Jayant Patel, J.
1. Rule. Mr.Mehta waives service of rule on behalf of respondent. With the consent of learned counsel for the parties matter is taken up for final hearing today.
2. The present petition is preferred by the petitioner challenging the legality and validity of the warrant issued by the PF authorities dated 30.10.03 for recovery of amount as per order dated 24.9.00 passed under section 7A of Employees Provident Fund and Misc.Provisions Act, 1952 (hereinafter referred to as 'the Act').
3. Heard Ms.Nanavaty for the petitioner and Mr. Mehta for the respondent.
4. It has been submitted on behalf of the petitioner that the appeal against the order under section 7A dated 2.4.91 is preferred before the Appellate Tribunal under Act and the application for waiver of condition of the pre-deposit of 75% was made and below the said application the presiding officer of the tribunal had passed order, dated 26.6.03 whereby the appellant was directed to deposit amount of 40%. Ms. Nanavaty has submitted that the amount of 40% is already deposited and the said amount comes to Rs.5,29,792/- and as such the said amount is more than 40% of Rs.11,17,950/- against which the appeal is preferred. She, therefore, submitted that the authority is not justified in issuing warrant. In CA No. 920/04 it has been further contended that the bank account is freezed by the PF authority and as a result thereof the petitioner is unable to operate the bank account. She also submitted that the petitioner is a charitable hospital giving treatment to TB patients and therefore if the bank account is not ordered to be operated it would paralyse the administration of the hospital and therefore matter may be considered for such purpose.
5. On behalf of respondent-PF authority Mr. Mehta submitted that the respondent has filed affidavit in reply stating that in addition to the order which is appealed against, there is subsequent order also dated 21.11.2003 under section 7A of the Act for the period from 12/2000 to 2/2002 whereby the amount ordered to be paid is of Rs.4,26,130/and therefore it has been submitted that the amount which is deposited by the petitioner is less amount and the petitioner should be directed to deposit more amount.
6. So far as the subject matter of the present petition is concerned it is based on the order, dated 24.9.01 against which the appeal is preferred. There is no dispute on the point that the appeal is preferred by the petitioner being ATA No. 204(5) 2003. There is also no dispute on the point that the order, dated 26.6.03 is passed by the presiding officer of the tribunal in the said appeal whereby the petitioner is directed to deposit 40% of the amount. There is also no dispute on the point that the petitioner has deposited 40% of the amount of the order which is the subject matter of the appeal. Therefore when the amount is deposited and the appeal is pending the PF authority would not be justified in issuing warrant for arrest of the office bearers of the petitioner nor they would be justified in freezing the bank account of the petitioner. There is no material produced before this court that subsequent order, dated 21.11.03 was the basis for issuance of warrant or for freezing of bank account. As such if the impugned order of issuing warrant is considered the same refers to the amount of Rs.9,80,558/which is the subject matter of appeal before the tribunal. Therefore, when the amount is already deposited being 40% of the amount as ordered by the Presiding Officer of the tribunal the order for issuance of warrant dated 30.10.03 can not be sustained in the eye of law nor the action for freezing of the bank account on the ground of recovery of amount as per the very order can be maintained.
7. So far as subsequent order, dated 21.11.2003 passed under section 7A is concerned since same is not the subject matter of this petition it would be for the petitioner to resort to remedy available under law and it would be for the PF authority to take action in accordance with law.
8. Under the above circumstances, the order passed by the respondent for issuing warrant, dated 30.10.03, copy whereof is produced at annexure 'I' at page 70 as well as action for freezing the bank account on the ground of recovery of PF amount of Rs.9,80,558.- is quashed and set aside.
9. Petition is allowed accordingly. Rule is made absolute to the aforesaid extent. Considering the facts and circumstances of the case, there shall be no costs.
10. In view of the order on main petition, no order on Civil Application No. 920/04. C.A.stands disposed of accordingly.