1 wp-1446-11.sxw mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1446 OF 2011 Fortune Foods Ltd. ..Petitioners Vs. Regional Provident Fund Commissioner & Anr. ..Respondents Mr. S.S.Pakale i/b Mr. Kirankumar Phakade for the Petitioners CORAM:- R.Y.GANOO, J DATED :- JULY 5, 2011. P.C. 1 Heard the Learned Counsel for the Petitioners. 2 The Regional Provident Fund Commissioner has by order dated 12-4-2001 brought the Petitioners within a purview of The Employees Provident Fund and Misc Provisions Act 1952 (hereinafter referred to as the said Act) on the ground that the Petitioners establishment has engaged 20 or more than 20 workmen. That order came to be challenged by way of an Appeal before the Employee’s Provident Fund Appellate Tribunal and the Learned Presiding Officer of the said Tribunal after hearing the Petitioners i.e. the Appellants and the representative of the Department, came to a conclusion that there is no need to interfere with the order passed by the Lower Authority and accordingly the said Appeal was dismissed. That was done by order dated 21-9-2010. The Petitioners have challenged this order under Article 226 and 227 of the Constitution of India. 2 wp-1446-11.sxw 3 I have extensively heard the Learned Counsel for the Petitioners. It has been the stand of the Petitioners, that the Petitioners have not employed 20 or more than 20 employees at any point of time. An attempt was made by the Learned Counsel for the Petitioners to submit that the inferences arrived at by the Regional Provident Fund Commissioner to treat certain charges as wages to workmen employed by Petitioner are not correct. According to him proper opportunity was not given to the Petitioners. According to him method adopted by the concerned officer to quantify the number of workman was wrong. 4 I have perused the record as well as the impugned order. The Petitioners have produced material before the inquiry officer and have tried to contend that certain amounts were paid to individuals under different heads i.e. labour charges, cleaning charges and security charges etc. According to the Petitioners these persons were employed to render specific services and monies were paid to them on contract basis for particular purpose and upon fulfillment of the said purpose, said charges have been paid and those expenses have been accounted for. According to the Learned Counsel for the Petitioners, the inferences arrived at by the Regional Provident Fund Commissioner were per-se wrong and that is how the order passed by him and as well as the Appellate Tribunal was wrong, as he has not applied his mind to the facts of this case. 5 In my view, whenever an employer employs certain number of persons in an establishment he would maintain record to show the total number 3 wp-1446-11.sxw of workers working in the establishment for showing it to the authorities. If the salaries are paid on monthly basis it is easy for an employer to show that salaries are paid on month to month basis by production of appropriate record such as salary register. After having considered the entire record I am of the opinion that the Petitioner has tried to create a record to show that it has not employed more than 20 and services of certain persons are hired for specific purpose and payments were made in that behalf. The inferences drawn by both the authorities are correct and the impugned order does not require any interference. 6 It was argued that the Learned Presiding Officer of the Appellate Tribunal has not applied his mind properly. After having gone through the said Order I am not inclined to accept the said contention. Both the authorities have taken a correct view in the matter on the basis of record produced before them. It is not the case of the Petitioners that the Petitioners were not given proper opportunity to produce material on record. For the reasons stated aforesaid this is not a case where this Court should entertain the Petition under Article 226 and 227 of the Constitution of India. The Petition is required to be dismissed and is accordingly dismissed. (R.Y.GANOO, J.)