Judgment S.K. Jha, J. In this application under Article 226 of the Constitution of India the petitioners have prayed for issue a writ in the nature of certiorari for quashing the notice dated 5.1.76 as incorporated in annexure 2 and the order of the Regional Provident Fund Commissioner respondent no. 2 dated 17.1.77. as incorporated in annexure 3 to the writ petition. A further prayer has been made for the issuance of a writ of mandamus restraining the respondents from taking any action under the Employees' Provident Funds (and Family Pension Funds) Act, 1952 (hereinafter to be referred to as the Act). 2. By the impugned order (annexure 3) the petitioners have been asked to pay the amounts of money determined as employer's contribution to the provident fund purported to be made under section 7 A of the Act. The notice as contained in annexure 2 was issued to the petitioners prior to the passing of the aforesaid order. 3. The grounds on which the petitioners have sought relief’s aforementioned are that the Act, does not apply to the petitioners as Messrs Shankar Brothers petitioner no. 1 (a firm), is neither a factory nor an establishment employing 20 or more persons notified by the Central Government under section 1 (3) (b) of the Act. It has been asserted that petitioner no. 1 is not a factory engaged in any industry specified in schedule I of the Act. Furthermore, it did not at the relevant time and does not even today employ 20 persons or more in its establishment nor has the said firm been an establishment employing 20 or more persons as notified by the Central Government under section 1 (3) (b). The firm is entirely owned by Bandi Shankar Singh, petitioner no. 2, and right from its inception in the year 1951 it has been engaging itself in simple purchase and sale of mica. In the year 1974 the firm was registered under the Bihar Shops and Establishments Act, 1953 (Bihar Act, VIII of 1954) as employing only 18 persons. A copy of the registration certificate under the Bihar Shops and Establishments Act, has been annexed and marked annexure 1. The Regional Provident Fund Commissioner, respondent no. In the year 1974 the firm was registered under the Bihar Shops and Establishments Act, 1953 (Bihar Act, VIII of 1954) as employing only 18 persons. A copy of the registration certificate under the Bihar Shops and Establishments Act, has been annexed and marked annexure 1. The Regional Provident Fund Commissioner, respondent no. 2 it is alleged by the petitioners, "illegally allotted a code No. (B.R./ 2180) for the purpose of the Act, to the Shankar Brothers on the erroneous ground that the "Act applied to it, which was protested against". On 5-1-76 respondent no. 2 sent a notice to petitioner no. 2, purporting to Act, under section 7-A of the Act, calling upon him to show cause as to why amounts be not determined for payment by the petitioners to the employees provident funds employer's share for the period February, 1974 to November. 1975. That notice, as already mentioned above, is annexure 2. It is said that, since petitioner no. 2 was seriously III practically during the whole of the year 1976, he was prevented from standing the hearing of the proceeding before respondent no. 2. He always presented medical certificates in proof of his illness. On 17-1-77 ultimately respondent no.2 passed an ex-parte order (annexure 3) determining the amounts payable by the petitioners under the Act, and demanding their payments under threat of proceeding under section 8 of the Act. 4. A counter affidavit has been filed on behalf of respondent no. 2. The stand of the respondent is that the petitioner firm has, on its roll, more than 20 employees since before 21-1-74. The Inspector of respondent no. 2, during the course of his inspection on 18-2-75, on perusal of the attendance register of the petitioner firm dated 21.2.74, had reported that the petitioners establishment employed 24 persons. A true copy of the report has been marked annexure A to the counter-affidavit. It has also been stated that the Inspector of respondent no. 2 had submitted a further report dated 17.11.75 to the same effect, a true copy whereof has been marked annexure B to the counter-affidavit. On 16-1-76, it bas further been stated, the Manager of the petitioners appeared before respondent no. 2 and took time to produce papers but he never turned up. On behalf of the petitioners, on the ground of illness of petitioner no. On 16-1-76, it bas further been stated, the Manager of the petitioners appeared before respondent no. 2 and took time to produce papers but he never turned up. On behalf of the petitioners, on the ground of illness of petitioner no. 2 time had been taken on several occasions in spite of the fact that respondent no. 2 had made it clear that his personal appearance was not required. Finding the petitioners not cooperating, respondent no. 2 ultimately passed the ex-parte order as contained in Annexure 3. 