P. P. BOPANNA, J. ( 1 ) THE petitioner has challenged the correctness of the order made by the Regional provident Fund Commissioner in Karnataka, who is respondent No. 1 herein under the provisions of Section 7 A of the employees' Provident Fund and miscellaneous provisions Act 1952 (in short the Act ). By this order the Commissioer directed the petitioner to pay certain amounts aggregating to Rs. 7910. 10p. towards the various accounts maintained under the Act being the contribution due from the petitioner in respect of the employment of certain persons who were working under its establishment at the relevant time. ( 2 ) PURSUANT to the notice issued by the commissioner under Section 7-A of the act, the petitioner appeared before the commissioner and contended inter alia that though the provisions of the Act were applicable to its establishment, the employees in question were not covered by the Act in as much as they were 'excluded employees' as defined in paragraph 2 (f) (iv) of the Scheme known as "the Employees' provident Fund Scheme, 1952" (in short the scheme) framed under the Act. In that scheme, an excluded subject is defined as:- i) an employee, who having been a member of the Fund, withdrew the full amount of his accumulations in the Fund under clause (a) or (c) of sub-paragraph (c) of sub-paragraph 69. ii) an employee whose pay at the time he is otherwise entitled to become a member of the Fund, exceeds one thousand and six hundred rupees per month. Explanation:- 'pay' includes basic wages with dearness allowance, "retaining allowance (if any) and cash value of food concession admissible thereon. iii ). . . . . iv) an apprentice. The explanation to para-2 (f) (iv) of the scheme reads:"explanation - An apprentice means a person who, according to the certified standing orders applicable to the factory or establishment, is an apprentice, or who is declared to be an apprentice by the authority specified in this behalf by the appropriate Government". According to the petitioner, the employees in question, who were employed as cleaners, room boys, cooks and in other manual jobs were apprentices and till they finished their term of apprenticeship they were not entitled to the benefit of the scheme and therefore they were 'excluded employees' within meaning para-2 (f) (iv) of the scheme. According to the petitioner, the employees in question, who were employed as cleaners, room boys, cooks and in other manual jobs were apprentices and till they finished their term of apprenticeship they were not entitled to the benefit of the scheme and therefore they were 'excluded employees' within meaning para-2 (f) (iv) of the scheme. The Commissioner on a consideration of the various materials placed before him came to the conclusion that the very nature of the employment of these persons negatived the case of the petitioner that they were apprentices because the work of cleaning, supplying, cooking and washing etc, would not require any expert training or apprenticeship under any trained hands according to him these employees were only called 'apprentices' for the purpose of avoiding the application of the Scheme. Certain decisions produced before the commissioner were also considered by him and he found that these decisions were not applicable to the facts of this case. The decision on which the petitioner particularly relied was the decision of the Division bench of Gauhati High Court and M/s. KELVIN CINEMA GAUHATI Vs. STATE of ASSAM AND ANOTHER (1973 (2) L. and 'i. C. 963 ). This was considered by the commissioner and he found that the decision did not correctly lay down the law. Accordingly he made the impugned order determing a sum of Rs. 7910. 10 as the contribution due from the petitioner under the above said scheme. ( 3 ) A number of contentions were taken by the learned Counsel for petitioner in support of its challenge to the impugned order. I do not think that it is necessary for me to go into those contentions since in my view this petition has to be allowed on the short ground, that in the light of two earlier decisions of this Court, the impugned order was not preceded by a proper enquiry as required under para-26b of the Scheme framed under the Act. The said para reads as under: para-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 no decision shall be given unless both the employer and the employee have been heard". ( 4 ) IT is not in dispute that the petitioner is covered by the provisions of the Act. But the petitioner's grievance is that the employees in question being apprentices a question arose whether those employees were entitled to or required to become or continue as members' of the Scheme and therefore a decision on this question should have been given by the Commissioner only after notices to both the petitioner and his employees and after hearing them. It is not in dispute that the employees were not served with any notices nor were they heard by the Commissioner before he made the impugned order. That such an enquiry is necessary under para-26b of the scheme, does not admit of any doubt in view of the two decisions of this Court rendered in W. P. . 1146/71 (DD 24. 1. 1974) which was followed by this Court in W. P. . 2825/1974 (DD 9. 1. 1976 ). The contention raised by the Department in the first writ petition was rejected by this Court on the ground that under para-26-B both the employer and the employees should be heard by the Commissioner and it was open to employer to take the plea that though he was served by the Commissioner, the fact of non-service of notice on the employees would invalid at, the hearing under para-26-B. ( 5 ) THIS view of the learned Single Judge was followed by this Court in W. P. . No. 2825/74 which was disposed of on 9. 1. 