IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18232 of 2010 1. M/S Basu Soap Factory through its Proprietor Pradeep Kumar S/O Sri Chandrika Prasad Chiria Ghat, R/O Kotwali Chowk, Ganj No.2, P.O. & P.S.Bettiah, Distt-West Champaran Versus 1. The Regional Provident Fund Commissioner , Bihar Bhavishya Nidhi Bhawan R.Block, Road No.6, Patna, Bihar 2. Employees Provident Fund Appellate Tribunal Laxmi Nagar, Radhu Place, Scope Minor Core II, 4th Floor, New Delhi 3. The Assistant Provident Fund Commissioner , Sub Regional Office(E.P.F.) Muzaffarpur Court Compound, Muzaffarpur, Bihar ----------- 6 15.11.2011 Heard Mr. K.K. Tiwari, learned counsel for the petitioner and Mr. Vinay Kumar Pandey, learned counsel for the Regional Provident Fund Commissioner and its authorities. The petitioner is aggrieved by the order dated 6.5.2010 as contained in Annexure 9, passed by the Employees Provident Fund Appellate Tribunal in case No. ATA No. 865 (3) of 2003 as contained in Annexure-9 whereby the learned Tribunal has been pleased to dismiss the appeal preferred by the petitioner and uphold the order dated 09.10.2003 as contained in Annexure-4, passed by the respondent- Assistant Provident Fund Commissioner, Sub Regional Office, Muzaffarpur in purported exercise of power vested under Section 7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the ‘Act’). The petitioner has also questioned the order dated 05.12.2003 passed by the respondent No.3 whereby the review preferred by the petitioner under Section 7B of the Act, has been rejected. The order is placed at Annexure-5 of the writ petition. In addition to the order(s) aforesaid, the petitioner has also questioned the notice of Demand dated 26.05.2004 placed at Annexure-8 of the writ petition. 2 The only ground raised for assailing the impugned order is that the employees strength on the rolls of the petitioner establishment was less than 20 and thus the Act was not applicable on the establishment. The contention advanced on behalf of the petitioner having been rejected by the Assistant Provident Fund Commissioner who passed the order of assessment placed at Annexure-4 of the writ petition and the appeal preferred by the petitioner having been rejected by the Tribunal vide order placed at Annexure-9 hence the present application. The petitioner in support of his contention has enclosed the relevant extract of the attendance register which also mentions the wages paid to the employees and relying upon the same it was submitted that there were only 5 persons in the establishment of the petitioner and thus in view of the matter that the strength of the employees was far below the statutory requirement of 20 persons, the Act was not applicable. The said circumstances was not accepted by the Assistant Provident Fund Commissioner on the grounds that the same did not reflect the correct states of affairs. It is the case of the respondent Department that in fact as on the date of inspection there were 22 employees found working in the establishment. The said list has been placed at Annexure-7 of the proceedings. Although the petitioner disputes the said position and the documents relied upon by the department and submits that the respondents having taken the signature of the proprietor of the petitioner on blanksheet have entered the names. On this ground the 3 petitioner questioned the order of assessment passed by the Assistant Provident Fund Commissioner by filing an Appeal under Section 7I of the Act and which has since been rejected by order dated 06.05.2010 placed at Annexure-9. The Tribunal while dismissing the appeal has also relied upon the list prepared by the enforcement Officer duly signed by the proprietor. In the present proceedings also, a counter affidavit has been filed enclosing the enquiry report submitted by the proprietor of the petitioner under the provisions of the Act and the said document placed at Annexure- A of the counter affidavit vindicates the stand of the respondents as the proprietor of the petitioner has admitted that the number of employees working in the establishment is 22. The report has been duly signed by the Proprietor himself namely Sri Pradeep Kumar Mishra and the same has not been doubted by the petitioner. In view of the circumstances where the petitioner himself has admitted 22 employees in his establishment, he at this stage cannot resile from his statement. Regard being had, to the circumstances, no infirmity can be found in the impugned order. Learned counsel for the petitioner next submits that as the petitioner establishment stands closed w.e.f. 31.03.2004 and no production work is being carried out in the establishment since then, the liability would be onerous. Without interfering with the orders impugned, this Court would grant liberty to the petitioner to represent before the authorities concerned to permit him to pay the outstanding dues in installments and 4 which request of the petitioner may be considered equitably and with a degree of sympathy by the respondents considering the fact that no manufacturing process is being carried out at the petitioner establishment since 31.03.2004. The writ petition stands dismissed subject to the observation aforesaid. Bibhash (Jyoti Saran, J.)