JUDGMENT 1. RULE. Mr. Niral Mehta, the learned advocate appearing for the respondent waives service of rule. Considering the facts of the case, the matter is taken-up for final hearing. 2. THE petitioner has filed this petition under Articles 226 and 227 of the Constitution of India, praying for quashing and setting aside the order dated 16th April 2010 passed by the Appellate Tribunal in ATA 469(5)/2007 and the order dated 16th May 2007 passed by the learned Assistant Provident Fund Commissioner under Section 7-A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as, 'the Act'). This Court issued notice on 30th July 2010. Pursuant to the said notice, Mr. Niral Mehta, the learned advocate appears on behalf of the respondent. 3. IT is the case of the petitioner that the petitioner had a factory situated at Odhav, Ahmedabad. The petitioner was engaged in manufacturing of electrical motors and monoblocks/centrifugal pumps. The petitioner was covered under the provisions of the Act and the petitioner had been allotted Code No.GJ/1844. The petitioner was incurring heavy losses, lost financial sub-stratum and, therefore, it was closed after following due procedure as per the provisions of the Industrial Disputes Act, 1947 and after obtaining permission of closure from the Labour Commissioner. 4. THE reference challenging the closure being Reference (I.T.) No.49/1993 was decided in favour of the petitioner. THE factory of the petitioner was lying idle and no manufacturing or industrial activity whatsoever was carried on by the petitioner and hence the petitioner wrote a letter dated 1st February 1993 informing the Regional Provident Fund Commissioner regarding closure of the unit and requested to absolve the petitioner from discharging its duties and obligations under the Act. It is also the case of the petitioner that despite the fact that the petitioner wrote a letter way back on 1st February 1993 for about 13 years the respondent had not taken any action and for the first time on 11th September 2006 the notice was issued under Section 7-A of the Act for non-deduction of provident fund contribution in respect of the employees of the petitioner Company. THE petitioner appeared before the respondent and filed reply. THE petitioner specifically stated in the said reply that initially two departments of the factory were closed after obtaining permission from the Labour Commissioner on 23rd July 1992. THE petitioner appeared before the respondent and filed reply. THE petitioner specifically stated in the said reply that initially two departments of the factory were closed after obtaining permission from the Labour Commissioner on 23rd July 1992. Since the unit had continued to incur heavy losses, the entire factory of the petitioner was closed with effect from 23rd January 1993. Despite this reply, the Assistant Provident Fund Commissioner passed the order dated 16th May 2007 demanding payment of Rs.1,46,937=00. Being aggrieved by the said order, the petitioner preferred Appeal under Section 7-I of the Act before the Appellate Tribunal, which also came to be dismissed. Hence, the present petition is filed by the petitioner. 5. MR. Yogesh Dev, the learned advocate appearing for the petitioner has submitted that neither the Assistant Provident Fund Commissioner nor the Appellate Tribunal has considered the fact that the petitioner-establishment was closed with effect from 1st February 1993. Once the establishment is closed, the Provident Fund Act would not apply to such closed establishment. He has further submitted that the fact regarding closure of the unit was accepted by the Appellate Tribunal. However, it was observed that, "...the claim relates to prior to that date as evident from the order of the Authority and the claim relates to non-payment for two watchman." He has submitted that these two watchmen and one care-taker were retained only with a view to safeguard the properties of the company and hence, simply on that count, it cannot be said that the establishment was in existence. 6. HE has further submitted that while confirming the order of the Assistant Provident Fund Commissioner, the Appellate Tribunal has referred to the decision in the case of Regional Provident Fund Commissioner v/s. Rattan Enterprises [1986(68) FLR 227]. However, the said decision is in respect of a closed factory. Mr. Dev relied upon the decision of the Allahabad High Court in the case of Jai Krishna Agarwal and another v/s. Regional Provident Fund Commissioner and others [1986(53) FLR 471], wherein the Allahabad High Court has observed that, "...In order that an establishment may attract the application of the Employees' Provident Funds and Miscellaneous Provisions Act it is essential that the factory must be engaged in any manufacturing activity at the relevant time. It is not disputed that in accordance with the notice of closure given by the petitioners the establishment had been formally closed down. Section 1(3) of the Act provides that Section 16 of the Act shall apply to every establishment which is a factory engaged in any industry specified under Schedule I. Section 2(g) of the same statute defines 'factory' as a premises in any part of which a manufacturing process is being carried on or is ordinarily so carried. It is thus apparent that where, as here, manufacturing