JUDGMENT 1. - Assailing the order dated 23rd January. 1989 of the Regional Provident Fund Commissioner Rajasthan Jaipur the learned counsel for the petitioner has raised a two fold contention. Firstly it has been contended that the provisions of the Employees Provident Fund and Misc. Provisions Act 1952 (for short the Act) and the scheme framed thereunder are not applicable to the petitioner and secondly that during the period February 1969 to April. 1971 the petitioner never employed 20 or more persons and therefore it could not be governed under the provisions of the Act. 2. The petitioner claims to be an association registered under the provisions of Registration of Societies Act 1958 and its membership is open for the bus- operator/owners of the Bharatpur Region. The petitioner union engages the buses and their services are utilised for achieving the objects as contained in the constitution of the union and the number of employees never exceeded 20 and the salaries to the aforesaid employees are paid from the fund which is collected by the Union from its members by way of subscription which is charged from each bus according to its trips. The aims and objects of the foresaid collection is to meet out the expenditure which the aforesaid union incurs in providing the facilities to the operators as well as the travelling public and the object of the aforesaid Union is not to earn the profit or to earn something out of the aforesaid subscription. Therefore the profit motive was absolutely missing from the activities of the aforesaid petitioner union. A notice under section 7-A of the Act dated 13th April 1973 (Annex.2) was issued to the petitioner union wherein the petitioner union was informed that it had failed to furnish the prescribed returns required to be submitted in respect of the establishment of the petitioner union and that it was governed under the Act and the scheme framed therein from February 1969 to April 1971. Prior to the aforesaid notice under section 7-A the petitioner union was addressed a communication Annex. 1 intimating the petitioner union that the union is covered under the provisions of the Act w.e.f. February 1969 and a code No. was also allotted to it. The petitioner replied to the aforesaid notice wherein the coverage was disputed under the provisions of the Act. The Regional Provident Fund Commissioner under its order Annex. 1 intimating the petitioner union that the union is covered under the provisions of the Act w.e.f. February 1969 and a code No. was also allotted to it. The petitioner replied to the aforesaid notice wherein the coverage was disputed under the provisions of the Act. The Regional Provident Fund Commissioner under its order Annex. 4 dated 17th October. 1973 held that the petitioner union was covered under the provisions of the Act and the scheme framed thereunder also called the union to pay Rs. 12612.60/- as contribution from time to time from February 1969 to 1971. The aforesaid order was challenged by the petitioner union in this court in D. B. Civil Writ Petition No. 1353/1981 Motor Bus Union Vs. Regional Provident Fund Commissioner . This court in its order dated 24th September. 1985 so far as coverage under the Act and the scheme framed therein is concerned did not interfere and held that the petitioner union was covered. But so far as coverage of the petitioner from February. 1969 to April. 1971 is concerned the court held that proper opportunity has not been granted to the petitioner union to lead evidence remanded the case to the Regional Provident Fund Commissioner and observed that "the petitioner is entitled to bring to the notice of the respondents the note sheet put by Shri J. M. Pandya the then Provident Fund Commissioner which is a part of the record." So far as the period subsequent to April 1971 is concerned. The court ultimately remanded the case to the Regional Provident Fund Commissioner with a direction that the petitioner union be given an opportunity to lead fresh evidence and the Regional Provident Fund Commissioner would also consider the effect of the note-sheet put by Shri J. M. Pandya and decide the liability afresh according to law. As regards period subsequent to April 1971 if there is any discrepancy in the calculation the same would also be decided by explaining such discrepancies to the petitioner union. 3. After the remand as aforesaid of the case the matter came before the Commissioner and the Commissioner gave opportunity to the petitioner union to lead evidence but despite the fact that time was granted to the petitioner union the petitioner union failed to lead evidence. 