P. P. GUPTA, J. ( 1 ) BY this petition, the petitioners, M/s. Kweens Bar and Restaurant, Begum Bridge, Meerut, a registered partnership firm (hereinafter referred to as the "firm"), has prayed for a writ of certiorari quashing the order dated 13. 11. 1991 (Annexure V to the writ petition), passed by the respondent, the Regional Provident Funds Commissioner, Meerut. ( 2 ) THE facts of the case, in brief, are that the petitioner is a registered partnership firm and is engaged in the business of Bar and Restaurant since 1950. Since the very inception of the firm, it had less than 20 persons in its employment and the provisions of the Employees Provident funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the act) never applied to it. ( 3 ) ON 26. 5. 1988 and 21. 6. 1988 the Provident Fund Inspector visited the firm of the petitioner and recorded in his inspection note that 20 persons were employed in the firm. Again on 21. 6. 1989, he along with Sri S. B. Prajapati, E. O. , visited the petitioners firm for ascertaining the position of Accountant and recorded in his report that monthly payments were made to the accountant under the head consultance of Accountancy Charges. ( 4 ) ON 19. 7. 1988, the petitioner received: a letter (Annexure i to the writ petition) from the respondent that the Act became applicable to the petitioners firm with effect from 24. 5. 1988. After receiving this letter the petitioner made a representation dated 19. 9. 1988 (Annexure II to the writ petition) to the respondent. On 15. 5. 1989 the petitioner submitted another representation (Annexure III to the writ petition), giving full details. On 5. 8. 1989, the then Provident Funds commissioner, Meerut, perused all the materials on record and was satisfied that because the number of employees in the petitioners firm was less than 20, the provisions of the Act were not" attracted in the case of the petitioner. However, about 2 (1/2) year thereafter, on 19. 11. 1991, the petitioner received a copy of the order dated 13. 11. 1991 (Annexure V to the writ petition), passed by the respondent, holding that the provisions of the Act applied to the petitioners firm with effect from 24. 5. 1988. Aggrieved from this order the petitioner has filed the present petition. 11. 1991, the petitioner received a copy of the order dated 13. 11. 1991 (Annexure V to the writ petition), passed by the respondent, holding that the provisions of the Act applied to the petitioners firm with effect from 24. 5. 1988. Aggrieved from this order the petitioner has filed the present petition. ( 5 ) THE contention of the petitioner is that one S. K. Mukherjee got stroke of Paralysis and was lying ill since 10. 10. 1987. One Attar Singh was taken as a substitute in his place Attar Singh could not, therefore, be counted as an additional employee working in the petitioners firm on 26. 5. 1988. Regarding the payments made for consultancy and Accountancy Services, it was submitted that M/s. A. K. George and Company, Meerut, has never been an employee of the petitioners firm. This is a consultancy firm which renders skilled and specialised consultancy services to the petitioner as and when required and for which payments have been made to it. This firm could not, therefore, be treated as an employee of the petitioner either on 26. 5. 1988 or on 21. 6. 1988. ( 6 ) WITH the consent of the parties the petition was finally heard and is being disposed of at the stage of admission itself. ( 7 ) BY virtue of Sub-section (3) of Section 1 of the Act, the provisions of the Act apply to every establishment which is a factory and also to any other establishment employing 20 or more persons which the Central Government may, by notification in the Official Gazette, specify in this behalf. Hotels and Restaurants have been included in other establishment with effect from 30. 6. 1961 under Notification No. GSH 704, dated 16. 5. 61. Hence, the petitioners firm is an establishment to which the provisions of the Act would apply, if other statutory conditions are satisfied. ( 8 ) TO attract the applicability of Section 1 (3) (b) of the Act, the number of persons in the employment of an establishment should be minimum of 20 i. e. the establishment should have 20 persons on its Muster Roll and working regularly. ( 8 ) TO attract the applicability of Section 1 (3) (b) of the Act, the number of persons in the employment of an establishment should be minimum of 20 i. e. the establishment should have 20 persons on its Muster Roll and working regularly. ( 9 ) THE contention of the petitioner is that during the month of May or June, 1988 the petitioner had not employed 20 or more persons and, therefore, it did not fall within the purview of Section 1 (3) (b) of the Act. ( 10 ) THE firm was initially inspected by the Provident Funds Inspector on 26. 5. 1988 and 21. 6. 1988. Enquiry report of these inspections is dated 27. 6. 1988 (Annexure "ca-I" to the counter- affidavit. It appears that a subsequent inspection was also made on 21. 6. 1989, the, report of which is part of Annexure "ca-I". The enquiry report (Annexure CA-I) mentions that 20 persons were found in the employment of the petitioners firm both in the months of May and june, 1988. Never before the number has exceeded 18, at least in the years 1985, 1986, 1987 and also till April, 1988. According to this report, the number of employees found in the employment of the petitioners firm were both in the months of May and June, 1988. ( 11 ) IN para 3 of the counter-affidavit, filed by the respondent, it was submitted that from checking of the record, during inspection, it was found that the petitioner was employing 20 persons on 24. 5. 1988, besides one Accountant names of these 20 persons have nowhere been disclosed. A true copy of the inspection report has been filed as Annexure CA-I to the counter-affidavit. This stand of the respondent is against its own enquiry report (CA-I ). It is mentioned in it that 20 persons were found in the employment of the petitioner, both in the months of May and June, 1988. The purpose of visit on 21. 6. 1989 again was only to ascertain the position of the Accountant. The report dated 21. 6. 89 itself speaks: "i visited the above establishment along with Shri, S. B. Prajapati, E. O. on 21. 6. 1989 for ascertaining the position of Accountant. " So the Accountant was not besides those 20 persons, who were allegedly found in the employment of the firm both on 26. 5. The report dated 21. 6. 89 itself speaks: "i visited the above establishment along with Shri, S. B. Prajapati, E. O. on 21. 6. 