JUDGMENT

G.S. SINGHVI, .J.:— This is petition for quashing order, dated 23 March 1998 and 16 September 1999, passed by the Regional Provident Fund Commissioner, Sub-Regional Office, Ludhiana (respondent No. 1) and the Presiding Officer, Employees Provident Fund Appellate Tribunal, New Delhi (respondent No. 1) respectively.

The main ground on which the petitioner has challenged the assessment order passed by respondent No.1 under section 7A and appellate order passed by respondent No.2 under section 7(1) of the Employees provident Funds and Miscellaneous provisions Act, 1952 (for short, the Act) is that its units is not covered by the provisions of the Act and the finding recorded by the respondents about the total number of employees employed in the establishment is based on a total misreading of evidence and is perverse

In the written statement filed on behalf of respondent No.1, it has been averred that the finding recorded by the respondents about the total number of persons employed in the factory of the petitioner is based on proper appreciation of evidence produced its liability to pay the dues of the provident fund etc.

Sri V.G. Dogra argued that the impugned orders are liable to be quashed because no tangible evidence was produced by the department before the respondents to prove that the total number of employees engaged by the establishment was 20 or more. He submitted that the lists produced by the Provident Fund Inspectors contained vague and incomplete information and the same could not have been made basis for recording and finding that the petitioner was covered by the provisions of the Act. He further submitted that Sri S.K. Gupta, who is said to have signed the list of employees prepared by the two Inspector, namely, Sri Kuldeep Singh and Sri Vinay Vashit was not employed in the establishment of the petitioner and therefore, the particulars contained therein could not has relied upon for recording a finding on the issue of coverage. He then argued that the view taken by respondent No.2 on the inter-connection between the two establishments being run by the partnership firm and the private limited company not only suffers from self-contradiction, but is also unwarranted because the petitioner did not get opportunity to prove that the two units were independent of each other.

Sri Rajesh Bindal laid emphasis on the fact that the list prepared by the Inspectors were duly signed by the representative of the petitioner, namely, Sri S.K. Gupta and Sri Dewan Chand and argued that the respondents did not commit any illegality by relying upon the statistics contained therein for the purpose of recording a finding that more than 20 persons were employed in the establishment of the petitioner.

Before dealing with the arguments of the learned counsel for the parties, we deem it proper to notice the para-meters for issuance of a writ of certiorari. In Syed Yakoob v. K. S Radhakrishan and others, a Constitution Bench of the Supreme Court considered the scope of the High Court’s power to issue a writ of certiorari and laid down the following propositions.

“A writ or certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals these are cases where orders are passed by inferior courts of Tribunals without jurisdiction, or is in excees of it, or as a result of failure to exercise jurisdiction A writ can, similarly be issued where in exercise of jurisdiction conferred on it the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice

The jurisdiction of High Court to issue a writ of certiorari, is a supervisory jurisdiction and the court exercising it is not entitled to act as appellate court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the fact of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recording the said finding, the Tribunal had erroneously refused to admit the admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced me impugned finding similarly, if a finding of fact is based on no evidence, that would be regarded as on error of law which can be corrected by a writ of certiorari

A finding of fact recorded by the Tribunal cannot, however, be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of tact to be drawn from the said finding being within the exclusive jurisdiction of the Tribunal, the points can not be agitated before a writ Court”.

