JUDGMENT : 1. The petitioner No. 1 was initially a partnership business. Subsequently in the year 1995 the partnership business was converted into a private limited company. 2. According to the petitioners the number of employees was less than 15 with slight variation from time to time. The statement disclosing the number of workers, employees etc. was provided to the Provident Fund Authorities in time. 3. Subsequently the Provident Fund Authorities initiated a proceeding under the Employees' Provident Funds and miscellaneous Provisions Act, 1952 (the Act, for short) and by an order dated May 28, 1999 the respondents determined the dues payable by the petitioners from August, 1992 to October, 1998 at Rs.2,32,196/-. This order was passed by bringing the petitioner-Company within the coverage of the Act by showing the number of employees as 21 which included five partners of the erstwhile firm. 4. The petitioners challenged the said order in a writ petition which having failed they filed an appeal. The said appeal was allowed. The Division Bench had directed the Regional Provident Fund Commissioner himself to decide certain issues and the proceedings to be reopened and a fresh decision was to be taken upon giving the parties an opportunity of being heard in the light of the Judgment of the Division Bench. 5. This was followed by a notice issued by the Provident Fund authorities asking the petitioners to appear for a hearing under Section 7A of the Act (subsequently converted into a 7B hearing) on March 15, 2002. The petitioners attended the hearing and ultimately the Assistant Provident Fund Commissioner, Barrackpore, passed an order on July 15, 2002 which is the subject-matter of challenge in the present writ petition. 6. The petition has been contested by the Provident Fund authorities by filing an affidavit-in-opposition to which the petitioners have filed their Reply. 7. The principal point of challenge in the writ petition is whether the Directors of the Company can be treated as employees within the meaning of Section 2(f) of the said Act. The petitioners have very strenuously argued that by no stretch of imagination the Directors can be treated as employees merely because they get remuneration for attending the Board meetings. The principal point of challenge in the writ petition is whether the Directors of the Company can be treated as employees within the meaning of Section 2(f) of the said Act. The petitioners have very strenuously argued that by no stretch of imagination the Directors can be treated as employees merely because they get remuneration for attending the Board meetings. This has been purposefully done to bring the Company within the coverage of the Act and when they found that even by including the Directors the number of employees is not satisfying the requirement of the Act the respondents even decided to bring the part-time consultant, i.e. the Chartered Accountant who has absolutely no nexus with the Company except doing the works of accountancy which is provided to him from time to time. The concerned Chartered Account is not a paid employee of the Company and he gets his remuneration as per the work done by him. Similarly the office staff as mentioned in the impugned order remains a vague entity and the Assistant Provident Fund Commissioner never cared to explain how each of them satisfied the requirement of the Act to be brought within the coverage thereof. 8. Mr. Pal, the learned Senior Counsel for the Provident Fund authorities had all the trouble in defending the order. In his usual fairness he laid no bones about it. That it was an order very difficult to sustain was very clear from the fair submissions made by him. He himself prayed for a liberty to make a fresh adjudication of the issues involved in the writ petition. 9. Apart from the fact that this must be reckoned to be a very fair submission for sending the matter back to the respondents this Court likes to point out that the order impugned has not been passed in terms of the directions given by the Division Bench of this Court. Considering the importance of the issue involved the Division Bench directed that the liability of the Company vis-a-vis the question whether its Directors have become employees or not must be decided by the Regional Provident Fund Commissioner himself. When the Division Bench had directed the Regional Provident Fund Commissioner to decide the issue it was incumbent upon him to do so. When the Division Bench had directed the Regional Provident Fund Commissioner to decide the issue it was incumbent upon him to do so. He could not delegate it to the Assistant Provident Fund Commissioner and conversely the matter ought not to have been decided by the Assistant Provident Fund Commissioner. 