3. After the remand as aforesaid of the case the matter came before the Commissioner and the Commissioner gave opportunity to the petitioner union to lead evidence but despite the fact that time was granted to the petitioner union the petitioner union failed to lead evidence. It is therefore, clear that despite opportunity being granted to the petitioner union after remand it did not lead evidence to show that it did not employ 0 or more persons during February 1969 to April 1971. The learned Provident Fund Commissioner took note of the note-sheet prepared and referred to by the learned Single Judge in the order referred to earlier. In the aforesaid note on 30th September. 1974 it was recorded by the then Regional Provident Fund Commissioner as under : "Shri Gopaldas Goyal, President of Union appeared today. During my last visit to Bharatpur I had seen the records. Accordingly it was pressed and reasonably so that since there were less than 20 employees normally in 1969 and 1970. the Act should be applied only from 4/71 when 21 persons were employed. There is force in this argument and on PFI's confirmation we may examine it. Shri Goyal has also prayed to keep the recovery certificate in abeyance as exparte assessment was made. We cannot accept this. However he may pay up the dues for the period involved and Collector will be advised suitably." 4. After taking note of the aforesaid note-sheet as directed by the learned Single Judge in its order referred to earlier an order was made. 5. It will therefore be clear that after considering the note of Shri Goyal (sic Pandya) the learned Provident Fund Commissioner and considering the other materials on record the Commissioner came to a conclusion that from February 1969,20 persons were employed by the petitioner union. The accountant as stated earlier had confirmed that there were 20 employees. A perusal of Annex. R-1/2 dated 31.7.1972 will show that the aforesaid document was signed by Bhanwar Swaroop for Secretary of the petitioner union. It is mentioned therein that as 20 employees in February 1969 were employed. A copy of salary bill is also enclosed which is marked as Annex. R-l/2. A perusal of that will show that 20 persons were employed in February 1969. It is mentioned therein that as 20 employees in February 1969 were employed. A copy of salary bill is also enclosed which is marked as Annex. R-l/2. A perusal of that will show that 20 persons were employed in February 1969. The contention of learred counsel for the petitioner union is that so far as persons employed at serial No. 18.19 & 20 are concerned each of them was paid Rs. 20/-. 10/- & 10/- respectively as part- time employees therefore they cannot be counted in the figure 20. Learned counsel for the petitioner referred to the case of Ratan Lal Vs. Regional Provident Fund Commissioner New Delhi Lab I C. 1977 Page 1766. The Supreme Court in para 12 said that it will depend on facts of each case as to whether the employee is employed for wages in any kind of work mainly for the work of establishment. The court said -examination of the definition of an employee is given under section 2(f) of the Act which would show that the persons employed in the establishment for wages in any kind of work manual or otherwise in or in connection with the work of an establishment and who gets his wages directly or indirectly from the employer and includes any person employed by or through a contractor in or in connection with the work of the establishment." The court again said that the employee in question must either be working in the establishment or working in some manner in connection with the work of the establishment; this limits the type of employee who is covered by the Act. The court further said that every employee does not work necessarily in an establishment or in connection with the work of an establishment. The Supreme Court then examined individual employees and said that so far as sweeper is concerned he is a municipal employee and who is paid a sum of Rs. 3/- monthly for the purpose of cleaning the front of the shop. The Sweeper is doing the Municipal Corporation's work which is unconnected with the establishment or the work of the establishment and he is not covered by the definition. He is an employee of Municipal Corporation. 3/- monthly for the purpose of cleaning the front of the shop. The Sweeper is doing the Municipal Corporation's work which is unconnected with the establishment or the work of the establishment and he is not covered by the definition. He is an employee of Municipal Corporation. Taking into consideration the case of the Chowkidar it was said that he appears to be a community chowkidar who neither works in the establishment nor in connection with the work of the establishment. These two persons sweeper and chowkidar appear to be getting paid Bakshish for doing something they are already paid to do by somebody else. Taking the case of driver the court said that lastly the salary paid to the driver is debited to the 'car expense account'. As