Jitendra Singh Rathor v. Sir Baidynath Ayurved Bhawan Ltd. and another, the Supreme Court while dealing with the challenge to an award passed under section 11A of the Industrial Disputes Act, 1947, held as under:

“The High Court is indisputably entitled to scrutinise the order sub the subordinate Tribunals within the well accepted limitations and, therefore, it could in an appropriate case quash the award of the Tribunal and thereupon remit, the matter to it for fresh disposal in accordance with law and directions, if any. The High Court is not entitled to exercise the powers of the Tribunal and substitute an award in place of the one made by the Tribunal as in the case of an appeal where it lies to it …

                                                                                                            (emphasis supplied)

In view of the aforementioned decisions, it must be treated as well settled that the High Court will not interfere with the finding of fact recorded by a subordinate Court/Tribunal or quasi-judicial authority unless it is satisfied that such finding is vitiated by an error of law. An error, which can be discovered by lengthy arguments and on a reappreciation of evidence produced by the parties before the subordinate Court/Tribunal or quasi-judicial authority cannot be regarded as an error of law. Similarly, the mere possibility of forming an opinion different than the one already formed cannot lead to an inference that the order under challenge vitiated by an error of law. The High Court cannot interfere with the finding of fact only on the ground that the evidence produced before the subordinate Court/Tribunal or quasi-judicial authority are not sufficient to prove the particular fact However, a finding of fact can be reversed if the High Court comes to the conclusion that in recording such finding, the subordinate Court/Tribunal or quasi-judicial authority had ignored material evidence or taken into consideration inadmissible evidence.

We may now advert to the impugned orders and determine whether the same are vitiated by an error of law, as contended by Sri V.C. Dogra or the concurrent findings of fact contained therein do not call for interference by this Court as argued by Sri Rajesh Bindal.

A perusal of order, dated 23 March 1999, shows that on receipt of the report submitted by the two Inspectors, namely Sri Kuldeep Singh and Sri Vinay Vashisth showing that 25 persons were employed in its establishment on 28 November 1997, the petitioner was provisionally brought under the purview of the Act. The coverage proforma and the list of employees were signed by Sri S.K. Gupta, who was responsible person available in the establishment. Prior to this, Sri Dewan Chand, machinery incharge, had signed the coverage proforma showing that on 6 June 1997. 50 persons were employed in the establishment of the petitioner of which Sri Kailash Chander Agarwal was shown as Managing Director and Sri Dinesh Aggarwal was shown as Director. The petitioner challenged the letter of provisional coverage by filing an appeal before respondent No. 2 which was disposed of vide order, dated 20 May 1998, with the observation that the objections may be raised before respondent No. 1. Thereafter, the petitioner file objections against the reports submitted by the Enforcement Inspectors. Respondent No. 1 fixed the case for hearing on some of the dates between October, 1998 and March, 1999. The representative/advocate of the petitioner did not appear on some of dates and adopted the delaying tactics. After examining the record and the evidence produced before him and hearing the representatives/advocates of the petitioner and the department, respondent No. 1 held as under:

“(i) That not only once, but twice and establishment was found to have employed more than 19 employees by two different squads. i.e., on 28 November, 1997 first squad found 25 employees working in the establishment and 29 employees found working as on 28 April, 1998 as per enquiry report of another squad.

(ii) Sri S.K. Gupta, responsible person had supplied information and signed on the coverage proformas and list of employees on both the occasions and on second occasion has put official stamp of the establishment and had signed on it.

(iii) As per above information given by Sri Gupta establishment is having:

(a) Sri Kailash Aggarwal as Managing Director and Sri Dinesh Aggarwal Director in r/o of M/s. B.R. Spinners (Private) Ltd., Rahon Road, Ludhiana, and having registered office at 155, Industrial Area A Ludhiana.

(b) Sri Diwan Chand is incharge of machinery of M/s. B.R. Spinners (Private) Ltd., Ludhiana.

(c) As per list of employees given at back of coverage proforma singed by Sri Diwan Chand M/s. B.R. Spinners (Private) Ltd. was having 50 employees as on 6 June 1997.

(d) As per information given by Sri Gupta to second squad, dated 28 April, 1998, establishment namely M/s. B.R. Spinners (Private) Ltd., vill. Seera, Rahon Road, Ludhiana, is having Sri Ganesh Aggarwal as partner and establishment having employed 29 employees as on 28 April, 1998 and having Sri Kailash Aggarwal as occupier with having address of branches at 143 Industrial Area A, Ludhiana.

