JUDGMENT 1. On a request made by learned advocate Mr. PK Shukla for the respondent, the matter is taken up for final hearing, to which, learned advocate Mr. Mehta for the petitioner has no objection. 2. The petition is filed by one Crestchem Ltd., through its Director challenging demand of damages and interest, made by the respondent – Regional Provident Fund Commissioner, Ahmedabad. The petitioner has also prayed for a direction to the respondent 'to refund amount of interest and damages of Rs.2,25,000/- which according to the petitioner, was wrongfully recovered by the respondent with interest'. 2.1 This petition was filed in the month of January 2006 and was taken up for hearing on 24th January 2006. The Court issued Notice returnable on 2nd February 2006, permitting to effect 'direct service'. On returnable date, learned advocate Mr. Shukla appeared for the respondent and requested for time and the matter was adjourned to 16th February 2006. On 16th February 2006, this Court passed following order: “This matter was listed before this Court on 02.02.06. No reply has yet been filed by the respondent. In that view of the matter, ad-interim relief in terms of Para 16(D). It will be open for the respondent to move for modification of relief after filing reply.” 2.2 The learned advocate for the respondent submitted that the Reply was affirmed on 10th March 2006. The learned advocate for the petitioner submitted that the action of the respondent of levying damages and interest is unjust and de horse the law inasmuch as the petitioner, of his own, applied to the authorities to extend voluntary coverage to the petitioner unit. In this regard, the learned advocate for the petitioner invited attention of the Court to the averments made in Para 3 and 4, which read as under: “3. Petitioner has not employed 20 or more than 20 persons in his factory therefore, the Employees Provident Fund Scheme is not applicable to the petitioner as per Section 1(3). 4. Though, Employees Provident Fund and Miscellaneous Provisions Act, 1952 is not applicable to petitioner still, however, petitioner had applied for the voluntary coverage under the Employees Provident Fund Scheme under Section 1(4) of the Act.” 2.3 Both these averments are made with a view to serve the purpose of the petitioner and to advance the design of the petitioner. 4. Though, Employees Provident Fund and Miscellaneous Provisions Act, 1952 is not applicable to petitioner still, however, petitioner had applied for the voluntary coverage under the Employees Provident Fund Scheme under Section 1(4) of the Act.” 2.3 Both these averments are made with a view to serve the purpose of the petitioner and to advance the design of the petitioner. In Para 3, it is deliberately not mentioned as to on which date, the petitioner did not employ 20 or more than 20 employees/persons. In Para 4, it is mentioned that, 'the petitioner applied to the authorities to extend voluntary coverage to the unit'. Prima facie, it may look to be a very bona fide gesture and one may feel that there are still employers like the petitioner, who volunteer themselves to be covered under the Provident Fund Scheme so that, their employees are benefitted. But on reading, Annexure 'B', it became clear that, this was a part of 'ill-design' to avoid the application of the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as 'the PF Act') by the Provident Fund authorities, so that recovery for the earlier period can be avoided. The voluntary coverage was sought with a view to take an excuse that, 'after extending voluntary coverage, as other formalities were not completed, the petitioner is not liable to pay damage or interest'. In Annexure 'B', which is an order of the Assistant Provident Fund Commissioner (Damages) dated 1st September 2004, it is mentioned that: “In the matter of proceedings under section 14-B of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 against M/s. Crestchem Limited, GJ/25029. ORDER M/s. Crestchem Limited, GJ/25029, an establishment to which the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 applies, failed to pay (i) Provident Fund contribution, (ii) Administrative Charges, (iii) Family Pension Fund contributions and administrative charges, withing the time limit as prescribed in the Employees' Provident Fund Scheme, 1952; the Employees' Family Pension Scheme, 1971; Employees' Pension Scheme, 1995 and the Employees' Deposit Linked Insurance Scheme, 1976. The employer of the establishment thus rendered himself liable for damages under section 14-B of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952. The employer of the establishment thus rendered himself liable for damages under section 14-B of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952. Accordingly, a notice was issued to the employer on 22.01.2004 to show cause why damages under section 14-B of the said Act may not be levied and recovered for the default committed in delaying the payments. The details of the defaults committed were furnished to the employer along with the notice. Reasonable opportunity was given to the employer to represent his case vide summons dated 04.03.2003. Hearing was fixed on 11.03.2004 and finally concluded on 05.04.2004. No representatives appeared from the establishment inspite of the opportunities granted, neither did it show any inclination to file any reply or any kind of representation other than requesting time for verifying their records, which even though granted did not result in the establishment turning up for the hearing. Rather it chose to remain silent in the matter choosing instead to ignore the proceedings. Therefore, in such circumstances, I am left with no alternative but to assess the damages as per the records available with the department and as per the law laid down...” (emphasis supplied) 2.4 What is interesting is that, the petitioner is putting forward a claim that on 30th April 1994 it