S.K. Jha, J.

In this application under Article 226 of the Constitution of India the petitioners have prayed for issue a writ in the nature of certiorari for quashing the notice dated 5.1.76 as incorporated in annexure 2 and the order of the Regional Provident Fund Commissioner respondent no. 2 dated 17.1.77. as incorporated in annexure 3 to the writ petition. A further prayer has been made for the issuance of a writ of mandamus restraining the respondents from taking any action under the Employees' Provident Funds (and Family Pension Funds) Act, 1952 (hereinafter to be referred to as the Act).

2. By the impugned order (annexure 3) the petitioners have been asked to pay the amounts of money determined as employer's contribution to the provident fund purported to be made under section 7 A of the Act. The notice as contained in annexure 2 was issued to the petitioners prior to the passing of the aforesaid order.

3. The grounds on which the petitioners have sought relief’s aforementioned are that the Act, does not apply to the petitioners as Messrs Shankar Brothers petitioner no. 1 (a firm), is neither a factory nor an establishment employing 20 or more persons notified by the Central Government under section 1 (3) (b) of the Act. It has been asserted that petitioner no. 1 is not a factory engaged in any industry specified in schedule I of the Act. Furthermore, it did not at the relevant time and does not even today employ 20 persons or more in its establishment nor has the said firm been an establishment employing 20 or more persons as notified by the Central Government under section 1 (3) (b). The firm is entirely owned by Bandi Shankar Singh, petitioner no. 2, and right from its inception in the year 1951 it has been engaging itself in simple purchase and sale of mica. In the year 1974 the firm was registered under the Bihar Shops and Establishments Act, 1953 (Bihar Act, VIII of 1954) as employing only 18 persons. A copy of the registration certificate under the Bihar Shops and Establishments Act, has been annexed and marked annexure 1. The Regional Provident Fund Commissioner, respondent no. 2 it is alleged by the petitioners, "illegally allotted a code No. (B.R./ 2180) for the purpose of the Act, to the Shankar Brothers on the erroneous ground that the "Act applied to it, which was protested against". On 5-1-76 respondent no. 2 sent a notice to petitioner no. 2, purporting to Act, under section 7-A of the Act, calling upon him to show cause as to why amounts be not determined for payment by the petitioners to the employees provident funds employer's share for the period February, 1974 to November. 1975. That notice, as already mentioned above, is annexure 2. It is said that, since petitioner no. 2 was seriously III practically during the whole of the year 1976, he was prevented from standing the hearing of the proceeding before respondent no. 2. He always presented medical certificates in proof of his illness. On 17-1-77 ultimately respondent no.2 passed an ex-parte order (annexure 3) determining the amounts payable by the petitioners under the Act, and demanding their payments under threat of proceeding under section 8 of the Act.

4. A counter affidavit has been filed on behalf of respondent no. 2. The stand of the respondent is that the petitioner firm has, on its roll, more than 20 employees since before 21-1-74. The Inspector of respondent no. 2, during the course of his inspection on 18-2-75, on perusal of the attendance register of the petitioner firm dated 21.2.74, had reported that the petitioners establishment employed 24 persons. A true copy of the report has been marked annexure A to the counter-affidavit. It has also been stated that the Inspector of respondent no. 2 had submitted a further report dated 17.11.75 to the same effect, a true copy whereof has been marked annexure B to the counter-affidavit. On 16-1-76, it bas further been stated, the Manager of the petitioners appeared before respondent no. 2 and