1976. However, it is contended by the learned standing Counsel for the Central Government that the enquiry under para-26-B would become necessary only if the petitioner proved that the employees in question were 'excluded employees'. In view of the finding of the Commissioner under Section 7a that these persons were not excluded employees, no enquiry under para-26-B was necessary. Such a plea was not taken by the Department in the earlier two writ petitions and therefore, I will have to consider the correctness of this plea in these proceedings. ( 6 ) THAT no appeals were filed challenging the orders made by this Court in the earlier two writ petitions wherein paragraph- 26b of the Act came up for consideration is indicative of the fact that those decisions were correctly rendered by this Court. ( 6 ) THAT no appeals were filed challenging the orders made by this Court in the earlier two writ petitions wherein paragraph- 26b of the Act came up for consideration is indicative of the fact that those decisions were correctly rendered by this Court. However, the plea whether the petitioners in order to invoke the provisions of paragraph 26b should prove in the first instance that the employees in question were 'excluded employees' was not taken in those petitions. Even then, I am of the view that those decisions do not require reconsideration since on a closer scrutiny of the relevant provisions of the Act and the scheme a definite distinction is made between the 'exempted employees' and the 'excluded Employees'. In the Act an 'exempted employee' has been defined but not an 'excluded employee'. An 'exempted employee' is an employee who is covered by a Scheme which is exempt from the provisions of Section 17 of the Act. The words 'excluded' employee are not found in the definition provisions of the Act but it is only found in the definition provisions of the Scheme. If this aspect is kept-in-view, it is clear that a determination under section 7a primarily relates to the applicability or otherwise of the Act to the establishment in question and the determination under paragraph-26b of the Scheme relates to the right or eligibility of a particular employee to be covered by the provisions of the Scheme. The Act may be applicable to the establishment but a particular employee may not be entitled to become a member of the Scheme or the managment in a particular case may not be liable to make him a member of the Scheme. That is the very reason the 'excluded employee' does not figure under the 'definition' provisions of the Act but he appears in the 'definition' provisions of the Scheme. ( 7 ) IN my view paragraph-26b must also be read with the provisions of paragraph-26 which gives an indication as to the doubt that may arise under paragraph-26b. Paragraphs 27 (1) (a), (b) and (c) deal with the applicability of the provisions of the scheme. Paragraph 26 (1) (a) refers to an employee other than an Excluded employee. Paragraph-26 (b) also refers to an employee other than the excluded employee. Paragraph 26 (ii) also refers to an employee other than the excluded employee. Paragraphs 27 (1) (a), (b) and (c) deal with the applicability of the provisions of the scheme. Paragraph 26 (1) (a) refers to an employee other than an Excluded employee. Paragraph-26 (b) also refers to an employee other than the excluded employee. Paragraph 26 (ii) also refers to an employee other than the excluded employee. Paragraph-26 (iii) refers to an excluded employee and his right to become a member of the Scheme or ceasing to be such a member. Therefore, paragraph 26b which relates to resolution of doubts on the question 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, necessarily take in its sweep a determination of the incidental question whether an employee is an 'excluded employee' or no. the plea of the standing Counsel means that he is putting the cart before the horse. 'if the Scheme and the Act are read together there is a distinction between the determination of liability under Section 7a of the Act and the determination of the question under paragraph-26b of the Scheme. The same view is taken by the Kerala High Court in a recent decision in SASIDHARAN v. THE regional PROVIDENT FUND COMMISSIONER, TVM and ANOTHER (1982 lab. I. C. 597 ). Though this point was not taken up before the Kerala High Court, the conclusion reached by the Kerala High court is in accordance with the view taken by this High Court in its earlier decisions. The impugned order is also liable to be quashed on another substantial ground. The commissioner having found that the workmen in question were not apprentices he should have further found the liability of the petitioner towards the contributions due from it in regard to each workman whom it had treated as an apprentice. In the impugned order the Commissioner has called upon the petitioner to remit a lumpsum amount of Rs. 7910. 10. It is not understood on what basis the Commissioner has arrived at this figure. The Annexure to the impugned order does not disclose any calculation employee-wise for coming to the conclusion that the petitioner was liable in a sum of Rs. 7910. 10 towards the various accounts mentioned in the said order. 7910. 10. It is not understood on what basis the Commissioner has arrived at this figure. The Annexure to the impugned order does not disclose any calculation employee-wise for coming to the conclusion that the petitioner was liable in a sum of Rs. 7910. 10 towards the various accounts mentioned in the said order. It cannot be disputed that the Commissioner was acting in a quasi-judicial capacity and the impugned order not only saddlen the petitioner with certain financial liability but also with certain penal consequences if it does not comply with the same. Therefore, it was incumbent on the Commissioner to make a determination of the quantium of ifability of the petitioner as against each employee sought to be covered by the scheme. However, I make it clear that I have not expressed any opinion as to the correctness or otherwise of the finding of the Commissioner that these workmen were not apprentices as defined under the scheme. It is a matter to be considered by the Commissioner after holding an enquiry as required under Paragraph-26b of the scheme. Hence, this Writ Petition is allowed, the impugned order is quashed and the matter is remitted to the Commissioner for fresh disposal of the case of the petitioner after holding an enquiry in accordance with law. Parties to bear their own costs. --- *** --- .