No costs. (S.C.DHARMADHIKARI, J)