10. The fact that section 7A of the Act empowering different officials including the Regional Provident Fund Commissioner or the Assistant Provident Fund Commissioner to determine the amount due from the employer is no answer to the order to be passed by the Regional Provident Fund Commissioner. It is true that under normal circumstances an Assistant Provident Fund Commissioner is certainly entitled to, in terms of Section 7A of the Act, to initiate a proceeding under Section 7A of the Act and to determine such amount. But when the Court directed the Regional Provident Fund Commissioner with the specific clarification by adding the work 'himself' such an exercise had to be undertaken by the Regional Provident Fund Commissioner and nobody else. Thus this order passed by an authority other than the Regional Provident Fund Commissioner must be held to be an order passed not in conformity with the direction given by Court. As a matter of fact this was an order in violation of the directives of the Court. 11. If the order is not sustainable on the ground as mentioned above it is not sustainable on merits also. When the High Court had directed the Regional Provident Fund Commissioner to decide the question whether the Directors fell within the class of employees it was incumbent upon the respondent to address the issue in a larger legal context. Here we find that the Assistant Provident Fund Commissioner had responded to a defence taken by the Company that the control over the conduct of the Directors rested with the shareholders. This argument having not been found suitable to the "objectives of the organization" the Directors were added as employees. 12. The word 'organization' has not been explained in the order; but it appears and Mr. Kundu, the learned Advocate for the Provident Fund Authorities, has clarified that it refers to the Employees Provident Fund Organization. If that is the criteria the Assistant Provident Fund Commissioner set before himself to decide the issue the Court must have to hold that he approached the matter from a totally unsustainable perspective. 13. Kundu, the learned Advocate for the Provident Fund Authorities, has clarified that it refers to the Employees Provident Fund Organization. If that is the criteria the Assistant Provident Fund Commissioner set before himself to decide the issue the Court must have to hold that he approached the matter from a totally unsustainable perspective. 13. First, the status of the Directors cannot be decided by negating a contention of the employer when the Court passed the direction upon the authorities to determine it. The responsibility lay upon him to establish positively that the Directors were the employees, if they wanted so to do. By a process of elimination of the arguments and without anything more the Provident Fund authorities could never satisfy the requirement of the order passed by the Division Bench of this Court. One argument of the establishment was not found to be valid. A mere rejection of that argument did not make the Directors employees of a Company. 14. That apart, it appears that the Assistant Provident Fund Commissioner had approached the issue from the perspective of trying to bring the establishment within the coverage. Otherwise there would not have been any occasion for him to use the word that the defence taken by the establishment was not suitable to the objectives of the organization. The question is not whether a Director is to be treated as an employee to bring the establishment within the coverage of the Act. The question is whether legally he can be treated as an employee. The objective of the Employees' Provident Fund Organization, if legally anything of its sort exists, is never the right consideration on the part of the respondent authorities for bringing an establishment within the coverage of the Act. It may enure to the benefit of the respondent authorities to bring as many number of establishments as possible but for that the settled requirements of law cannot be compromised with. I am constrained to hold and I do hold that the concerned Assistant Provident Fund Commissioner did not take the trouble of determining the issue in the right legal context and failed to address the issues involved in the question framed by the Division Bench. 15. That apart, what about the payment made to the consultant? It has been mentioned that payments are made on regular basis. 15. That apart, what about the payment made to the consultant? It has been mentioned that payments are made on regular basis. Regularity of payment has to be decided in the context of the periodicity of such payment. There is no mention when and how regularly such payment has been made to a consultant. The respondent authority ought to have clarified how the consultant of an establishment who is definitely not on the pay role of the Company can be treated as an employee of the establishment. 16. There are other numerous questions which have not been answered for example, who were the workmen and the staff (office)? How did the authority distinguish between a workman and the staff? Was the workman a staff or the staff a workman? The Order is absolutely silent on these issues. 