(e) The designation of Sri Gupta has been shown as supervisor as shown in the list of employees, dated 2 April, 1998.

(f) As per information given in these proformas, establishment is doing the job of wool tab/yarm process with effect from 11 October. 1994 as per enquiry report. dated 28 November 1997, and with effect from 20 September, 1994 as per enquiry report, dated 28 April 1998, and also having different registration numbers which require further scrutiny. From the above it is observed that:

(i) S/Sri Kailash Aggarwal and Sri Dinesh Aggarwal (or Sri Ganesh Aggarwal) are the employers/responsible persons;

(ii) establishment is having registered office/branch at 155. Industrial Area A, Ludhiana and at 143, Industrial Area A, Ludhiana;

(iii) establishment is employing more than 19 employees on both the days of visit of squad as well as on 6 June 1997;

(iv) the date of set up and registration number of this establishment namely M/s. B.R. Spinners (Private) Ltd., is different in both these enquiry reports;

(v) had the establishment supplied relevant documents during the proceedings above facts could have been confirmed but for want of complete production of records and failure on the part of the establishment to do so, above facts have to be admitted”.

He then referred to the attitude of non-operation adopted by the petitioner and recorded the following observations:

“Now I proceed further with the case. The establishment after receipt of coverage letter, dated 27 January 1998, instead of presenting to the competent authority, i.e., Regional P.F. Commissioner, SRO, Ludhiana, against the coverage, preferred to file appeal before the Hon’ble E.P.F. Appl. Tribunal who vide orders, dated 20 May 1998, disposed of the appeal as mentioned in the foregoing paragraph and directed the establishment to raise objections before this authority, i.e. Regional P.F. Commissioner. It was only thereafter that on 25 May 1998 establishment submitted a letter to this effect. Thus the matter was seized under section 7A of the Act and the establishment was asked to produce the records as mentioned in the notice, dated 5 October 1998, but during the entire proceedings, the establishment adopted the method of prolonging the issue and failed to produce the records inspite of the fact that during each proceedings the same was asked for by giving reason for production of entire records but the establishment was adamant to produce the same with one pleas or the other throughout the 10 chances provided to the establishment on the principle of natural justice between 12 October 1998 to 8 February 1999. Sri Ashok Rajput. advocate of these establishments categorically refused to produce the records at one time and insisted for production of records yearwise during each hearing and that too on the basis that same be returned back at the close of each hearing. This was not found feasible by the department and insisted for examination of records at a stretch to find out the factual position.

On the other hand, in order to protect the interest of workers and keeping in view the guidelines in this regard, it was not advisable to prolong the proceedings just to convince the establishment to produce the records at a time instead of in piece meal and secondly keeping in view the delaying tactics adopted by the establishment the matter was ultimately kept as Reserve for orders.

Now as per above position, it is very clear that establishment soon after the receipt of coverage letter tried to evade the compliance by way of adopting tactics to prolong the matter by way of firstly having approached the Hon’ble EPF App. Tribunal instead of representing the competent authority and thereafter by either not appearing in the first hearing or thereafter by not producing records in the next 3 hearings and again during next proceedings till last proceeding which ultimately had to be restricted for undue prolonging of the matter could have been decided without delay of its applicability ad clubbing with other establishments which is quite crystal clear from the tact that all these establishment except that of M/s. B.R. Textile, Village Mangil, Chandigarh Road, Ludhiana (PN/16790) are having common ownership/managing, registered office, same activities, etc., and are clubbable prima facie. But for want of records, further scrutiny could not be done. Hence at least at this stage, matter of applicability can be decided and directions for further production of records and scrutiny can be given. It has been held in the case of Bankim Chandra Chakravarthy v. Regional Provident Fund Commissioner, AIR 1958 Pat 314, that onus of proving employment strength below twenty lies on the petitioner who has challenged the applicability of the Act to his establishment but here the establishments always tried to prolong the issue instead of producing records in the entire 10 chances in a span of 5 months provided to it for the production of records. Had the establishment co-operative in these entire 10 proceedings, there would have been full, fair and effective opportunity to establishment to represent its cause but failed to avail this also”.