5. A reply to the respondent's counter-affidavit has been filed on behalf of the petitioners wherein it has been stated with reference to paragraph 4 of the counter-affidavit that petitioner no. 2, who is the deponent, has never been aware of the so-called Registrar's certificate showing that petitioner no. 1 has, on its roll, more than 20 employees since before 21-9-74. Even if there be such a certificate, it is absolutely false. The registers of employees have throughout shown much less than 20 employees on the rolls. The entries in the registers were duly signed by the Labour Superintendent, Government of Bihar; Hazaribagh, and the Provident Fund Inspectors, Kodarma. With regard to a statement contained in the counter-affidavit that the petitioners had actually paid employer's contribution in respect of their employees, it has been stated in the reply that under a mistake of law the petitioner firm paid employer's contribution only in respect of one person who was its Assistant Manager. With reference to annexure A read with paragraph 6 of the counter-affidavit, it has been stated that the workmen at serials 17 to 24 of the list attached to annexure A were actually permanent workmen duly borne on the rolls of another public limited concern, namely, the Christian Mica Industries Ltd. Domchanch, and they were also on the rolls of the provident fund Register of that company. These workmen at serials 17 to 24 of the list attached to annexure A were only occasionally engaged by the petitioners and the petitioners had made statements to that effect before the Provident Fund Inspector. They had only worked as casual employees of the petitioners for a short while. 6. The bone of contention between the parties in this case is as to whether petitioner no. They had only worked as casual employees of the petitioners for a short while. 6. The bone of contention between the parties in this case is as to whether petitioner no. 1 is an establishment covered by section 1 (3) (b) of the Act, as employing 20 Or more persons and as such is subject to the application of the provisions of the Act. Mr. Basudeva Prasad, learned Counsel for the petitioners, urged that in the impugned order (annexure 3) respondent no, 2 had not applied his mind to the most vital aspect of the matter in spite of such an objection having been raised on behalf of the petitioners in the representation filed before respondent no. 2 as - to whether petitioner no. 1 was an establishment employing 20 or more persons. It was further submitted that the document annexed as annexure B to the counter-affidavit, on which the respondents relied, itself went to show the correctness of the certificate granted to the petitioners under the Bihar Shops and Establishment Act, as employing less than 20 persons. From annexure 1 to the writ petition, it appears that the maximum number of employees to be engaged by petitioner no. 1 on any particular working day is given as 18. The report of the Provident Fund Inspector dated 19.2.75 (annexure A to the counter-affidavit), [Extracts made] on the contrary, states- "Sub:-Applicability of the F.P.F. & F.P. Act. 1952 and the Scheme framed there under to Shankar Brothers. Domchanch, Hazaribagh D.L. No. 1288 H. D/Sir, Visited your establishment today for the above purpose and discussed with your Manager, Sri Chandra Deo Pd, on the basis of the attendance register produced before me by Sri Chandra Deo Pd., it appears that the following workers were working in establishment your on 21.1.1974:" Thereafter follows a list of 24 persons. Out of 24 persons according to the petitioners' reply to the counter-affidavit, persons mentioned at serials 17 to 24 had been employed only casually by the petitioners on account of some pressing necessities and, as a matter of fact persons at those serial numbers were the permanent employees borne on the rolls of Messrs. Christian Mica Industries Ltd., another company. The assertion of the petitioners finds support from what is said in the inspection note (annexure B) itself on which the respondents themselves placed reliance. Christian Mica Industries Ltd., another company. The assertion of the petitioners finds support from what is said in the inspection note (annexure B) itself on which the respondents themselves placed reliance. The relevant portion of that inspection note may be quoted here-in-under- "1. Name of the P.F. Inspector V.N.P. Verma, Koderma 2. Date of Inspection -17.11.75. 3. Date of last visit - 25-6-75 4. Name of the estt. - M/S Shankar Brothers, At &, P.O. Domchanch. 5. Code No. - BR/2180. 6. No. of employees – Weekly 14 Record not shown Verbal Inspection, Monthly-2 in July 75./16 7. Record signed - Weekly register from 26-7-75 to date". It would appear from the portion extracted above that the Provident Fund Inspector, Shri V.N.P. Verma, inspected the establishment of the petitioners on 17-11-75 and found that the total number of employees was only 16, out of whom 14 were borne on the weekly muster roll whereas 2 on the monthly roll. He also certifies to have signed the weekly register from 26.7.75 upto date. In view of this inspection note dated 17-11-75, the explanation of the petitioners with regard to the manner of workers engaged on 21-1-74 as mentioned in annexure A seems to be sufficiently plausible. 