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3. No action appears to have been taken by the Department at that stage upon the request for voluntary coverage. On January 31, 1996, the office of the Regional Provident Fund Commissioner addressed a communication to the Petitioner stating that the establishment of the Petitioner was being brought within the purview of the Act and the scheme with effect from November 30, 1995. The Petitioner it must be noted had sought coverage on a voluntary basis under the provisions of Section 1(4). The letter of the Regional Provident Fund Commissioner dated January 31, 1996 provided that the establishment was being covered under Section 1(3)(b) as a trading and commercial establishment to which the provisions of the Act have been made applicable by the Government of India in a notification issued under Section 1(3)(b). The Petitioner was accordingly directed to implement the provisions of the Scheme with effect from December 1, 1995.

7. Counsel appearing on behalf of the Petitioner has urged that though an appeal would lie against an order under Section 14B by virtue of the provisions of Section 7I of the Act, no appeal is specifically provided for in respect of an order under Section 7Q. Moreover, it was urged that this Court would be justified in exercising the extraordinary jurisdiction under Article 226 since the basic submission of the Petitioner is that the proceedings which have been adopted by the Respondent are without jurisdiction. In the present case, it was sought to be urged that the Petitioner has less than 20 employees and therefore, Section 1(3)(b) of the Act had no application. The Petitioner had sought coverage under Section 1(4) of the Act and until date no notification has been issued by the Central Government nor is there any publication in the official gazette. In the circumstances, it was submitted that the amount which has been paid by the Petitioner in pursuance of the proceedings under Section 7A must be treated and regarded as an amount paid in pursuance of the application for voluntary coverage. Counsel urged that though the proceedings under Section 7A were without jurisdiction, the Petitioner does not seek a refund of the amount which has been paid, but in the interests of the employees, these amounts must be appropriated towards payment due upon the grant of voluntary overage to the establishment of the petitioner.

9. In the application for voluntary coverage under the provisions of the Act, the Petitioner had relied upon the agreement which was entered into with a majority of its employees and had sought coverage with effect from December 1, 1995. Section 1(4) has anon obstante provision, for it enables the Provident Fund Commissioner to apply the provisions of the Act notwithstanding anything contained in Section 1(3). Under Section 1(3) the Act applies (i) to every establishment which is a factory engaged in any industry specified in Schedule I and in which 20 or more persons are employed and (ii) to any other establishment employing 20 or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette specify in this behalf. There is no dispute about the factual position that the establishment of the Petitioner is not a factory as defined in Section 2(g) because no manufacturing process is carried on therein. Moreover, there is no dispute about the factual position that at no stage has the Petitioner employed more than 20 persons. The Petitioner has furnished the details of the total number of its employees in a chart at Exhibit A to the Petition which is not disputed. Therefore, in the facts of this case the provisions of Section 1(3) of the Act were clearly not attracted. The Petitioner sought voluntary coverage under Section 1(4) in its application dated September 4, 1995. The authorities, however, sought to cover the establishment of the Petitioner under Section 1(3) by a communication dated January 31, 1996. This was evidently erroneous. Indeed in the affidavit-in-reply which has been filed on behalf of the Respondent the submission which has now been set up is that the coverage which has been sought to be extended to the Petitioner is under Section 1(4). Counsel appearing on behalf of the Respondent has also fairly stated before the Court that the establishment of the Petitioner is covered not under Section 1(3) but under Section 1(4). Hence, it is on the anvil of Section 1(4) that the jurisdiction of the Respondent in adopting proceedings for the recovery of damages must be scrutinized.

11. Counsel appearing on behalf of the Respondent relied upon the proceedings which have been adopted under Section 7A of the Act and submitted that in pursuance thereof the Petitioner has complied with the order by depositing Provident Fund dues. Jurisdiction cannot be conferred by consent. The provisions of the Act cannot be made applicable merely by consent especially when a specified procedure is enunciated for voluntary coverage of an establishment under Section 1(4). The Petitioner has deposited the amount which was demanded in pursuance of the proceedings under Section 7A. This amount has to be treated and regarded as an amount deposited towards the contribution which is due in pursuance of the application for the grant of voluntary coverage. However, an application for the grant of voluntary coverage under Section 1(4) has to be dealt with on that basis, unless the Act otherwise applies under Section 1(3). In the present case, it has only been urged before the Court that the provisions of the Act are attracted by virtue of Section 1(3) of the Act. In that view of the matter, the proceedings which have been adopted under Section 14B read with Section 7Q are manifestly without jurisdiction and are unsustainable.