IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.812 of 2009 M/S. Shivlok Gas Agency at + P.S.Brahampura, Sanjay Cinema Road, P.O. M.I.T. District-Muzaffarpur through its Proprietor Smt. Rita Singh, W/O Sri Ashok Ranjan……………………..……………………Petitioner. Versus 1. Employees’ Provident Fund Organization(Ministry of Labour, Government of India) Sub Regional Office, New Vakalatkhana Bhawan, Court Compound Muzaffarpur 842001 through its Assistant Provident Fund Commissioner. 2. Assistant Provident Fund Commissioner, Sub Regional Office, EPF, Muzaffarpur. 3. Ghuran Jha, S/O Late Keshav Jha, r/o Roop Patahi, P.S. Sadar, District-Muzaffarpur…………………..………………….Respondents. ----------- For the petitioner : M/S. Pushkar Narain Shahi, Ritesh Kumar No.1 and Patanjali Rishi, Advocates. For E.P.F.Organization : Mr. Ratnakar Pandey, Advocate. ----------- 2. 26.08.2011. Heard learned counsels for the petitioner and the respondent-Employees‟ Provident Fund Organization. The petitioner has basically claimed two reliefs and prayed for quashing the letter dated 16.05.2008 issued under the signature of the Assistant Provident Fund Commissioner as contained in Annexure- 4, whereby in exercise of power under Section 7A of the Employees‟ Provident Fund and Miscellaneous Provision Act,1952(hereinafter referred to as „the Act‟) it has been held that the petitioner‟s Gas Agency is covered under the provisions of the Act and the petitioner was directed to comply the 2 provisions of the Act. A prayer has also been made for quashing of consequential order of attachment issued by respondent no.2 dated 27.11.2008 as contained in Annexure-5 whereby and whereunder the Manager of State Bank of India, MIT Branch, Muzaffarpur, who is banker of the petitioner‟s Gas Agency, has directed to remit Rs. 2,39,024/- to the Employees‟ Provident Fund Organization, which was the calculated provident fund contribution of the petitioner‟s Establishment, alongwith interest till June,2008. Mr. Pushkar Narain Shahi, learned counsel appearing for the petitioner submits that the petitioner in pursuance to the notice appeared and filed a show cause on 19.03.2008 whereby the stand was taken that only seven employees are working in the Establishment. Moreover, they are not being paid any salary rather they used to get Rs.8/- as commission per cylinder from the consumers. Hence, the Establishment of the petitioner, namely, M/S. Shivlok Gas Agency, Brahampura, Muzaffarpur, a domestic Gas Agency, does not come within the purview of Section 7A of the Act. It is 3 further submitted that admittedly, the petitioner filed a written statement on 19.03.2008 and the impugned order reflects that only one opportunity was given by the authorities before passing the impugned order as contained in Annexure-4, i.e., 15.01.2008 hence, the impugned order was passed without giving due opportunity to the petitioner. Learned counsel for the respondents, however, submits that the proceeding was initiated on the application being filed on 27.07.2007 by one Sri Ghuran Jha, respondent no. 3, an employee of the petitioner‟s establishment for providing benefit under the Act. It appears that Sri R. N. Pandey, the Enforcement Officer was directed to investigate the matter and on 15.01.2008 the petitioner was directed to appear on 07.02.2008 at 11.00 A.M. alongwith the records such as Attendance register, Salary register, Cash book, Ledger, Balance sheet with Profit and Loss Account. Sri R. N. Pandey, the Enforcement Officer was reminded to submit the report and he submitted the report on 15.02.2008 to the 4 effect that seven employees were found working, whereas the Service Cards of 14 vendors were found. It appears that on 23.04.2008, the Labour Office, Muzaffarpur, confirmed about 14 service cards. Thereafter, the petitioner was directed to appear on 15.05.2008 at 11.00 A.M. but none appeared then vide order dated 16.05.2008 the petitioner‟s Gas Agency was directed to comply with the provisions of the Act and the schedule framed thereunder within a period of one week. Ultimately, when the petitioner could not comply the order, as contained in Annexure-4, then attachment order was issued on 27.11.2008 whereby the Manager of State Bank of India, MIT Branch, Muzaffarpur, was directed to remit Rs. 2,39,024/- to the Employee‟s Provident Fund Organization calculating the due amount under the Act and the interest till June,2008. Considering the rival contentions of the parties, it appears that after due investigation, by the Enforcement Officer, of the petitioner‟s Organization only seven employees were found working though 14 Service Cards of vendors were found. Even 5 the impugned order does not reflect that those 14 Service Cards were inclusive of the seven employees found by the Enforcement Officer. The Labour Department‟s information also suggests about 14 service cards of vendors hence, prima facie on the basis of the materials on record it appears doubtful whether the Establishment of the petitioner comes under the purview of the Act. Section 1(3)(b) of the Act stipulates the minimum number of employees in any Establishment to bring the same within the ambit of the Act which reads as follows: “1. Short, Title extent and application (1)this Act may be called the Employees‟ Provident Funds and Miscellaneous Provisions Act,1952. (3)(b) Subject to the provisions contained in Section 16, it applies-(b) to any other Establishment employing(twenty) or more persons or class of such Establishments which the Central Government may, by Notification in the Official Gazette, specify in this behalf: Provided that the Central Government may, after giving not less than 6 two months‟ notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any establishment employing such number of persons less than(twenty) as may be specified in the notification.” Hence, there is no definite finding by the respondent authorities that petitioner employed twenty or more persons. So far as providing opportunity is concerned, the impugned order reflects that after filing of show cause, only two opportunities were given to the petitioner. One on 07.02.2008 i.e., admittedly, prior to submission of the show cause but after submission of the show cause only one opportunity was given on 15.05.2008. That can not be treated to be as giving reasonable opportunity to the petitioner to defend his case. Though in the counter affidavit the respondents took the stand that eleven notices were transmitted but only one was accepted by the petitioner. This contention is only supported by a letter of the Enforcement Officer, as no specific documents have been brought on record to justify the stand of issuance of 7 notice on eleven occasions. Moreover, there is no reference of these opportunities in the impugned order as mentioned in the counter affidavit. Hence, respondents can not supplement its stand through counter affidavit, on such issue which is not there in the impugned order. Hence, it can not be said that petitioner was given due opportunity to defend its case. On the basis of discussions made above, the order dated 16.05.2008 as contained in Annexure-4 and order dated 27.11.2008 as contained in Annexure-5 are hereby quashed. However, the respondent authorities are liberty to pass afresh order in accordance with law after giving due opportunity of being heard to the petitioner within stipulated time frame. With the above observation, this application is allowed. U. K. ( Dinesh Kumar Singh, J)