CAW/2151/2010 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.2151 OF 2010 IN WRIT PETITION NO.3346 OF 2009 General Mills India Pvt. Ltd. … Applicant V/s. Regional Provident Fund Commissioner & Ors. ... Respondents Mr.V.N. Tayade i/b Piyush Shah for Applicant Mr.N.G. Ghotekar for Respondent Nos.1, 2 & 3 CORAM: SMT.NISHITA MHATRE, J. DATED: OCTOBER 27, 2010 P.C.: 1. The civil application has been filed by the petitioner No.1 in the Writ Petition contending that despite several orders passed by this Court directing the Provident Fund authorities to consider the exemption application filed by it within a particular time, the respondents have failed to comply with the orders. The petition was admitted on 23.3.2009. Interim relief was granted since the petitioner No.1 had already deposited the entire amount demanded in the impugned orders with the Petitioner No.2 trust. A further order was passed on 24.6.2009 directing that no coercive steps be taken by the authorities against the respondents. Ad-interim relief in terms of prayer clause (d) was also granted. It appears that on 17.3.2009 an order was passed u/s 8F of the Employees Provident Fund and Miscellaneous Provisions Act by Respondent Nos.1, 2 and 3 as a result of which the bankers of Petitioner No.1 CAW/2151/2010 : 2 : remitted `14,98,000/- to Respondent Nos.1, 2 and 3 from the account of petitioner No.1. 2. Subsequently, on 13.11.2009, the Central Provident Fund Commissioner was directed by this Court to decide the application u/s 27A of the Employees Provident Fund Act within a period of 90 days failing which the respondents would be liable to deposit `14,98,000/- in the account of petitioner No.1 with the State Bank of India, Vikhroli branch. The time to decide the exemption application made u/s 27A was extended and on 15.2.2010, a final chance was given to the respondents to comply with the order directing them to decide the exemption application. The respondents were directed to convey to the petitioner their decision on the exemption application on or before 30.4.2010 failing which the aforesaid amount would have to be deposited in this Court as directed by the order of 13.11.2009 alongwith interest 10% p.a. from 17.3.2009 till the date of deposit. Despite this order having been passed, the respondents chose to ignore the order. The petitioners then moved the present civil application for a direction to Respondent Nos.1, 2 and 3 to refund the aforesaid sum to the State Bank of India. 3. On 17.9.2010, by my order I had directed the respondents to deposit the aforesaid sum, in this Court, together with interest as directed in the earlier orders. It appears that the amount has been deposited in this Court thereafter, together with interest @ 10% p.a. 4. Mr.Rele, appearing for the Applicant, prays that this amount be returned to the applicant as the exemption application is still pending. He draws my attention to a CAW/2151/2010 : 3 : circular issued by the Employees Provident Fund Organisation, Ministry of Labour, Government of India under which the provident fund commissioners in all zones were directed to treat cases where the exemption applications were pending for a long period to have been deemed to be granted exemption. He therefore submits that the aforesaid amount should be returned to the petitioners in compliance with the earlier orders passed by this Court. 5. Mr.Ghotekar, on the other hand, appearing for Respondent Nos.1,2 and 3 submits that the amount consists of the provident fund dues payable to the workmen and it would not be proper to refund the amount to the petitioners. He points out the judgment of the Himachal Pradesh High Court in the case of H.P. Agro Industries Corporation Limited vs. Regional Provident Fund Commissioner, FJR Vol.82 574 and more particularly the observations of the Court that merely because an exemption application has been preferred by the company and no order has been passed by the competent authority, the legal liability of payment of contribution under the Act from the date of coverage cannot be ignored. He points out that the Court has observed that the employer who is covered by the provisions of the Act is bound to comply with the provisions and cannot take shelter behind the fact that it has preferred an application seeking exemption from the operation of the Act. 6. In my opinion, this judgment will have no application to the facts of the present case. This is because there are orders of this Court directing that if the exemption application is not decided within a particular period, the amount of `14,98,000/- is to be refunded into the Applicant's account with the State Bank of India, Vikhroli branch. There is no dispute that the exemption application has not been decided as yet. CAW/2151/2010 : 4 : Mr.Ghotekar points out that the decision is not to be taken by respondent Nos.1, 2 and 3 for whom he appears but the other respondents. Nobody appears for those respondents. 7. In these circumstances, in my opinion, the following order would meet the ends of justice: i) The petitioner No.1 i.e. the applicant herein is entitled to withdraw the amount deposited by the respondent Nos.1, 2 and 3 pursuant to the orders of this Court i.e. `17,22,700/-. ii) The applicant shall furnish an affidavit of one of its Directors undertaking that the amount which is withdrawn from this Court will be returned to the Provident Fund authorities immediately in case the exemption application is decided against the Applicant. iii) The amount deposited in this Court shall not be disbursed to the applicant without the undertaking being furnished to this Court. 7. Mr.Rele points out that though the respondent Nos.1, 2 and 3 claim to have withdrawn the order passed u/s 8F of the EPF Act, no communication has been received by the Bank. He points out the letter dated 15.9.2009 written by the bank to the provident fund commissioner seeking a clarification as to whether the letter dated 1.4.2009 was in fact issued by the provident fund commissioner. CAW/2151/2010 : 5 : 8. A statement has been made in para 12 of the affidavit in reply filed by Respondent Nos.1, 2 and 3 indicating that they had indeed sent a letter dated 1.4.2009 to the State Bank of India regarding the withdrawal of the order passed u/s 8F. It has also been averred that the State Bank has confirmed the receipt of the order on 13.4.2009. In view of these averments, it is but obvious that the order passed u/s 8F has been withdrawn by Respondent Nos.1, 2 and 3. 9. Civil application is disposed of accordingly.