Gauhati High Court
The Assam Khadi And Village Industries ... vs The Employees Provident Fund ... on 30 January, 2024
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/7
GAHC010119032015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4432/2015
THE ASSAM KHADI AND VILLAGE INDUSTRIES BOARD
REP. BY ITS CHIEF EXECUTIVE OFFICER, CHANDMARI, GUWAHATI-3.
VERSUS
THE EMPLOYEES PROVIDENT FUND ORGANIZATION and 2 ORS
MINISTRY OF LABOUR, GOVT. OF INDIA, REGIONAL OFFICE, NORTH
EAST REGION, BHANGAGARH, GUWAHATI- 781005, ASSAM.
2:THE REGIONAL PROVIDENT FUND
COMMISSIONER
REGIONAL OFFICE
NE REGION
BHANGAGARH
GUWAHATI-5.
3:THE ASSISTANT PROVIDENT FUND COMMISSIONER
REGIONAL OFFICER
NE REGION
BHANGAGARH
GUWAHATI-5
Advocate for the Petitioner : MR.I KALITA
Advocate for the Respondent : SC, ASSAM KHADI and VILLAGE INDUSTRIES BOARD
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BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT
Date : 30-01-2024
1. The instant writ petition has been filed by the petitioner challenging the
order dated 29.05.2015 whereby the petitioner was directed to pay an amount of Rs.
9,46,13,316.00. The petitioner has also challenged the order dated 28.07.2015,
issued by the Assistant P.F. Commissioner (Compliance) whereby the bankers of the
petitioner were directed to credit the amount of Rs. 9, 46, 13,316.00 within 3 (three)
days in favour of the Regional Provident Fund Commissioner (NER), Guwahati.
2. This Court heard the learned counsel appearing on behalf of the
petitioner, Mr. PK Munir as well as Mr. PK Roy, learned Senior Counsel for the
respondent authorities. The challenge in the instant proceedings is on the ground
that the said impugned order was passed without taking into consideration of
Section 16 (1)(c) of the Employees' Provident Fund and Miscellaneous Provisions Act,
1952 (for short, "the Act of 1952") in the proper prospective in as much as the
petitioner had framed a set of Rules, known as the Assam Khadi and V.I. Board
Contributory Provident Fund Rules, 1962 (for short, "the Rules of 1962") and the
said Rules provide for contributory provident fund in favour of its employees for
which the Act of 1952 could not be applied.
3. Mr. P.K. Roy, the learned senior counsel for the respondent authorities per
contra had submitted that though the Rules of 1962 provide for a contributory
provident fund but the said Rules are not applicable to various categories of staff of
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the petitioner as it would be apparent from a perusal of Rule 4(3)(ii) & (iii) which
stipulates that the daily wage employees of the Board as well employees whose
terms of employment are governed by special contracts cannot subscribe to the
fund. The learned counsel for the Respondents further drew the attention of this
Court to Section 2(f) of the Act of 1952 wherein the term "employee" has been
defined and submitted that within the ambit of the said definition employees who
are employed by or through a contractor with the works of the establishment would
come and therefore the exclusion made by the Rules of 1962 in respect to those
contractual employees as well for daily wage employee brings the petitioner within
the ambit of the Act of 1952. The learned senior counsel draw the attention of this
Court to the judgment of the Supreme Court in the case of Pawan Hans Limited
and others versus Aviation Karmachari Sanghanata and others, reported in
(2020) 13 SCC 506 and specifically referred to paragraph Nos. 10.2, 10.3,
10.3.1,10.3.2 as well as 10.5. Taking into account the relevance of those paragraphs
so cited, the same are reproduced herein under:
"10.2. Sub-section (1) of Section 16 reads as:
"16. Act not to apply to certain establishments.-(1) This Act shall not apply-
(a) to any establishment registered under the Cooperative Societies Act, 1912 (2 of 1912), or
under any other law for the time being in force in any State relating to cooperative societies
employing less than fifty persons and working without aid of power; or
(b) to any other establishment belonging to or under the control of the Central Government
or a State Government and whose employees are entitled to the benefit of contributory
provident fund or old age pension in accordance with any scheme or rule framed by the
Central Government or the State Government governing such benefits; or
(c) to any other establishment set up under any Central, Provincial or State Act and whose
employees are entitled to the benefits of contributory provident fund or old age pension in
accordance with any scheme or rule framed under that Act governing such benefits;
(2) If the Central Government is of opinion that having regard to the financial position of
any class of establishments or other circumstances of the cases, it is necessary or expedient
so to do, it may, by notification in the Official Gazette, and subject to such conditions as may
be specified in the notification, exempt whether prospectively or retrospectively, that class of
establishments from the operation of this Act for such period as may be specified in the
notification."
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10.3. This Court in Provident Fund Commr. V. Sanatan Dharma Girls Secondary School laid
down in twin-test for an establishment to seek exemption from the provisions of the EPF Act,
1952. The twin conditions are:
10.3.1. First, the establishment must be either "belonging to" or "under the
control of" the Central or the State Government. The phrase "belonging to"
would signify "ownership" of the Government, whereas the phrase "under the
control of" would imply superintendence, management or authority to direct,
restrict or regulate.