The conclusion recorded by respondent No. 1 on the issue of coverage of the petitioner reads as under:

“Thus in the light of above facts, documents, available as well as placed on the record and plea taken by both the parties and after having applied my mind to the facts and figures of the case as mentioned above by me in foregoing paras. I am of the opinion that establishment is deliberately trying to avoid the compIiance by adopting tactics for delaying the matter by not producing the entire records for examination by the department to examine the contentions of the establishment and by remaining un-co-operative throughout the proceedings and also by trying to avoid issue of clubbing with other establishments having common management. Hence, A.K. Chandok, Regional P.F. Commissioner, S.R.O. Ludhiana, having powers confirmed upon me by virtue of section 7A of the Act, hereby decide the issue of applicability in favour of the Department and hold that the establishment was rightly been covered under the Act by the Department and the employer is statutorily duty bound to report compliance under the Act initially from the date of coverage and thereafter the Department shall proceed further for deciding the issue of culpability with other establishments as mentioned above for which all related establishments be directed to produce the records”.

While dismissing the petitioner’s appeal, respondent No. 2 took notice of photostat copies of the attendance and wages registers, cash books, ledger and balance sheets for the years 1996-97 and 1997-98 produced by its representative and observed as under:

“It is open secret that the industrialists are not reflecting the true amount of wages being paid by them. They are showing these amounts in other heads and not in wages. Mostly the wages paid to the temporary employees is underlacted. Such a big factory cannot be suggested to be run with the help of only 12 persons who are required to manage the office alone. It is safer to rely on the report of the EOs who have visited the establishment of the appellant thrice. I do not hesitate to reject the affidavit of Sri Kailash Agarwal who is an interested person. No independent evidence has been produced by the appellant to prove that they are employing only 12 persons and not 25. Showing of the spinning charges in the final account of this private limited company also reflects that there is interconnection between the spinning mill and this combing mill. Having regard to the nature of the work in the partnership firm and this private limited company they appear to be interconnected being supplementary and complementary to each other. The owner of both these establishments are the members of the same family. The spinning mill is already covered. So even without employing 20 persons this combing establishment is liable to be covered. Therefore, I am inclined to dismiss this appeal and confirm. the impugned order”.

A critical analysis of the two orders shows that respondent No. 1 examined the evidence produced by the department which ‘included the lists prepared by the Enforcement inspectors only signed by Sri S.K. Gupta and Sri Dewan Chand, who were employed in the establishment and recorded a well reasoned conclusion that more than 20 persons were employed in the factory of the petitioner. Respondent No. 2 did not record elaborate reasons, but confirmed the findings of fact recorded by respondent No.1.

Our opinion, the concurrent finding recorded by the respondents on the issue of total number of persons employed in the factory of the petitioner does not suffer from any legal error requiring interference by the High Court.

The argument of Sri Dogra that the lists produced by the Enforcement Inspectors could not have been relied upon by the respondents because they did not contain full particulars and Sri S.K. Gupta was not employed in the factory of the petitioner deserves to be rejected because no evidence was produced on its behalf to controvert the facts embodied in the reports of the Enforcement Inspectors and the details contained in the lists prepared by them. The representative/Advocate of the petitioner could have made a request for cross-examination of the Enforcement Inspectors to prove that Sri S.K. Gupta was not employed in the factory, but no such attempt was made. The fact that Sri Dewan Chand employed as Machinery lncharge was not even controverted by the petitioner. Therefore, it is not possible to accept the submission of the learned counsel that the impugned orders are vitiated by an error of law.

No other point has been argued.

For the reasons mentioned above, the writ petition is dismissed.

                                                                                                            Petition Dismissed.