*1* wp.5105.11.8.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5105 OF 2011 Mahaveer Cloth Stores. ..Petitioner ­Versus­ Abhyankumar Mandal and another. ..Respondents .......... Mr.Anand S. Kulkarni, for the Petitioner. Mr.Suresh Kumar, for the Respondent No.1. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 22nd August, 2011. P.C.: 1 The Petitioner received the summons to appear in an inquiry under section 7A of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (in short “P.F. Act”). Accordingly, the Petitioner appeared and pointed out by production of necessary records that at no point of time the Petitioner had employed the requisite number of employees i.e. 20 and therefore, the P.F. Act is inapplicable. 2 However, the Assistant Provident Fund Commissioner by his order dated 06.06.2005 held that the Petitioner (employer) has admitted the coverage under the Employees’ State Insurance Act, 1948 (in short “ESI Act”. That ESI Act also contemplates that for coverage, the minimum number of employees is 20. Once there is an admission that 20 employees are working, therefore, the Petitioner establishment is covered by the said enactment, then, for the purpose of the present enactment a different view cannot be taken. 3 This finding of the Assistant Provident Fund Commissioner *2* wp.5105.11.8.sxw has been confirmed by the Appellate Tribunal in the subject appeal and that is how aggrieved by the appellate order dated 10.03.2011, this Writ Petition under Articles 226 and 227 of the Constitution of India has been filed. 4 Mr.Kulkarni, learned counsel appearing for the Petitioner, submitted that before the Assistant Provident Fund Commissioner as well as before the Appellate Authority, a specific contention was raised that the ESIC inspection was done on 13.07.2000. The inspector counted five casual employees along with 16 employees who were on muster. The said five employees were paid for two days for generator repair work. Since five employees were casual employees employed only for two days for generator repair work, they cannot be considered for the purpose of coverage of the Petitioner establishment under the P.F. Act. He submits that not only the contention was raised, but the documents were produced, namely, the wages register from April, 2000 to March, 2004 and the ESIC visit note dated 13.07.2000. Mr.Kulkarni submits that merely because the authority found the requisite number of employees working, that the applicability of the P.F. Act would not be automatic and this aspect should have been considered by both authorities. 5 Mr.Suresh Kumar, learned counsel appearing for the Respondent No.1, submits that once a coverage under the ESI Act is admitted, then, the Petitioner establishment cannot argue to the contrary for the purpose of P.F. Act. Both legislations are welfare legislations. Their interpretation, therefore, should not be such as to deny coverage to the ultimate beneficiaries, namely, employees. For all these reasons, the Writ Petition be dismissed. 6 From perusal of the Writ Petition and annexures thereto, it is apparent that on 06.06.2005 the Assistant Provident Fund Commissioner *3* wp.5105.11.8.sxw clearly held that the Petitioner establishment has requisite number of employees and therefore, it should pay contribution under the subject enactment. The Petitioner applied for review by addressing a communication dated 20.06.2005. The review application was rejected on the ground that there are no new facts in the application for a fresh consideration. Aggrieved by the main order, the appeal was preferred and in the meanwhile, the Petitioner under protest deposited Rs.2 lacs. The appeal was then heard by the Appellate Authority and as has been observed repeatedly the Appellate Tribunal in mechanical and laconic manner upheld the observations of the Assistant Provident Fund Commissioner made in inquiry under section 7A of the P.F. Act. Neither the Assistant Provident Fund Commissioner nor the Appellate Authority had adverted to any of the materials which were specifically brought to their notice. In fact the Appellate Tribunal holds that the applicability of the P.F. Act is questioned, but the burden to prove the staff strength lies on the Petitioner. Assuming that to be correct, it is held that no document has been filed by the Petitioner to show the staff strength. On the other hand, the declaration before the Employees’ State Insurance Corporation (ESIC) has been relied upon. This is stated to be an admission of the Petitioner. 7 However, if the Appellate Tribunal had bothered to peruse the order of the Assistant Provident Fund Commissioner, it would have at once noticed that the coverage was not admitted. There is no admission and in fact it is argued that the inspection of the ESIC and the notice issued during the same, would reveal that the requisite number of employees are not employed in the Petitioner establishment. Several documents including the wages register were produced. To my mind, even if the provisions of the enactment such as P.F. Act and ESI Act have to be extended to the employees and are intended to be for their benefits and *4* wp.5105.11.8.sxw interest, the public interest demands that the inquiry should be held impartially and in judicious manner. Once the Appellate Tribunal has been approached, it is not meant to put up its stamp of approval mechanically and without application of mind. 8 In the instant case, it is clear from perusal of the petition and annexures thereto, that there is total non application of mind on the part of the Tribunal. Its order cannot be, therefore, sustained. The order of the Appellate Tribunal is, therefore, quashed and set aside. The Appeal being A.T.A. No.974(9)/2005 stands restored to the file of the Appellate Tribunal and the Tribunal shall decide the same afresh on merits and in accordance with law and without being influenced by its earlier order and conclusions. The Tribunal shall do so as expeditiously as possible and within a period of three months from the date of receipt of a copy of this order. All contentions of both sides are kept open. The Writ Petition is, accordingly, disposed of. No costs. (S.C. Dharmadhikari, J)