wrote to the RPFC seeking, 'voluntary coverage under Employees' Provident Fund and Miscellaneous Provisions Act, 1952'. The communication reads as under: “We intend to extend the benefits available under the provisions of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 to the employees of our establishment with effect from 1st April 1994. Hence, we would request you to kindly cover our establishment voluntarily under the Act and allot us code number so as to enable us to comply with the provisions of the Act and the scheme framed thereunder from our end. We are sending herewith a joint application signed by majority of employees of our establishment in your prescribed form, as well as an inquiry report duly filled in and signed by us. We are sending herewith a joint application signed by majority of employees of our establishment in your prescribed form, as well as an inquiry report duly filled in and signed by us. We assure you of strict compliance of the provisions of the Act and the scheme framed thereunder in all respects.” 2.5 Coupled with this, what is stated in Para 5 of the petition is: “Thereafter, petitioner has supplied the necessary forms to the respondent and respondent has issued letter No. GJ/AH/25029/ ENFIV/1052, dated 7-3-95 to the petitioner under Section 1(4) of the Employees' P. F. and Miscellaneous Provisions Act, 1952, allotted provisional code No. GJ/AH/25029 on voluntary basis, provisionally, pending finalization of the said case. Copy of such letter is annexed herewith as Annex. “A” collectively.” 2.6 This shows that, the petitioner volunteered to be covered by the provisions of the PF Act with an intention that the department does not determine the dues payable by the petitioner from an earlier date. 2.7 The learned advocate for the petitioner vehemently submitted that under Sub-section (4) of Section 1 of the PF Act, it is mandatory for the authorities to issue Notification and until a Notification is issued, the provisions of the Act cannot be made applicable. In this regard, Sub-section (4) of Section 1 of the PF Act is reproduced by the petitioner in Para 6 of the petition. 2.8 The learned advocate for the petitioner vehemently submitted that until Notification is issued by the authorities as contemplated under Sub-section (4) of Section 1, the provisions of the Act cannot be applied, as held by the Bombay High Court in the matter of Harish Sakharam Savardekar Vs. Union of India and Ors. Reported in 1991 LAB IC 1656. This Court is of the opinion that the said decision is of no help to the petitioner because the Court, on appreciating the facts of the case, has come to the conclusion that, the act of the petitioner of applying for voluntary application was ill-designed and it was only with a view to see that the PF authorities do not assess the liability of the petitioner for the period prior to the application made by the petitioner. Therefore, that decision is not applicable to the facts of the case of the petitioner. 2.9 The learned advocate Mr. Therefore, that decision is not applicable to the facts of the case of the petitioner. 2.9 The learned advocate Mr. Shukla for the department submitted that the very object behind issuing a 'provisional Code Number' was that, in the event the department comes to the conclusion that the Act was applicable from a 'prior date', the petitioner can be held liable for the payment of the dues as per law. The petitioner by twisting the facts represented before the Court and complained that, as the department did not issue required Notification as contemplated in Sub-section (4) of Section 1 of the PF Act, the provisions of the Act are not applicable. The learned advocate for the petitioner was not able to explain as to what happened to the 'Agreement' referred in the said sub-section, because Sub-section (4) says that, '... the employer and the majority of the employees in relation to any establishment have agreed that the provisions of this act should be made applicable to the establishment, he may, by notification in the office gazette, apply the provisions of this Act to that establishment on and from the date of such agreement or from any subsequent date specified in such agreement' (emphasis supplied). 2.10 The learned advocate for the respondent department invited attention of the Court to Schedule-I attached to the PF Act, 1952, wherein, 'Chemical Industry' is enlisted in the Schedule and therefore, there was no question of issuing any Notification. Even otherwise, the Court is of the opinion that, taking into consideration the totality of the facts, the application made by the petitioner seeking voluntary application of the the provisions of the Act was with a sole purpose to see that the authorities do not make any inquiry for the 'earlier period'. 2.11 The learned advocate for the petitioner submitted that, as the petitioner unit 'volunteered itself', for applying the provisions of the PF Act, there was no reason for the department to go beyond the date of application made by the petitioner establishment. Here lies the catch. This application for making the provisions of PF Act applicable was only for the purpose to see that the petitioner establishment is able to avoid the liability for the earlier period. Here lies the catch. This application for making the provisions of PF Act applicable was only for the purpose to see that the petitioner establishment is able to avoid the liability for the earlier period. The learned advocate for the petitioner is not able to show any provision of the Act, which prohibits the department from assessing the liability of the department for the period prior to such application if the petitioner establishment volunteers to apply the provisions of the PF Act. 3.0 In the result, the Court finds no substance in the petition. The petition is dismissed with no order as to costs. Rule is discharged. Interim relief, if any, stands vacated forthwith.