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SCA/6634/2010 1/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6634 of 2010
=========================================================
COMOS
COOPERATIVE BANK LTD - Petitioner(s)
Versus
EPLOYEES
PROVIDENT FUND-APPELLATE TRIBUNAL & 2 - Respondent(s)
=========================================================
Appearance
:
MR
GM JOSHI for
Petitioner
MR DAXESH T DAVE for
Respondents
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 14/09/2010
ORAL
ORDER
By
way of this petition under Article 226 of the Constitution of India,
the petitioner Cosmos cooperative Bank Limited, successor of
Unati Cooperative bank Limited, has prayed for appropriate writ,
order and/or direction, quashing and setting aside
the impugned judgement and order dtd.16/4/2010 passed by the
Employees Provident Fund Appellate Tribunal in Appeal No.227 of 2004
whereby the appellate tribunal has confirmed the order dtd.7/10/2003
passed under sec.14(B) of the Employees Provident Fund and
Miscellaneous Provisions Act ( the Act ).
Mr.G.M.
Joshi, learned
advocate appearing on behalf of the petitioner has
vehemently submitted that the impugned order passed by the appellate
tribunal is on the wrong factual premise. He has submitted that
though the controlling authority has passed an order to levy penalty
and damage for the period during pre-discovery also, the appellate
tribunal has observed that order of authority reveals that no
penalty and damage was imposed relating to default during
pre-discovery period. He has submitted that in fact, the
appropriate authority has passed order under sec.14(B) of the Act
imposing penalty and damage relating to default during
pre-discovery period also. Number of other submissions have been
made by Mr.Joshi, learned
advocate appearing on behalf of the petitioner.
Mr.Dave,
learned
advocate appearing on behalf of the respondents has
also tried to make submissions on merits. However, he is not in a
position to dispute the aforesaid and the fact that the
appropriate authority has also passed imposing penalty and damage
relating to default during pre-discovery period.
Under
the circumstances it appears that the appellate authority has passed
the order on wrong factual premise. Therefore, without further
entering into the merits of the case, the impugned impugned
judgement and order dtd.16/4/2010 passed by the appellate tribunal
in Appeal No.227 of 2004 deserves to be quashed and the matter
deserves to be remanded to the appellate authority for deciding the
same afresh in accordance with law and on merits.
In
view of the above, without expressing any opinion on merits in
favour of either parties, present petition is partly allowed and the
impugned judgement and order dtd.16/4/2010 passed by the Employees
Provident Fund Appellate Tribunal in Appeal No.227 of 2004 is hereby
quashed and set aside and the matter is remanded to the appellate
tribunal for deciding the appeal afresh in accordance with law and
on merits. However, it is made clear that all the questions,
inclusive the question as to whether for default during
pre-discovery period penalty and damage under sec.14(B) of the Act
can be imposed or not, are kept open and for which this Court has
not expressed any opinion on merits in favour of either of the
parties and it is for the appellate tribunal to decide the appeal
afresh on remand as aforesaid. Rule is made absolute to the
aforesaid extent. The appellate tribunal to decide the appeal on
remand at the earliest but not later than six months from the date
of receipt of writ of this order and until then, without prejudice
to the rights and contention of the respective parties to the
appeal, the ad-interim relief granted earlier by this Court is
directed to be continued till final disposal of the appeal on remand
by the appellate tribunal. In
the facts and circumstances of the case, there shall be no order as
to costs.
[M.R.
SHAH, J.]
rafik
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