S.C.AGRAWAL, J. - (1.) IN this writ petition filed under Articles 226 and 226 of the Constitution of India, the petitioner has prayed that a writ of certiorari or any other writ or direction be issued to quash the order (Annexure H; dated 19th August, 1980 passed by the Regional Provident Fund Commissioner, Rajasthan, Jaipur (hereinafter referred to as 'the Provident Fund, Commissioner) in exercise of the powers conferred on him under Section 7(A) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as 'the Act'). By the order aforesaid, the Provident Fund Commissioner has determined that a sum of Rs. 8821.95 is payable as provident fund dues by the petitioner for the period from July 1966 to April, 1967 and December, 1967 to April, 1978. In the order aforesaid, it has also been directed that the above said dues should be paid within 10 days from the date of the receipt of the said order failing which the amount shall be recovered under Section 8 of the Act.
(2.) IN the writ petition it is alleged that the petitioner, Smt. Jaswant Kaur Sethi, is the sole proprietor of Sethi Marble and Stone Industries and carrying on business of manufacturing and selling of lime stone chips within the Municipal limits of Municipal Board, Chittorgarh. The petitioner has been carrying on the said business since 1st July, 1956. The case of the petitioner is that for the purpose of the aforesaid business, she purchases lime stone from the open market and that she does not hold any lime stone quarry. In the year 1965, the Provident Fund Inspector inspected the establishment of the petitioner and at that time, Shri G S. Sethi, the Manager of the petitioner, gave in writing a slip admitting the applicability of the Act to the petitioner's establishment and the petitioner deposited the provident fund dues for the years 1965 -66 and 1967 -68. Thereafter, the petitioner did not deposit the provident fund dues as it was advised that the Act was not applicable to the establishment of the petitioner. On 25th March, 1976, the Provident Fund Inspector came to the establishment of the petitioner and called upon the petitioner to produce all the accounts books, attendance register, wages register, cash book, journal and ledger in his office at Udaipur on 3rd May, 1976 and thereupon, the petitioner addressed a letter dated 18th May, 1976 to the Provident Fund Commissioner wherein it was stated that after consultation with her legal adviser, the petitioner had learnt that the said industry is not listed in Schedule I and that it does not come under the Scheme and the petitioner requested that its establishment may be declared free from the provisions of the Act. By notice dated 27th July, 1976, the petitioner was called upon to deposit the provident fund and the family pension fund dues and to submit the returns for the period December, 1967 to June, 1976. On receipt of the said notice, the petitioner served a notice dated August 9, 1976, under Section 80 C.P.C, on the Union of India, the Provident Fund Commissioner and the State of Rajasthan stating that the petitioner's establishment is not covered by any of the provisions of the Act, in as much as under the notification GSR No. 1779 dated November 27, 1965, the provisions of the Act had been made applicable only to the stone quarries where chips were manufactured and that the petitioner does not own any stone quarry and further that the petitioner had never employed in her establishment 20 or more than 20 persons at any time during the period from December, 1967 to June, 1976. With reference to the aforesaid notice dated 9th August, 1976 issued by the petitioner under Section 80 C.P.C, the Provident Fund Commissioner, by his letter dated 16th November, 1976, informed the petitioner that from the office records and the declaration dated 20th December, 1965 given by the Manager of the petitioner it appeared that the establishment of the petitioner was engaged in lime stone quarries and chips manufacturing and had employed more then 19 persons as on 30th June, 1961 and as such all the requisite conditions of the coverage were applicable to the establishment of the petitioner and trial if the petitioner had any doubt or grievance, she may produce the documentary evidence to represent its case before the Provident Fund Commissioner in the second week of December 1976 In response to the aforesaid letter of the Provident Fund Commissioner, the petitioner submitted an affidavit of Shri Gurudutt Singh Sethi, the Manager of the petitioner, dated 9th December, 1976, wherein it was stated that the proprietor of Sethi Marble and Stone Industries hid never obtained any lease or licence for lime stone quarry or any other quarry from the State of Rajasthan and that the factory of the petitioner is located on agricultural land near the station and is not located near a lime stone quarry. In the said affidavit, it was further staled that in the establishment of the petitioner not more than five employees had worked for more than 240 days in a year and that the other employees were casual labourers who had not worked continuously for 2 -40 days in a year and that since the year 1968, the total number of employees, including casual labourers, had ranged from 15 to 18. After the submission of tire aforesaid affidavit, the petitioner was served with various notices from time to time by the Provident Fund Commissioner requiring the petitioner to appear before him either in person or through any representative along with all the relevant record and the case was adjourned from time to time. On 24th July, I960, Shri P.S. Sethi appeared on behalf of the petitioner and prayed that some time may be granted to comply with the provisions of the Act and the matter was adjourned to 19th August, 1980. It appears that on 19th August, 1980, no body appeared on behalf of the petitioner and the Provident Fund Commissioner passed the impugned order.
(3.) IN the writ petition the petitioner has submitted that the order dated 19th August, 1980 passed by the Provident Fund Commissioner is void and without jurisdiction for the reason that the establishment of the petitioner if not covered by the provisions of the Act. The case of the petitioner is that the petitioner's establishment is not engaged in any industry, which can be said to be covered by any of the provisions of Schedule I to the Act and that the petitioner's establishment is also not covered by the non -factory industries to which the Act has been made applicable under Section 3(b) of the Act, in as much as the petitioner neither carries on any mining operations for lime stone nor the petitioner is holding any mining lease or licence for a stone quarry. In the writ petition, the petitioner has further submitted that the provisions of the Act are not applicable to the petitioner's establishment, also for the reason that petitioner does not employ 20 or more persons and that even though it had beed positively asserted by the petitioner in the affidavit filed before the Provident Fund Commissioner, that the petitioner was not engaged in any of the activities which could be covered by any of the entries in Schedule I or Appendix II and that the petitioner had not employed 20 or more persons the Provident Fund Commissioner, while passing the impugned order, had failed to decide the said questions after considering the material on record. A notice was issued to the respondents, vis., the Provident Fund Commissioner and Union of India requiring them to show cause as to why the writ petition should not be admitted and in response to the said notice, a reply has been filed on behalf of the respondents. In the said reply, it has been asserted that the establishment of the petitioner is covered by the provisions of the Act in as much as the petitioner has been carrying on business of lime stone quarry and manufacturing of lime stone chips in the said establishment and that the establishment of the petitioner had employed more than 20 employees in June, 1961. In this connection, the respondents have placed reliance in the statement dated 20th December, 1965 signed by Shri G.S. Sethi, the Manager of the petitioner's establishment, wherein he had stated that the establishment of the petitioner is engaged in the business of lime stone quarrying besides manufacturing of chips and that the establishment and employed more than 20 employees in June, 1961. The respondents have also placed reliance on the order dated 24th July, 1980, passed in the proceedings that were pending before the Provident Fund Commissioner, wherein it is recorded that Shri P.S. Sethi, had appeared on behalf of the petitioner's establishment, and had agreed that the report dated 20th December. 1965 is duly signed by the Manager or the establishment and had further agreed to comply with the provisions of the Act and had requested for grant of sometime for the same. In the reply aforesaid, the respondents have also stated that the Assistant Mines Engineer, Chittorgarh, by his letter dated Ist August, 1979 had informed that 'Bhed Niker' mines near Gangrer village measuring 50 x 50 meters are leased to Shri G.S. Sethi son of Jeevan Singh Sethi.;