JUDGMENT : Dr. B.R. Sarangi, J. - 1. The petitioner, M/s. Utkal Rope Works, a proprietorship firm, files this application to quash the order dated 12.03.2004 under Annexure-1 passed by the Asst. Provident Fund Commissioner (C), Rourkela under Section 7(A) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to "the Act") against P.F. Code No. OR/7631 determining the amount due towards PF Insurance Fund contribution etc. for the period 03/1984 to 03/2002 in case No. 7A/345/2001, confirmation thereof by the appellate authority vide order dated 23.02.2010 under Annexure-9(a) in A.T.A. No. 595 (10) 2004 by the Presiding Officer, EPF Appellate Tribunal, New Delhi and consequential notice dated 17.03.2010 under Annexure-10 issued by the Recovery Officer for recovery of the amount in question. 2. The factual matrix of the case, in hand, is that M/s. Utkal Rope Works is a proprietorship firm engaged in manufacture of ropes and marketing thereof, being a small industry registered under the DIC, Sambalpur on 10.05.1979. Originally it was a partnership firm, but subsequently it was decided to have a proprietorship firm and accordingly, the registration of the said firm has been done under the Sales Tax Authority on 04.07.2002. After dissolution of the partnership firm, the unit remained closed from 31.03.1999 to 25.08.2000 and the present proprietorship firm took initiative to revive the unit in the month of July, 2000 and started it's trade in the names of the petitioner firm w.e.f. 01.04.2000. The petitioner received an order from the opposite party No. 1 on 15.03.2001 purported to have been passed under Section 7A of the Act for the period from November, 1999 to January, 2000. The same was challenged before this Court in OJC No. 10079/2001 on the ground that assessment was made ex-parte. This Court disposed of the said writ petition by order dated 05.09.2001 quashing such assessment order passed by the Asst. Provident Fund Commissioner and remitted the matter back to him for re-assessment by affording opportunity to the parties and fixed the date of appearance to 24.09.2001. This Court disposed of the said writ petition by order dated 05.09.2001 quashing such assessment order passed by the Asst. Provident Fund Commissioner and remitted the matter back to him for re-assessment by affording opportunity to the parties and fixed the date of appearance to 24.09.2001. On the date fixed, the petitioner appeared and subsequently filed documents before the opposite party and raised a preliminary objection with regard to the applicability of the provisions of the Act to such firm and stated that the petitioner has started its business and run the unit w.e.f. September, 2000 and has never employed employees/workers more than 10 and further stated that once the unit of the petitioner started its business in the year 2001, question of any assessment, if at all the petitioner firm is coming under the purview of the Act, cannot be done for the year 1999-2000. In spite of such objection being raised, the Asst. Provident Fund Commissioner did not pass any order and sat tight over the matter. Consequentially, the petitioner approached this Court by filing W.P.(C) No. 7702 of 2003 which has been disposed by this Court with a direction to opposite parties to decide the issue raised by the petitioner and thereafter proceed under Section 7A of the Act. After receiving the said order, without considering the objection raised by the petitioner in proper prospective, the Asst. Provident Fund Commissioner passed the order on 12.03.2004 de novo under Section 7A of the Act. Challenging the said order, the petitioner preferred an appeal under Section 7-I of the Act raising similar questions which were raised before the EPF Commissioner. Since the appellate authority was not functioning then, the petitioner again approached this Court by filing W.P.(C) No. 5960 of 2004. This Court disposed of the said writ petition by order dated 21.11.2008 directing the EPF Tribunal to dispose of the appeal as expeditiously as possible and further directing that no coercive action shall be taken for realization of the amount till disposal of the appeal. The petitioner on receipt of the notice on 15.12.2009 from the Appellate Tribunal that the Presiding Officer of opposite party No. 1 would hold a Camp Court at Bhubaneswar, appeared before him on the date fixed i.e., on 20.01.2010. The petitioner on receipt of the notice on 15.12.2009 from the Appellate Tribunal that the Presiding Officer of opposite party No. 1 would hold a Camp Court at Bhubaneswar, appeared before him on the date fixed i.e., on 20.01.2010. After hearing, the Appellate Tribunal, without considering the contentions raised by the petitioner confirmed the order passed by the EPF Commissioner under Section 7A of the Act vide order dated 23.02.2010 in A.T.A. Case No. 595 (10) 2004 and dismissed the appeal preferred by the petitioner. Challenging the assessment order passed by the Asst. Provident Fund Commissioner under Section 7A of the Act and confirmation made thereof by the Appellate Authority under Section 7-I of the Act vide Annexures-1 and 9(a) respectively and the consequential notice issued by the Recovery Officer for recovery of the amount of Rs. 9,02,307/- under Anneuxre-10 dated 17.03.2010 the petitioner has approached this Court. 