Patna High Court CWJC No.1658 of 1995 dt.26-08-2011 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1658 of 1995 =========================================================== M/S Gulati Auto Engineers .... .... Petitioner/s Versus The Union Of India & Ors .... .... Respondent/s =========================================================== Appearance : For the Petitioner : Mr. Ashok Priyadarshi, Adv. For the Respondents : Mr. R.S. Pradhan, Sr. Adv. : Mr. A.N. Rai, Adv. =========================================================== CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE VIKASH JAIN) The instant writ petition seeks quashing of the order dated 15.02.1995 passed by the Assistant Provident Fund Commissioner (Respondent No.2). By the said order, the petitioner has been directed to make payment of the dues assessed in terms of an earlier order dated 30.11.1988 (Annexure-3), after finding that the establishment was covered under the provisions of Section 7-A of the Employees Provident Fund Act, 1952 (hereinafter referred to as “the Act”) from 01.06.1982, on the basis of an employee strength of 21 persons on regular basis. 2. The brief history of the admitted facts of the case may be indicated herein. 3. It appears that pursuant to an inspection conducted on 01.06.1982 by the Provident Fund Inspector, it was found that 21 persons were working in the petitioner’s Patna High Court CWJC No.1658 of 1995 dt.26-08-2011 establishment at the time of inspection. Based on the inspection report, the petitioner was held liable under the provisions of the Act and accordingly a demand was raised against the petitioner in terms of the order dated 30.11.1988 (Annexure-3) passed under Section 7-A of the Act. 4. The said order dated 30.11.1988 was questioned by the petitioner in C.W.J.C. No. 4547 of 1989, which was disposed of on 26.7.1989 (Annexure-4) by a Division Bench of this Court. 5. In doing so, this Court gave due consideration to the submissions made on behalf of both the parties, the several registers including the attendance register of June, 1982 and also various judicial decisions, whereupon this Court had made the following observations in para 5 of its order:- “But, the other view of the law is also well settled that if on one occasion for a short period under certain exigencies the establishment employ more than 21 persons, that will not be deemed to be an employment in course of the business of the management, as has been held in the decisions reported in 1971 S.C. 1519, 1978 B.B.C.J. 337 and 1973 L.I.C.3. It was held in these cases that the work „employment‟ must be considered as employment in the regular course of business of the establishment and such employment would not include any employment of few persons for a short period on account of pressing necessity or some emergency beyond the control of the establishment. It is for this reason that the respondents must have occasional inspection of the establishment.” The matter was accordingly sent back to the Provident Fund Commissioner for its reconsideration. 6. It appears that on the very same materials, the impugned order dated 26.07.1989 (Annexure-6) has been passed Patna High Court CWJC No.1658 of 1995 dt.26-08-2011 once again reiterating that the petitioner is liable to make payment under the Act. 7. Learned counsel for the petitioner Mr. Ashok Priyadarshi, submits that the issue in question is already squarely covered by the aforesaid decision of this court in C.W.J.C. No. 4547 of 1989 and the matter is no longer res integra. He points out that the impugned order itself categorically admits that 13 employees were paid through vouchers and there were only 8 employees whose wages were paid through Attendance-cum-Payment Register. He, therefore, submits that at no point of time were there more than 8 regular employees and as such the Act had no application to the establishment. He claimed that the remaining 13 persons who had been found working on the date of inspection and who had been paid through vouchers could not be treated as regular employees for the purposes of the Act, as would be evident from the observations of the Divisions Bench of this Court. He points out that merely on a one-off inspection carried out on 01.06.1982, it could not possibly be inferred that 21 persons had been working regularly. No subsequent inspections were carried out nor any material placed on record to show that but for that one solitary inspection, there was ever any instance when more than 10 persons had been found working in the petitioner’s establishment so as to attract the applicability of the Act. Patna High Court CWJC No.1658 of 1995 dt.26-08-2011 8. Learned counsel for the respondents, Mr. R.S. Pradhan Sr. Adv., assisted by Mr. A.N.Rai, adv., appeared on behalf of the respondents and supported the impugned order. He referred to the enquiry report dated 01.06.1982 as contained in Annexure-A to the counter affidavit, wherein it has categorically been stated that 21 persons had been found engaged in repairing works, and as such the Act had rightly been applied to the petitioner’s establishment. 9. Having heard the learned counsels for the parties and after carefully considering the materials on record, this court has no hesitation in concluding that the writ petition must be allowed, it will transpire that apart from the solitary inspection conducted on 01.06.1982, there is admittedly no further material on record on the basis of which it might be possible to say that the 13 persons in question were regularly employed in the establishment. Had an excess number of persons beyond the permissible statutory limit been found working on subsequent inspection, it may have been possible to agree with the learned counsel for the State. One swallow, however, does not a summer make. 10. There can also be no gainsaying that the enquiry report pursuant to the inspection conducted on 01.06.1982 has already been taken due consideration of by the Division Bench, and it is only thereafter that the earlier demand was quashed. 11. In the second innings the respondents have merely reiterated the petitioner’s liability under the Act on the basis of Patna High Court CWJC No.1658 of 1995 dt.26-08-2011 the same materials as before, without injecting any fresh date into the factual matrix. In this sense, the impugned order is in the teeth of the order dated 26.07.1989 passed by the Division Bench of this Court in C.W.J.C. No. 4547 of 1989 and cannot be sustained. 12. The impugned order dated 15.02.1995 (Annexure- 6) is accordingly quashed, and the writ petition is allowed. In the circumstances, there will be no order as to costs. ( Vikash Jain, J.) PATHA HIGH COURT DATED: 26.08.2011 FAHAD/NAFR