7. Mr. Ram Nandan Sahai Sinha, learned Standing Counsel for the Union of India appearing on behalf of the respondents, submitted that, even if the number of workmen employed by any establishment was 20 or more on a single day, the establishment would be governed by the provisions of the Act. On the contrary, learned Counsel for the petitioners urged that an establishment to fall within the purview of the Act, must employ more or less regularly, 20 or more persons. It was contended that the term 'employment' Itself connotes a sense of regularity and a casual worker employed for a very short duration on account of unforeseen contingencies or on account of factors over which the management of the establishment had no control, should not be considered and counted for the purpose of computing the number of workers employed by the establishment within the meaning of section 1 (3) (b) of the Act. Learned Standing Counsel, in support of his stand, at one stage, invited our attention to a Bench decision of the Madras High Court in the case of M/s East India Industries (Madras) Private Limited V. Regional Provident Fund Commissioner which was subsequently followed by a learned single Judge of the same High Court in the case of Ramanujam Press V. The Regional Provident Fund Commissioner Observations of Iyer, C.J., in the earlier Bench decision and those of Ismail, J., in the latter one did support the contention of the learned Standing Counsel. It must, however, in all fairness to him be said that subsequently he himself found out that the Madras Bench decision in East India Industries case (supra) had been overruled by the Supreme Court in the case of the Provident Fund Inspector V.T.S. Hariharan Learned Standing Counsel, therefore, withdrew his submission founded on the aforesaid two decisions of the Madras High Court. The Supreme Court decision does lend full support to the contention of learned Counsel for the petitioners. Dua, J., speaking for the Supreme Court in Hariharan's case (supra) has laid down the law In these terms: "Considering the language of Section 1 (3) (b) in the light of the foregoing discussion It appears to us that employment of a few persons on account of some emergency or for a very short period necessitated by some abnormal contingency which is not a regular feature of the business of the establishment and which does not reflect its business prosperity or its financial capacity and stability from which it can reasonably be concluded that the establishment can in the normal way bear the burden of contribution towards the provident fund under the Act, would not be covered by this definition. The word "employment" must, therefore, be construed as employment in the regular course of business of the establishment such employment obviously would not include employment of a few persons for a short period on account of some pressing necessity or some temporary emergency beyond the control of the company. This must necessarily require determination of the question of employment in a given case'; 8. This being the true legal position arid there having been no application of mind by respondent no. 2 to this aspect of the matter the impugned order as contained in annexure 3 must be held to be illegal on the materials on record. This must necessarily require determination of the question of employment in a given case'; 8. This being the true legal position arid there having been no application of mind by respondent no. 2 to this aspect of the matter the impugned order as contained in annexure 3 must be held to be illegal on the materials on record. It is necessary that in such cases the appropriate authority should approach the question from the legal point of view as laid down by the Supreme Court in the portion extracted above from the judgment in Hariharans case and also the peculiar facts of each case wherein such principles have to be applied. 9. In the result, therefore, this application must succeed. The order as contained in annexure 3 has to be quashed. The notice, however, issued to the petitioners cannot be said to suffer from any illegality at the present moment since there has been no final determination of the question of fact as to whether the petitioners establishment is one employing 20 or more persons. While quashing the order as contained in annexure 3, we give liberty to respondent no. 2 to proceed in accordance with law by granting fresh opportunity to the petitioners to present their case for his satisfaction that they do not regularly employ 20 or more persons so as to attract the provisions of the Act, The appellation is accordingly al owed but, in the circumstances, there shall be no order as to cost. Application allowed.