WP/6423/1998 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6423 OF 1998 Nasik Screw Indusries & anr. ... Petitioners V/s. Regional Provident Fund Commissioner, Maharashtra & Goa & anr. ... Respondents Mr.J.M. D'silva for Petitioners Mr.Suresh Kumar for Respondents CORAM: SMT.NISHITA MHATRE, J. DATED: SEPTEMBER 28, 2010 ORAL JUDGMENT: 1. The petition seeks to challenge the order passed by the Regional Provident Fund Commissioner u/s 7A of the Employees Provident Fund and Miscellaneous Provisions Act on 21.9.1987 as well as the order dated 4.10.1995. 2. Petitioner No.1 is a registered firm whereas Petitioner No.2 is a company registered under the Companies Act. Respondent No.1 issued a notice u/s 7A of the Act on 17.9.1985 requiring the petitioners to attend the enquiry being held in respect of payment of provident fund dues. Petitioner No.1 replied to this notice. A second notice u/s 7A was issued on 3.3..1986 in respect of different periods. This notice was also replied by the petitioner No.2. 3. Objections were raised by the petitioner No.1 for clubbing it with petitioner No. WP/6423/1998 : 2 : 2. According to the petitioners, they were separate undertakings, having separate registrations with no commonality of workmen or the products being manufactured. 4. The Regional Provident Fund Commissioner by its impugned order dated 21.9.1987 concluded that the provident fund inspector in his report had indicated that the supervision and control of both petitioner Nos.1 and 2 were in the hands of partner of Petitioner No.1 who was a Director of Petitioner No.2. The impugned order also reflects that the clerical staff in the two concerns are common and there is financial integrality between the establishments. Both the establishments are situated in a common industrial building which has a common entrance and common security for the establishment. On this basis, the Commissioner concluded that the petitioners are liable to pay an amount of Rs.1,46,501/- as provident fund dues for the period from August, 1977 to July 1985. 5. Although an appeal against this order was not maintainable under the Act when the order was passed, the petitioners preferred an appeal before the Commissioner who has rejected the appeal. It has been held that there was no provision for review or appeal against the order passed u/s 7A of the Act. 6. I have heard the learned Counsel for the parties. The impugned order indicates that an inspection report was prepared based on which the order has been passed. According to the learned advocate for the petitioners, the inspection report was not furnished to the petitioners. He has also contended that the order passed u/s 7A is contrary to the material on record. According to him, the workmen employed in the two concerns are different. There is no functional and financial integrality WP/6423/1998 : 3 : between the two concerns. According to him, the manufacturing activities of both the concerns are not related to each other. He points out that the Petitioner No.2 manufactures automobile and moped parts whereas the Petitioner No.1 manufactures hardware items and other accessories. He also points out that the Income Tax returns of both the petitioners are separately filed and the ESI code numbers are different for both Petitioners. According to the learned advocate, therefore, the impugned order clubbing the two concerns together u/s 7A of the Act is illegal. 7. In my opinion, the submission of the learned advocate for the petitioner must be accepted. This is because the inspection report on which the authority passing an order u/s 7A has relied was not furnished to the petitioners. In these circumstances, in my opinion, it would be appropriate therefore to remand the matter to the provident fund authorities for a fresh decision u/s 7A of the Act. 8. Mr.Suresh Kumar, appearing for the respondents, submits that there has been a delay in filing the writ petition. The impugned order is passed in 1987 whereas the writ petition was filed in 1998. In my opinion, this submission cannot be accepted at this stage when the petition has been admitted and is pending a decision from 1998. This contention ought to have been raised by the respondents when the petition was admitted. Not having done so, they cannot now raise the issue. 9. Mr.Suresh Kumar candidly concedes that the inspection report was not furnished to the petitioners. Therefore, in my view, the impugned order which is based on the inspection report cannot be sustained. WP/6423/1998 : 4 : 10. Accordingly, the petition is allowed. The impugned order is set aside. The proceedings u/s 7A are remanded to provident fund authorities who will hear and decide the same in accordance with law. 11. The deposit which was directed to be made at the time when the petition was admitted would be subject to the result of the proceedings on remand. 12. Rule made absolute accordingly. No costs. 13. In view of the Petition being disposed of, nothing survives in Civil application No.1208 of 2010 and the same is disposed of accordingly.