M/S Delight Bakery and 2 Ors. Vs the Union of India and 5 Ors.

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GAHC010203622016

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/2516/2016

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M/S DELIGHT BAKERY and 2 ORS

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MAIN ROAD, TEZPUR, DIST.- SONITPUR, PIN- 784001, REP. BY ITS PARTNER SHRI JAYANTA BARMAN.

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2: PRADIP KUMAR BARMAN

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3: JAYANTA BARMAN BOTH PARTNERS OF M/S DELIGHT BAKERY MAIN ROAD TEZPUR DIST.- SONITPUR ASSAM PIN- 784001

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VERSUS

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THE UNION OF INDIA and 5 ORS

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REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF LABOUR, SHRAM BHAWAN, NEW DELHI- 1.

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2:EMPLOYEES PROVIDENT FUND ORGANISATION MINISTRY OF LABOUR GOVT. OF INDIA N.E. REGION BHANGAGARH GHY- 5 REP. BY ITS REGIONAL PROVIDENT FUND COMMISSIONER.

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3:THE RECOVERY OFFICER EMPLOYEES PROVIDENT FUND ORGANISATION MINISTRY OF LABOUR GOVT. OF INDIA N.E. REGION

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BHANGAGARH GHY- 5.

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4:ENFORCEMENT OFFICER EMPLOYEES PROVIDENT FUND ORGANISATION MINISTRY OF LABOUR and EMPLOYMENT GOVT. OF INDIA N.E. REGION GHY- 5. 5:PUNJAB NATIONAL BANK TEZPUR BRANCH ASSAM REP. BY ITS BRANCH MANAGER PIN- 784001. 6:UITED BANK OF INDIA TEZPUR BRANCH TEZPUR ASSAM REP. BY ITS BRANCH MANAGER PIN- 784001

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B E F O R E

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HON’BLE MR. JUSTICE DEVASHIS BARUAH

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Advocates for the petitioner(s) :Mr. S Chakraborty

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Advocates for the respondent(s) : Mr. H Gupta, CGC

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Date of hearing & judgment : 18.09.2025

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JUDGMENT & ORDER(ORAL)

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Heard Mr. S Chakraborty, the learned counsel appearing on behalf of the petitioners. Mr. H Gupta, the learned CGC, who appears on behalf of the respondent Nos.1 to 4. Mr. S Dutta, the learned Senior Counsel, assisted by Mr.

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S Dutta, the learned counsel, who appears on behalf of the respondent No.6.

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The petitioners herein have approached this Court challenging the order dated 29.02.2016 passed by the Regional Provident Fund Commissioner as well as the Certificate Case No.3/2008-09 issued thereupon. It is relevant to take note of that the petitioner No.1 herein is an unregistered partnership firm and the petitioner Nos.2 and 3 are partners. They are engaged in the business of manufacture and sale of confectionary items.

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The case of the petitioners herein is that the provisions of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (for short, the Act of 1952) cannot be made applicable insofar as the petitioner No.1 is concerned and as such, the order dated 29.02.2016 passed by the Regional Provident Fund Commissioner -I has been put to challenge. The materials on record further show that the respondent No.2 herein passed an ex-parte order on 01.08.2007 by making an adjudication in terms with Section 7A(I) of the Act of 1952. The petitioners against whom the order dated 01.08.2007 was passed ex-parte filed an application in terms with Section 7A(4) of the Act of 1952. The said application, however, was not taken into consideration and as such the petitioner approached this Court by filing a writ petition being WP(C)No.309/2010, challenging the inaction on the part of the respondent No. 2, not to consider the application filed by the petitioner under Section 7A(4) of the Act of 1952. This Court vide an order dated 04.09.2014 directed the Regional Provident Fund Commissioner i.e. the respondent No.2 to reconsider the matter in the light of the application filed by the petitioner under Section 7A(4) of the Act of 1952 and preferably within a period of 3(three) months. The respondent No.2 thereupon accepted the said application and decided the issue on merits by passing the impugned order dated 29.02.2016, thereby

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adjudicating within the ambit of Section 7A(I) of the Act of 1952. Being aggrieved, the petitioner thereupon approached this Court by filing the present writ petition.

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This Court vide order dated 25.04.2016, issued notice and further stayed the impugned order dated 29.02.2016.

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This Court has heard the learned counsels appearing on behalf of the parties. The learned counsel appearing on behalf of the petitioners submits that the findings of facts arrived at in the impugned order dated 29.02.2016 are arrived at without taking into consideration the facts of the case.

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Per contra, Mr. H Gupta, the learned CGC appearing on behalf of the respondent Nos.1 to 4 submits that clubbing the various establishments of the petitioner No.1 is permissible in terms with the Act of 1952.

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This Court having heard the learned counsels appearing on behalf of the parties finds it pertinent to observe that there would be a requirement for adjudication on the facts as to whether upon clubbing of the establishments, which is, otherwise, permissible in terms with the Act of 1952, the petitioner No.1 had employed the number of persons to come within the ambit of the Act of 1952.

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This Court at this stage finds it pertinent to take note of the provisions of Section 7 I of the Act of 1952 which provides an appellate forum against any order passed under Section 7A(I) of the Act of 1952. It is the further opinion of this Court that the adjudication which can be done in the present proceedings is limited, taking into account that this Court would be only exercising a certiorari jurisdiction. However, when there is an appellate forum, the said forum can decide factual disputes, more so, when the issue involved in the present

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proceedings is on the pure question of facts.

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Considering the above, this Court, therefore, is of the opinion that the instant writ petition though have been filed in the year 2016 and pending till date, ought not to be entertained, more so, when the learned counsel for the petitioner had also submitted that the petitioners would be prejudiced, if an opportunity is not given to the petitioners to avail the remedy under Section 7 (I) of the Act of 1952.

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Accordingly this Court, therefore, is not inclined to entertain the instant writ petition, for which, the writ petition stands dismissed.

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This Court, however, grants the liberty to the petitioners to approach the appellate forum as mandated in Section 7 (I) of the Act of 1952 and taking into account that the petitioner has been diligently pursuing the present litigation, this Court grants 30(thirty) days time from today to the petitioners to prefer the appeal. It is further observed that if the petitioners prefer the appeal within a period of 30 days from today, the appellate authority shall not insist on the question of limitation, but rather decide the dispute on merits.

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Accordingly, the writ petition stands disposed of.

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JUDGE

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Comparing Assistant

M/S Delight Bakery and 2 Ors. v. the Union of India and 5 Ors.

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