process is permanently stopped and the factory has been closed down for good it cannot be validly contended that the statute will continue to be applicable to the establishment." It is further held that, "...Even after the closure of the factory the employers might like to engage some employees to look after the assets and properties of the establishment. But thereby the statute cannot become applicable to the establishment. The Regional Provident Fund Commissioner was hence clearly in error in holding that the aforesaid statute continued to apply to the petitioners establishment even after its closure." Mr. Dev, therefore, submitted that the above decision squarely applies to the facts of the present case and the employees which were kept were only watchmen and care-taker. Hence, simply on that count it cannot be said that the establishment is in existence even after its closure. He has, therefore, submitted that both the orders challenged in the present petition are required to be quashed and set-aside. 7. MR. Niral Mehta, the learned advocate appearing for the respondent, on the other hand, has supported the orders passed by the authorities below. He has submitted that the concurrent findings of both the authorities below cannot be disturbed while exercising writ jurisdiction under Articles 226 and 227 of the Constitution of India. He has further submitted that the demand was raised only in respect of those employees which were retained by the petitioner and to whom the payment of salary was made and no deduction under the Act was made. He has, therefore, submitted that as per the provisions contained in Section 1(5) of the Act, even after the establishment of the employer is closed down, the Act would continue to operate. He has, therefore, emphatically stated that no interference is called for and the petition deserves to be dismissed. 8. He has, therefore, submitted that as per the provisions contained in Section 1(5) of the Act, even after the establishment of the employer is closed down, the Act would continue to operate. He has, therefore, emphatically stated that no interference is called for and the petition deserves to be dismissed. 8. HAVING heard learned counsels appearing for the parties and having considered the rival submissions in light of the statutory provisions and the decided case-laws on the subject, the Court is of the view that the establishment was closed after following due procedure in law. Not only this, way back in February 1993 the petitioner had intimated to the respondent and requested to absolve the petitioner from discharging its duties and obligations under the Act. No action was taken by the respondent for more than 13 years and thereafter only on the basis of the complaint made by the Gujarat Mazdoor Panchayat, actions were initiated in September 2006. The petitioner pleaded before him in response to the notice that the establishment is already closed down and only two watchmen and one care-taker were retained to safeguard the properties of the Company. Despite this fact, he has passed order under Section 7-A of the Act raising the demand of Rs.1,46,937=00. This action of the Assistant Provident Fund Commissioner is contrary to the provisions contained in Section 1(3) of the Act, which clearly states that subject to the provisions contained in Section 16, it applies to every establishment which is a factory engaged in any industry specified under Schedule I and in which twenty or more persons are employed. It is submitted that as per Section 1(5) an establishment to which the Provident Fund Act applies shall continue to be governed by the said Act notwithstanding the fact that number of persons employed therein at any point of time falls below twenty. However, this sub-section applies only in the case where the establishment is continuously in existence and it has no intention to close the unit. The whole scheme of the Act is that, when there are certain manufacturing activities and those activities are going on, the Act would apply. There is no provision which makes the Act applicable even to a closed unit. The decision of the Allahabad High Court is very clear. The whole scheme of the Act is that, when there are certain manufacturing activities and those activities are going on, the Act would apply. There is no provision which makes the Act applicable even to a closed unit. The decision of the Allahabad High Court is very clear. Even in this case also four security guards were retained to keep guard over property of establishment and the court took the view that the same does not change the fact of closure already established. Here also, the closure was established. Reference made by the Union was rejected. Considering the entire facts and circumstances of the case and also further considering the provisions of the Act and the law applicable in this subject, the Court is of the view that impugned order passed by the Appellate Tribunal confirming the order of the Assistant Provident Fund Commissioner deserves to be quashed and set-aside and it is accordingly quashed and set-aside. 9. THIS petition is accordingly allowed. Rule is made absolute. No order as to cost. 10. IF any amount is deposited by the petitioner pursuant to the order passed by the authorities below, the petitioner is entitled to claim back the said amount.