10.3.2. Second, the employees of such an establishment should be entitled to
the benefit of contributory provident fund or old age pension in accordance with
any scheme or rule framed by the Central Government or the State Government
governing such benefits.
10.5. With respect to the second test, it is relevant to note that the Company had its
own Scheme viz. The Pawan Hans Employees Provident Fund Trust Regulations in
force. The Company however restricted the application of the PF Trust Regulations
to only the "regular" employees. The PF Trust Regulations of the Company were
not framed by the Central or the State Government, nor were they applicable to all
the employees of the Company, so as to satisfy the second test."
4. In the backdrop of the above, this Court have also perused the impugned
order dated 29.05.2015. A perusal of the said impugned order categorically shows
that the contention of the petitioner was duly noted to the effect that in view of the
Rules of 1962, the petitioner would not come within the ambit of the Act of 1962.
However, the findings which have been arrived at is that the PF Scheme of the
petitioner have not been found to extend social security benefits to the employees
and such benefits as a whole are neither at part, nor more beneficial than the
benefit provided under the Act of 1952. The impugned order, however does not, in
any manner, deal as to whether in view of the Rule 4(3) (ii) & (iii) of the Rules of
1962, Section 16(1)(c) of the Act of 1952 would not be applicable in so far as the
petitioner is concerned. Rather, the findings arrived at by the impugned order are on
the comparison of the benefits. The said findings upon a reading of Section 16(1)(c)
of the Act of 1952, in the opinion of this Court, is not in consonance of the Act of
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1952. The rationale behind this opinion of this Court is that a reading of Section
16(1)(c) of the Act of 1952 mandates that the provision of the Act of 1952 shall not
be applicable to any other establishment set up under the Central, Provincial or
State Act and whose employees are entitled to the benefits of contributory provident
fund or old age pension in accordance with any scheme or rules framed under such
Act governing such benefits. The said provision does not deal with the question of
comparative benefits in terms with the Act of 1952 vis-a vis the benefits so accrued
upon the employees of an establishment set up by any Central, Provincial or State
Act in scheme or Rule framed. Therefore, this Court set aside the impugned order
dated 29.05.2015 for the reason above mentioned.
5. This Court had duly taken note of the submissions of Mr. PK Roy, the
learned senior counsel to the effect that the Rules of 1962 do not provide benefits of
the contributory provident fund to daily wage employees as well as the contractual
appointees as such employees cannot subscribe to the fund. This Court had also
take a note of the judgment of the Supreme Court in the case of Pawan Hans
Limited and others (supra) and particularly to paragraph 10.5 as quoted above.
However, these aspect which has been argued by the learned counsel appearing on
behalf of the respondents though seems to be attractive but are not the basis on
which the impugned order was passed. In this regard, this Court finds it relevant to
refer to the judgment of the Supreme Court in a case of Gordhandas Bhanji Vs.
Commissioner of Police, Bombay reported in AIR 1952 SC 16 wherein it was
duly observed that the public orders made publicly has construed objectively with
reference to language used in the order itself and not in the explanation queue
subsequently. The said principles have also been reiterated in the judgment of the
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Constitution Bench of the Supreme Court in the case of Mohinder Sing Gill and
another Vs. The Chief Election Commissioner New Delhi and others ,
reported in (1978) 1 SCC 405 more particularly in paragraph No. 8, which is
reproduced herein under:
"8. The second equally relevant matter is that when a statutory functionary
makes an order based on certain grounds, its validity must be judged by the
reasons so mentioned and cannot be supplemented by fresh reasons in the
shape of affidavit or otherwise. Otherwise, an order bad in the beginning
may, by the time it comes to court on account of a challenge, get validated
by additional grounds later brought out. We may here draw attention to the
observations of Bose J. In Gordhandas Banji (AIR 1952 SC 16) at P. 18) :
"Public orders publicly made, in exercise of a statutory authority cannot be
construed in the light of explanations subsequently given by the officer
making the order of what he meant, or of what was in his mind, or what he
intended to do. Public Orders made by the public authorities are meant to
have public effect and are intended to affect the acting and conduct of
those to whom they are addressed and must be construed objectively with
reference to the language used in the order itself."
6. Taking account the above, this Court therefore set aside the impugned
order dated 29.05.2015 as well the consequential order dated 28.07.2015 for the
reasons above mentioned. Before parting with the record, this Court however, makes
it clear that the above observations and the instant decision of setting aside the
impugned order dated 29.05.2015 as well as the consequential order would not
preclude the respondent authorities to initiate de novo proceedings against the
petitioner in respect to the period for which the impugned order was passed. It is
however, observed that if such proceedings are initiated the same should be done so
in accordance with prescription of law.
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7. With above directions and observations, the instant writ petition
therefore stands disposed of.
JUDGE
Comparing Assistant