3. Mr. B. Das, learned counsel for the petitioner though initially raised various contentions, he confined his argument to the extent of applicability of provisions of the Act to the establishment of the petitioner and stated that in view of the provisions contained under Section 3 of the Act, since the petitioner-establishment has not employed 20 or more persons, it will not come within the purview of the Act and accordingly, the entire exercise done by the Asst. Provident Fund Commissioner and the confirmation thereof by the Appellate Authority cannot sustain. To substantiate his contention he has relied upon the documents filed in Annexure-17 to the rejoinder affidavit, which is self-explanatory document prepared by the enforcement officer, who caused enquiry to the premises of the petitioner where he himself has indicated that 13 employees are working in the establishment and also the list of documents annexed to Annexure-20 dated 20.01.2003 and stated that without considering the said documents Assessing Officer passed the impugned order in, Annexure-1. It is further stated that though this Court by order dated 05.09.2001 in OJC No. 10079 of 2001 directed the opposite parties to consider the applicability of the Act to the institution while setting aside the ex-parte order passed by the Asst. Provident Fund Commissioner, the same has not been adhered to by the Assessing Officer while passing the impugned order in Annexure-1. Provident Fund Commissioner, the same has not been adhered to by the Assessing Officer while passing the impugned order in Annexure-1. Though similar grounds have been raised before the Appellate Authority, the same have not been taken into consideration, rather the Appellate Authority confirmed the order passed by the Assessing Office. Consequently, the Recovery Officer issued the notice in Annexure-10 for recovery of the amount. The sequence of events indicates that the authorities have acted in contravention of the provisions of the Act read with direction given by this Court in earlier writ petition. 4. Mr. G. Mishra, learned counsel appearing for the EPF Commissioner vehemently contended that the petitioner is a habitual defaulter and is not cooperating with the proceeding and as such, he wants to consume time not to pay legitimate dues as raised by the authority concerned. Though several adjournments at his instance has been granted, for some reason or other, he is trying to delay the payment, which it is otherwise liable to pay and justifies the action taken by the authority concerned and stated that in view of the judgment of the apex Court in MCLEOD Russel India Limited v. Reg. Provident Fund Commissioner, Jalpaiguri and others, Civil Appeal No. 5927 of 2014 disposed of on 02.07.2014, the petitioner is liable to pay the demand raised by the authority. 5. On the basis of the facts pleaded above instead of delving into the various questions raised by the learned counsel for the parties, as the learned counsel for the petitioner has confined his argument to the applicability of the Act itself, this Court decides to consider the argument advanced by the petitioner for just and proper adjudication of the case in hand. 6. The Act has been enacted by the Parliament by which it is to provide PF funds, pension funds and deposit-linked insurance fund for the employees in factories and other establishment. No doubt the Act is a beneficial piece of social welfare legislation intended to protect the interest of the helpless labourers, but that ipso facto cannot entitle the statutory authorities to act mechanically leaving statutory liability under the provisions of the Act, 1952. No doubt the Act is a beneficial piece of social welfare legislation intended to protect the interest of the helpless labourers, but that ipso facto cannot entitle the statutory authorities to act mechanically leaving statutory liability under the provisions of the Act, 1952. Sub-Section (3) of Section 1 states as follows: "(3) Subject to the provisions contained in Section 16, it applies- (a) to every establishment which is a factory engaged in any industry specified in Schedule I and in which twenty or more persons are employed, and (b) to any other establishment employing twenty or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette, specify in this behalf; 7. The aforementioned provision indicates that the Act will apply to every establishment, which is a factory engaged in any industry specified in the Scheduled-1 in which 20 or more persons are employed and unless a factory engages more than 20 persons, the Act will not apply to the said organization. Section-6 states about contributions and matters which may be provided for in the Scheme. Sub-Section(3) of Section 1 read with Section 6 casts an obligation upon the statutory authority to prove their stand before making any demand against any establishment. As per the established principle of EPF law, before levying any statutory liability against the establishment under the Act, the EPF organization needs to come to a conclusion that the establishment is covered under the Act and for which it has to prove from the records of establishment only that it has employed 20 or more numbers employees in a particular point of time and more so the authority cannot form any opinion merely on the basis of assumption or surmises, inasmuch as applying the Act automatically without verifying the correctness of the persons employed in the establishment. If the establishment has not employed 20 or more persons in that case, the statutory authority cannot apply the provisions of the Act and bring the establishment within the fold of the Act. In absence of any materials available on record or making an inquiry to that extent or by adducing evidence to the extent that the establishment has engaged 20 or more persons, the Act will not apply to such establishment. 