1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1088 OF 2010 (Assistant Provident Fund Commissioner vs. Shivshakti Press Pvt. Ltd.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. OCTOBER 04, 2010. Shri Sundaram, learned counsel for the petitioner has contended that the Unit of the respondent at Nagpur was started in 1963 while its unit at Jhansi is functioning since 1962. After infancy period, in 1968, the number of employees in both the units were clubbed together and unit was found covered under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act). The employer made grievance that employees working at Jhansi would find it difficult to enjoy benefits of Provident Fund from Nagpur and only for their benefit, separate Code Number in relation to Jhansi establishment came to be allotted. He has invited attention of this Court to the correspondence to urge that always Jhansi and Nagpur Units were treated as single establishment. In this background, the attention is also invited to the order passed after Section 7-A Enquiry to show that same finding is reached there. The appellate authority viz., Employees Provident Fund 2 Appellate Tribunal (EPFAT) has ignored this position and has labelled the attempt of the petitioner to recover the deduction at 10% as an attempt to club two otherwise separate establishments together. He has urged that from June 1989, the deduction in case of number of employees exceeding 50 are contemplated at 10% and as respondent was contributing only 8.33%, show cause notice was issued and the proceedings started. He has invited attention to the fact that Employees Provident Fund Appellate Tribunal has not recorded any finding in relation to correspondence which shows that only for administrative convenience, unit at Jhansi was given a separate Code number locally. Shri Puranik, learned counsel for the respondent on the other hand has invited attention to show cause notice on the basis of which enquiry under Section 7-A of the Act was undertaken and an order passed by the Regional Provident Fund Commissioner on 02.02.2000 to urge that the authority had undertaken proceedings to club two separate units together and the proceedings were also defended by the respondent accordingly. He has urged that the correspondence shown to this Court do not form part of Section 7-A enquiry and EPFAT has not looked into it. Shri Sundaram, learned counsel has contended that correspondence produced before this Court was very much forming part of Section 7-A Enquiry. 3 I have perused show cause notice as also the order dated 02.02.2000 passed by the Regional Provident Fund Commissioner. The documents give an impression that effort was then on to club otherwise two separate units into one. It appears that if two units were clubbed together, number of employees exceed 50 and hence employer was obliged to deduct contribution at 10%. However, the correspondence to which Shri Sundaram, learned counsel has invited attention also reveals that initially in 1969 when coverage was done for the first time, the unit at Jhansi and Nagpur were considered as forming a single establishment. However, I find it difficult to conclude this aspect finally at this stage because the respondent – employer did not get proper opportunity to meet this challenge and to point out otherwise. In this situation, as the issue pertains to Provident Fund dues of employees, I find it proper to permit the petitioner to issue fresh and proper show cause notice and to undertake fresh enquiry under Section 7-A of the Act. It is made clear that the impugned order passed by the appellate authority shall not come in the way of the petitioner in undertaking such fresh enquiry and only for that purpose said order is quashed and set aside. It is also made clear that the order dated 09.02.2001 passed by the petitioner under Section 7-A of the Act shall also not influence the petitioner while 4 undertaking such fresh enquiry and only for that purpose said order is quashed and set aside. The petitioner shall serve a show cause notice upon the respondent as early as possible and in any case within a period of six weeks from today and give full opportunity to the respondent to defend itself in the matter. The appropriate final orders thereafter shall be passed in accordance with law as early as possible and in any case within a further period of four months. Rule is made absolute accordingly. There shall be no order as to costs. JUDGE *GS.