the petitioner is an individual he was entitled to debit his personal expenses to the car account, or deal with his accounts in any way he likes. Can it be said that this driver is working in the establishment or in connection with the work of the establishment ? The court answered in negative and said that it does not follow that a driver employed to drive a car for the petitioner's purpose can be termed to be an employee of the establishment which the petitioner happens to own. The court also added that it may be different case if the establishment belongs to a limited company or to a partnership firm. In such a case the driver could either be the employee of the person he drives or an employee of the company if he happens to be an employee of the company he would be deemed to be working in the establishment or in connection with the work of the establishment. A similar question was examined by this court also in the case of Railway Employees Cooperative Banking Society Ltd. Vs. the Union of India and others. 1980 Lab. 1. C. 1213. The Division Bench of this court said that where the establishment i. e. the Cooperative Banking Society engaged a sweeper who worked twice or thrice a week a night watchman who kept watch on other shops in the locality also and a gardener who came for work ten days in a month they were employees and in taking the view relied on the case of The Ahmedabad Mfg. & Calico Co. Pvt. Ltd. Vs. & Calico Co. Pvt. Ltd. Vs. Ramtahal & others 1972 Lab. I. C. 864 . In the instant case it has been stated that three employees were paid Rs. 20/- & Rs. 10/- and Rs. 10/- respectively. It is not mentioned in Annex R-1/2 that as to what duties were discharged by them As also said earlier the petitioner union did not produce any record to show as to what was the nature of their employment. The Secretary of the Union had given out that there were 20 employees and therefore the Regional Commissioner on the basis of the material available to it came to the conclusion that there were 20 employees. This finding cannot be said to be perverse and cannot be interfered with. 6. So far as the question of coverage of the petitioner union under the scheme framed therein is concerned the coverage of the petitioner union has already been decided by the earlier decision of this court. It is also clear that the petitioner union said that it is ready to pay the contribution w e.f. May 1971. Therefore it is no longer open to the petitioner union to say that it is not covered under the provisions of the Act. 7. Coming to the next contention of the learned counsel for the petitioner that coverage cannot be retrospective and therefore the petitioner could not have been covered from February 1969 to February 1973 with retrospective effect. Aluminium Corporation of India Ltd v. R. P. F. Commissioner AIR 1958 Cal. 570 wherein the court said that the establishment cannot be covered with retrospective effect. Again in the case of (5) AIR 1963 Mad. 455 a similar view was taken by the Madras High Court. In the case of (6) M/s. Inter State Transport Agency Sitamar V/s. R. P. F. Commissioner Patna 1983 Lab. I.C. 940 a division bench of the Patna High Court considered the matter and held that there is no limitation for initiating proceedings either under section 7-A or 14-B of the Employees Provident Funds Act nor more delay in initiating the proceeding amounts to waiver and/or condonation. The court further said that there is no need for filing any application under Section 7-A of the Employees' Provident Funds Act. It is the duty of the establishment to deduct contribution suo moto. The coverage of an establishment is automatic. The court further said that there is no need for filing any application under Section 7-A of the Employees' Provident Funds Act. It is the duty of the establishment to deduct contribution suo moto. The coverage of an establishment is automatic. It was also said that the authorities under the Act are neither civil courts even though the said authorities may have to act judicially and even follow some of the procedure laid down under the C. P. C. there can be no waiver of a statutory right. The court further said t fat no order by the authorities is necessary that any establishment is covered under the Act or not. In my opinion in the present case there is no question of retrospective application of the Act and scheme framed therein. The application of the Act is automatic and no order to the effect is necessary to be made by the Regional Provident Fund Commissioner. While departing with the case it may be mentioned that remedy is always available under Section 19-A of the Act to approach to the Central Government. 8. Consequently, I find no merit in this writ petition and the same is dismissed summarily with no order as to costs.Petition dismissed. *******