The burden of proof lies on the employer to establish that the employees found on the premises during inspection were not regular employees.

1. - This intra-court appeal is directed against order of the ld. Single Judge dated 24/02/2014.

2. The brief facts, which can be noticed on perusal of the material available on record, are that a survey was conducted by the officers of the respondent at the business/factory premises of the appellant on 11/12/1997 and it was noticed that at the particular time when inspection was carried, 27 employees were found at the business premises and finding that the employees were in excess in the employment of the appellant, the case of the appellant was covered under the provisions of the Employees' Provident Fund & Miscellaneous Provisions Act, 1952 (for short, 'the Act, 1952') whereas the claim of the appellant was that the inspection was carried at lunch hours and 17 employees working in the adjacent companies/factories came to the premises of the appellant who were in no way connected with the appellant and thus the appellant was not liable to be subjected to the jurisdiction of the Act, 1952 and thus the proceedings initiated were bad in law. Proceedings u/Sec. 7-A of the Act, 1952 were initiated to determine the dues and a show cause notice was issued on 04/03/1999 to deposit the provident fund and other dues as contained in the show cause notice dated 04/03/1999. It has been observed by the Assistant Provident Fund Commissioner & officer Incharge in its order dated 10/10/2001 passed under Section 7-A of the Act, 1952 that as many as 15 opportunities were granted and the counsel initially appeared on behalf of the appellant but was unable to report the compliance even of the show cause notice. It is also observed by the officer that neither the partner nor any representative of the appellant attended the enquiry and thus the respondent was compelled to pass order on the basis of the material available on record. It has been further observed that despite innumerable opportunities afforded, the appellant was unable to prove as to how and in what manner 17 employees had come from the surrounding factories to take lunch at the factory premises of the appellant and thus, the order was passed fixing liability of the Employees' Provident Fund to be deposited along with interest, penal damages etc.

3. The said order dated 10/10/2001 was assailed by the appellant before the Employees Provident Fund Appellate Tribunal (for short, 'Tribunal') and it was reiterated that the appellant never employed more than 10 persons and it was further reiterated that the other employees/workers of surrounding factories came to take food in the canteen being run by the appellant. The Tribunal, after analysing the facts and material, came to the conclusion that presence of 27 persons at the premises of the appellant is not disputed and employment of 10 persons is also not disputed by the appellant. However, the appellant, even before the Tribunal, failed to lead any evidence as to how and in what manner the other 17 persons had come to take food in the canteen being run by the appellant and accordingly dismissed the appeal of the appellant vide order dated 16/02/2010.

4. The matter was further assailed by the appellant before the ld. Single Judge, who vide order impugned dated 24/02/2014, upheld the order passed by the Tribunal. Hence this intra-court appeal.

5. Ld. counsel for the appellant contended that no proper and adequate opportunity was granted to the appellant and thus the order passed by the authority itself is unjust. He further contended that material was placed on record and it was conveyed that in so far as the appellant is concerned, it had only 9 employees in number i.e. below 10 and in this regard, the attendance register and other material was placed on record to justify that there were only 9 employees working under the establishment of the appellant. He further contended that the canteen itself could not cater the requirement of more than 10 persons and the inspecting team also found as a fact that the canteen was only meant for 1