Judgment :- 1. The points that arises for consideration in the original petition are: (1) For the determination of the eligibility of an employee for Provident Fund membership under Para.26-B of the Employees' Provident Funds Scheme, 1952, should notice be given to the employee even if the employer is ex parte; and (2) Before it is decided whether an employee is eligible for Provident Fund Membership can a notice be issued under S.7A of the Employees' Provident Funds Act, 1952, for short the Act, for the determination of the amounts due from the employer by way of subscription on the basis that the employee was also enrolled as a member and will the order passed under S.7-A make the employer liable. The petitioner was the receiver of the C C. Estate, Calicut at the time when the orders impugned in this original petition were issued. Ext. P1 is the proceedings under Para.26-B of the Employees' Provident Funds Scheme, 1952, for short the Scheme, of the 1st respondent-Regional Provident Fund Commissioner. Ext. P3 is the demand notice issued under the Kerala Revenue Recovery Act, 15 of 1968 in pursuance of the revenue recovery steps taken against the petitioner for the realisation of the amounts alleged to be due from the petitioner. Ext. P-4 is a reply sent by the Ist respondent to the petitioner's letter dated 4-1-1979 making it clear that legal action cannot be dropped without the petitioner remitting the dues demanded: 2. A counter-affidavit has been filed by the 1st respondent-Commissioner. Along with the counter-affidavit Exts R-1 to R-4 are also produced. Ext. R-1 is a notice issued under S.7-A of the Act. Ext. R-3 is the proceedings of the Ist respondent in the enquiry held under S.7-A of the Act determining the amount due from the petitioner. Ext. R-4 is only a copy of Ext. P-4 produced along with the original petition. In Para.4 of the counter-affidavit it is stated: "Since the petitioner kept away from the proceedings held pursuant to Ext. R-1 which resulted in Ext P-1. it was rightly assumed that the petitioner had no objection in declaring the II employees eligible for Provident Fund and so the employees themselves were not summoned for personal bearing." 3. Subsequent to the filing of this original petition, in view of the order passed by this Court on C.M.P. 8199 of 1979 the petitioner remitted Rs. it was rightly assumed that the petitioner had no objection in declaring the II employees eligible for Provident Fund and so the employees themselves were not summoned for personal bearing." 3. Subsequent to the filing of this original petition, in view of the order passed by this Court on C.M.P. 8199 of 1979 the petitioner remitted Rs. 2259 85 on 12-7-1979. It is not disputed that the arrears still due from the petitioner is the subscription from 1-3-1975 in respect of the H employees who were found eligible for membership as per Ext. P-1 order dated 20-7-1978. The question is whether the petitioner can be made liable for the above arrears on the basis of Ext. P-1 order. 4. Para.26-B of the Employees' Provident Funds Scheme, 1952, reads. "26-B. Resolution of doubts. If any question arises whether an employee is entitled or required to become or continue as a member, or as regards the date from which he is so entitled or required to become a member, the decision thereon of the Regional Commissioner shall be final: Provided that do decision shall be given unless both the employer and the employee have been beard." What the 1st respondent-Commissioner has done by Ext P-1 order is to determine that the 11 employees mentioned in the order are eligible for provident fund membership. Admittedly, no notice was issued to the employees concerned before Ext P-1 decision regarding their eligibility was taken by the Commissioner. It is true that notice was issued to the petitioner employer and he remained ex parte. But the question is for a valid determination under Para.26B whether an employee is eligible for membership of the Provident Fund, should not the decision be taken with notice to the employee. It goes without saying that the Commissioner has the right to decide that an employee is not eligible for membership. Whether an employee is eligible for membership or not is a matter which has to be decided after bearing the employee and his employer. Again, at the time of issue of the notice the Commissioner will not be aware whether the employer will appear and contest the matter. So, simply because the employer happened to remain ex parte it cannot be said that no notice to the employee was necessary before a decision is taken under Para.26-B. So. Again, at the time of issue of the notice the Commissioner will not be aware whether the employer will appear and contest the matter. So, simply because the employer happened to remain ex parte it cannot be said that no notice to the employee was necessary before a decision is taken under Para.26-B. So. it cannot be said that in a case where the employer remained ex parte no notice is necessary to the employee before the determination of the eligibility under Para.26-B. Not only that, the proviso to Para.26B insists that no decision shall be taken unless both the employer and the employee are heard As, in this case, no notice was given to the employees, Ext. P-1 order determining the eligibility of the employees has been passed in contravention of Para.26B of the Scheme. 5. The next question is whether before determining the eligibility under Para.26B of the Scheme, can notice be issued under S.7 A of the Act for the determination of the amounts due from the employer by way of subscription including that for the employees whose eligibility has yet to be determined. It goes without saying that before an employee is found eligible for membership of the provident fund the employer cannot be fastened with liability for his subscription. Not only that, under S.7A notice can be issued only to determine amounts due from the employer at the time of the issue of the notice. In other words, a determination cannot be had of amounts that become due from the employer after the issue of the notice under S.7-A of the Act. The determination under S.7A has to be after giving the employer a reasonable opportunity of representing his case as insisted by sub-section (3) of the section. If under S.7A future liabilities on the date of issue of the notice also can be determined, neither the notice can refer to those liabilities nor the employer will get an opportunity to contest those liabilities. So, by a determination under S.7 A the employer cannot be made liable for subscription for employees who are yet to be found eligible for membership of the provident fund. In this case, it was by Ext. P1 order dated 20-7-1978 that the 11 employees in question were found eligible for membership of the provident fund. Ext. RI notice under S.7A of the Act was issued as early as 16-5-1978. In this case, it was by Ext. P1 order dated 20-7-1978 that the 11 employees in question were found eligible for membership of the provident fund. Ext. RI notice under S.7A of the Act was issued as early as 16-5-1978. So, it goes without saying that by Ext. P4 (same as Ext. R4), the Commissioner cannot act under S.7A of the Act include in the amount determined the subscription due from the employer in respect of the 11 employees who were found eligible for provident fund membership only by his order dated 20-7-1978. So, it goes without saying that a fresh determination under S.7A has to be made by the Commissioner after passing fresh orders under Para.26B of the Scheme in accordance with law. 6. In the result, Exts. P-1, P-3 and P-4 to the extent it relates to the liability under Ext. P-1 are set aside. The original petition is allowed to the extent indicated above. There will be no order as to costs. Allowed.