17. Merely mentioning the number of heads under which some persons have been categorized will not satisfy the requirement of bringing an establishment within the coverage of the Act. Without disclosing anything practically about any class of employees mentioned under nos.1 to 4 in the impugned order (except some discussion about the Directors in the negative form) the Assistant Provident Fund Commissioner concluded that the applicability of the issue stood fully settled and the concerned establishment had employed 20 employees with effect from May, 1996. Apart from anything else, I find it totally the result of non-application of mind on the part of the respondents authorities. The Assistant Provident Fund Commissioner had held that pursuant to the directions of the High Court hearing under Section 7B of the Act was initiated on November 14, 2000. And "the cause of action for initiating the notice under Section 7B" was the observation of the Division Bench of this Court to decide a certain issues by the Regional Provident Fund Commissioner. The use of provision of Section 7B twice in the same order makes it anything other than a simple typographical mistake. 18. It cannot be gainsaid that the petitioners initially moved the Court against an order passed under Section 7A of the Act. The matter having been sent back to the Provident Fund Authorities they were to decide afresh the issue under Section 7A of the Act. This Court never directed to initiate a proceeding under Section 7B. 18. It cannot be gainsaid that the petitioners initially moved the Court against an order passed under Section 7A of the Act. The matter having been sent back to the Provident Fund Authorities they were to decide afresh the issue under Section 7A of the Act. This Court never directed to initiate a proceeding under Section 7B. Pursuant to that order passed by this Court initially a notice was sent to the petitioner-Company for a hearing under Section 7A of the Act. Subsequently how the proceedings were converted into a proceeding under Section 7B is not known to this Court and the authority passing the order declined to share with the establishment also. Mr. Kundu submitted with reference to paragraph 4(b) of the affidavit-in-opposition that the order under Section 7A was passed in the year 1999 and that was the subject-matter of first challenge in the first writ petition. 19. If the Assistant Provident Fund Commissioner thought that the order of the Division Bench of this Court provided the "cause of action" for initiating a proceeding of Section 7B he is entirely miles away from the provisions of the Act. Section 7B empowers the authority to review an order passed under Section 7A. But it has to be initiated by an establishment aggrieved by the order passed under Section 7A. The Provident Fund authorities have no right to suo motu initiate a 7B proceeding without any party applying for it. The learned Advocates for the Provident Fund Authorities, like the Court, are at their wit's end to explain how a 7A proceeding with the passage of time would be disposed of as a 7B proceeding. 20. Thus the order is not only violative of the directions given by the Division Bench, is also not sustainable from a legal point of view. It is silent on very vital aspects, has approached the issue from a wrong perspective with the objective of bringing the establishment within the coverage of the Act it and also suffers from the vice of non-application of mind. 21. Thus the order is entirely wrong and is liable to be set aside. The order is set aside and quashed. It is silent on very vital aspects, has approached the issue from a wrong perspective with the objective of bringing the establishment within the coverage of the Act it and also suffers from the vice of non-application of mind. 21. Thus the order is entirely wrong and is liable to be set aside. The order is set aside and quashed. I send the matter back to the Provident Fund Authorities for a fresh adjudication of the issues in the light of the directions given by the Division Bench in its order dated April 20, 2000 as well as the observations made by this Court in the present order. Such fresh adjudication has to be done by the Regional Provident Fund Commissioner - II, Barrackpore himself within a period of 12 weeks from the date of the communication of the order. If necessary a fresh exercise shall be taken for ascertaining the real state of affairs and for working out the number of employees actually employed by the petitioner no. 1- Company. It is clarified that the whole thing must be approached to find out the number of employees to determine the cover-ability of the establishment under the Act and not to some how bring the establishment within the coverage of the Act. 22. The petitioners are directed to co-operate with the respondents authorities and to produce all documents which Regional Provident Fund Commissioner - II may direct them to produce. 23. In view of what has been discussed above, I consider this to be a case which should not only be dismissed, but dismissed with costs. Considering all that the Assistant Provident Fund Commissioner has done, particularly in view of exercising a jurisdiction contrary to the direction of this Court earlier, I dismiss the writ petition with costs of Rs.10,000/-. The respondents are directed to pay the said amount to the petitioner no. 1-Company within a period of 2 weeks from the date of communication of the order. In default, the petitioner no. 1 shall be entitled to recover the same in accordance with law. Urgent Photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties on the usual undertakings. Writ Petition dismissed with cost.