8. In absence of any materials available on record or making an inquiry to that extent or by adducing evidence to the extent that the establishment has engaged 20 or more persons, the Act will not apply to such establishment. 8. With regard to applicability of the Act on the basis of the facts available on record, it appears that the partnership firm has been dissolved w.e.f. 31.03.1999. The petitioner before this Court was not there from 31.03.1999 to 20.03.2000 and during the period from November, 1999 and December, 1999 and January, 2000, the unit was closed. The General Manager, DIC, Sambalpur visited the premises 3-4 times after receipt of the letter and observed that 6-8 persons are working and the petitioner was operating the machine which is evident from the document in Annexure-6 dated 13.03.2003. Thereafter, one P.K. Sahoo, Enforcement Officer, EPF Organization visited the premises on 28.08.2000 and verified that there are only 13 workers working in the unit, copy of which is annexed as Annexure-17 to the rejoinder affidavit dated 29.08.2002 and in the said document he has also named the workers engaged by the petitioner on 27.08.2002. This list of employees dated 27.08.2002 has also been admitted and produced before the Asst. Provident Fund Commissioner in his letter dated 20.01.2003 which is annexed as Annexure-20. This clearly indicates that the petitioner-establishment has not engaged 20 or more persons in his establishment at any point of time. But these materials even though were made available before the Assessing Authority, the same were not taken note of. More so, when the petitioner raised a preliminary objection with regard to the applicability of the Act itself to his establishment and this Court directed vide order dated 05.09.2001 in OJC No. 10079 of 2001 the same has not been considered in proper prospective. In paragraph 8 of the impugned order of the Assessing Authority where a discussion has been made with regard to the applicability of the Act, the materials available on record to the extent that Annexure-17 and 20 have not been taken in to consideration and the reference has been made in paragraph-8 of the impugned order of the Asst. Provident Fund Commissioner. The Act will apply to said partnership firm. In any case, so far as the petitioner proprietorship firm is concerned, since the Asst. Provident Fund Commissioner. The Act will apply to said partnership firm. In any case, so far as the petitioner proprietorship firm is concerned, since the Asst. Provident Fund Commissioner has not taken into consideration, the materials available on record namely Annexure-17 and 20 referred to in the rejoinder affidavit, the same amounts to non-consideration of the materials available on record and more so, without considering the applicability of the Act itself to the present firm, the assessing authority proceeded with the assessment order passed in Annexure-1 under Section 7A of the Act which cannot sustain in the eye of law. 9. In that view of the matter, this Court is of the considered opinion that the order passed by the Asst. Provident Fund Commissioner under Section 7A of the Act under Annexure-1 and confirmation thereof made by the Appellate Authority under Section 7-I under Annexure-9(a) and consequential notice under Annexure-10 issued by the Recovery Officer cannot sustain in the eye of law and accordingly, the same are hereby quashed. Since the assessing authority has not taken in to consideration the materials available on record that the establishment cannot come within the fold of the Act he shall reconsider the matter so far as applicability of the Act to the present establishment is concerned and also take into consideration the other questions which the petitioner will raise at the time of hearing. Needless to say that the petitioner shall render all cooperation to the opposite parties for just and proper adjudication of the matter as expeditiously as possible as it is an year-old case. Accordingly, both the parties are directed to appear before the Assessing Officer on 25th February, 2016 and on their appearance, the Assessing Officer shall fix the modalities for disposal of the assessment proceeding as expeditiously as possible by affording reasonable opportunity of hearing to all the parties. It is left upon to the parties to substantiate their contention with reference to the case laws before the said authority. 10. With the above observation and directions, the writ petition stands disposed of. Final Result : Disposed off