- (1.) HEARD Sri A. Chaturvedi, learned counsel for the petitioners.
(2.) IN this writ petition the petitioners have prayed for a writ, order or direction in the nature of certiorari to quash the order dated 7.8.2014 passed by Respondent No.1 in ATA No. 780 (14) of 2011.
(3.) BRIEFLY stated the facts of the present case are that a survey of the establishment of Respondent No.2 was conducted on 18th July, 1996 and a code No. UP/20923 was allotted to the establishment of Respondent No.2 on the basis of the report of the enquiry officer. Respondent No.2 challenged the applicability of the Employees' Provident Fund and Misc. Act, 1952 (hereinafter referred to as 'the Act') on the ground that only 7 or 8 employees were employed in the establishment and they have never employed 20 or more employees. However, the objection was not accepted and the Assistant Provident Fund Commissioner, Agra decided the applicability of the Act and passed an order dated 9.6.2000 under Section 7A of the Act. Against this order Respondent No. 2 filed an appeal No. ATA 422 (14) of 2000 which was disposed of by the Tribunal and the matter was remanded by order dated 14.12.2000. As per directions of the Tribunal the Assistant Provident Commissioner, Agra directed the squad to visit the establishment and find out the details and addresses of the alleged employees who were alleged to be 26 in number. However, without identifying the eligible persons the Assistant Provident Fund Commissioner passed the order dated 30.8.2011 under Section 7A of the Act upholding the order dated 9.6.2000. Aggrieved with the aforesaid order dated 30th November, 2011 Respondent No.2 filed an appeal ATA No. 780 (14) of 2011 before the Employees' Provident Fund Appellate Tribunal, which has been allowed by the impugned order dated 7th August, 2014. Aggrieved with this order the petitioners have filed the present writ petition. In the impugned order the Tribunal has recorded the following findings: "5. Heard both the counsels for the parties, perused the impugned order, Enforcement Officers' report, I have examined first inspection report dated 18.7.1996 which was signed by the representative of the appellant. In this list, the Enforcement Officer has shown detail of six employees named and salary and other 20 employees from serial No. 3 to 22 shown as delivery -man on contact basis. Since this list is disputed as the squad of the Enforcement Officers failed to do his statutory duty to count them with details of all eligible persons i.e. name, father's name, date of joining, salary and address so this Tribunal while passing final order dated 14.12.2000 has directed in his order ....." The appeal is disposed off with observation and direction that coverage of the establishment is upheld only on the condition that department will be able to identify at least 20 eligible persons, if they fail the coverage order will stand set aside." The respondent -Commissioner had to identify the 20 eligible persons as directions of this Tribunal so Mr. R.C. Mina, Assistant Provident Fund Agra passed an order on 28.6.2002 by consisting thee Enforcement Officers, M/s K.S. Chandel, Sri O.P. Arya and R.R. Kurel and also directed them to visit the establishment and other relevant government office and find out the details, address and whereabouts of the listed employees and submit report within three months. No such report by identifying the name, father's name, date of joining, salary and addresses was submitted by these Enforcement Officers. The impugned order has no findings on these directions of Mr. R.C. Mina, Assistant Provident Fund Commissioner, Agra, that these Enforcement Officer has identified 20 eligible persons. The respondent has written only findings that the Establishment has not cooperated during enquiry but there are no discussions about the identification of eligible employees. No such report of identified 20 persons was filed by the respondents despite directions by this Tribunal. There are no discussions about the 20 eligible persons in the impugned. 6. It is well established law and repeatedly the Tribunal is in the view that unless the form No. 02 and form No. 03A or ECR are filled properly, the impugned demand, if recovered by respondent authority on behalf of assumed employees will not reach in the account of the actual beneficiaries and the amount shall remain in suspension account. The Bombay High Court in the matter of Sandeep Dwellers Pvt. Ltd Nagpur Vs. Union of India, 2006 3 CurLR 748 that ...... "as beneficiaries are unknown and the department itself had doubts, recovery from any earlier date for which no deduction has been made should not be allowed. The law in the point is already discussed above. The beneficiaries must be known and the amount of deduction cannot be permitted to lie idle with department." The Hon'ble Supreme Court in the matter of Himanchal Pradesh State Forest Coporation Vs. Regional Provident Fund Commissioner, 2008 3 LLJ 581 decided that "..... considering the long delay the amounts due from the corporation will be determined only with respect of those employees who are identifiable and whose entitlement can be proved on evidence'. The door -delivery men of LPG are unknown in this matter so in my opinion, judgment of the Hon'ble Bombay High Court in the Sandeep Dwellers () as well as the judgment of in the matter Himachal Pradesh State Forest Corporation () are applied in this matter. Therefore, in view of the aforesaid judgments, the impugned order is not sustainable under law.;