1989 for ascertaining the position of Accountant. " So the Accountant was not besides those 20 persons, who were allegedly found in the employment of the firm both on 26. 5. 1988 and 21. 6. 1988 as has been recorded in the respondents own enquiry report (Annexure CA-I ). Hence the contention of the respondent to the contrary, as contained in para 3 of the counter-affidavit, cannot be accepted as correct. ( 12 ) IT may also be mentioned here that in para 8 of the writ petition, the petitioner has given names of 18 persons in its employment on 26. 5. 1988. If the Accountant and the substitute are also taken into consideration, the number comes to 20 which exactly tallies with the number of 20, as recorded by the Inspector in his enquiry report (CA-I) on the basis of the inspections made by him on 26. 5. 1988 and 21. 6. 1988. Thus there remains no factual dispute regarding this figure of twenty between the parties. ( 13 ) THE contention of the petitioner is that one of its employees, viz. S. K. Mukherjee, got a paralytic stroke and became invalid. Attar Singh was taken as a substitute for him, who was found working with the petitioners firm on 26. 5. 1988, when the Provident Funds Inspector visited the firm. Attar Singh cannot, therefore, be said to be regularly working with the petitioner in the course of its business. He was employed for a short period which was necessitated because of the contingency as S. K. Mukherjee had fallen ill and was rendered unfit to work. In this case, it seems to be conceded that S. K. Mukherjee had fallen sick due to Paralysis and was rendered unfit to work. Annexure III to the writ petition is a representation made by the petitioner to the regional Provident Funds Commissioner, Meerut and along with it a medical certificate dated 13. 10. 1987 has been attached showing that S. K. Mukherjee was seriously ill and was not in a position to join duties. Annexed therewith are also the letters of appointment dated 1. 1. 1988 and 1. 3. 10. 1987 has been attached showing that S. K. Mukherjee was seriously ill and was not in a position to join duties. Annexed therewith are also the letters of appointment dated 1. 1. 1988 and 1. 3. 1988 issued to Attar Singh in which it is clearly mentioned that he is being employed as a temporary substitute for one month. There is also a copy of memorandum of settlement showing that S. K. Mukherjee suffered a paralytic stroke on 10. 10. 1987 and was hospitalised in a Nursing home since then. He submitted his resignation which was accepted by the petitioner and the matter regarding terms and conditions was mutually settled between him and the petitioner. It is now to be seen whether the employment of Attar Singh, in the circumstances of the case, would be an employment for the purpose of determining the number of persons employed, as contemplated by Section 1 (3) (b) of the Act. ( 14 ) WHILE dealing with this question, the Supreme Court, in the case of P. F. Inspector Guntur v. T. S. Hariharan: (1971) 1 L. L. J. 416 held: "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 for 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 passing necessity or some temporary emergency beyond the control of the company". ( 15 ) THEREFORE, the correct legal position is that employment for short duration by itself may not make it casual employment. Whether such employment is casual will depend on the nature and facts of each case. ( 15 ) THEREFORE, the correct legal position is that employment for short duration by itself may not make it casual employment. Whether such employment is casual will depend on the nature and facts of each case. But if an employee is employed for a short period which is necessitated because of some emergency or contingency such as where the regular employee has gone on leave or has fallen sick or has been incapacitated to work for some time, employment of such employee cannot be said to be covered under the purview of Section 1 (3) (b) of the Act and he is to be treated as a casual employee not covered by the Act. Applying above principles to the facts of the present case, I find that S. K. Mukherjee, who was in the regular employment of the petitioner, got a Paralytic attack and was seriously ill since 10. 10. 87. It was in his place that one attar Singh was employed as his substitute, purely on temporary basis, which term was subsequently extended. His tenure was, therefore, of a short and casual nature which was necessitated because of the illness of S. K. Mukherjee. Therefore, the employment of Attar Singh was not covered under the purview of Section 1 (3) (b) of the Act and so he was to be treated as a casual employee. ( 16 ) IN a similar case of Eastern Arts Corporation v. S. P. Mehrotra and Anr. 1986 LIC 1402 the delhi High Court has held that employment of a worker for 16 days in leave vacancy of regular worker cannot be said to be covered under the purview of Section 1 (3) (b) of the Act. ( 17 ) ON these facts and circumstances, the respondent has wrongly included Attar Singh as a regular employee working with the petitioners firm. Therefore, if this employee, viz. Attar singh, is excluded, tile number of employees found working with the firm both on 26. 5. 1988 and 21. 6. 1988 comes to 19, which is less than 20. Since the minimum numerical strength of 20 was not satisfied in the case of the petitioner, the provisions of the Act have wrongly been made applicable to it by the respondent. The impugned order dated 13. 11. 1991, which was passed about 2 (1/2) years after the completion of enquiry, cannot, therefore, be sustained. Since the minimum numerical strength of 20 was not satisfied in the case of the petitioner, the provisions of the Act have wrongly been made applicable to it by the respondent. The impugned order dated 13. 11. 1991, which was passed about 2 (1/2) years after the completion of enquiry, cannot, therefore, be sustained. ( 18 ) THE position of M/s. A. K. George and Company, Accounts Consultants who have allegedly provided Accounts Consultancy Services to the petitioner and have received regular payments, is not free from doubt. However, in view of the above finding that the number of employees both on the material dates in May and June, 1988 was less than 20, it does not seem necessary to go into the question whether the said Company can be said to be covered under the purview of section 1 (3) (b) of the Act. In view of the above discussions, the writ petition is allowed and the impugned order dated 13. 11. 91, passed by the respondent, (Annexure V to writ petition), is set aside with no order as to costs.