Calicut City Service Co-operative Bank Ltd v. Employees' Provident Fund Organisation, Sub Regional Office, Eranhipalam, Calicut; Registrar of Co-operative Societies; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY ,THE 07TH DAY OF FEBRUARY 2019 / 18TH MAGHA, 1940** ## **WP(C).No.7388 of 2015** ## **PETITIONER:** **CALICUT CITY SERVICE CO-OPERATIVE BANK LTD NO.D 2777, CHALAPPURAM, KOZHIKODE 673 002, REPRESENTED BY ITS GENERAL MANAGER.** ## **BY ADV. SRI.P.P.JACOB** ## **RESPONDENTS:** - **1 THE EMPLOYEES PROVIDENT FUND ORGANISATION SUB REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, P.B.NO.1806, ERANHIPALAM P.O., CALICUT, PIN: 673 006, REPRESENTED BY THE ASSISTANT PROVIDENT FUND COMMISSIONER** - **2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM - 695 001.** - **3 THE STATE OF KERALA REPRESENTED BY SECRETARY TO LABOUR AND REHABILITATION (E) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **BY ADVS. SRI.THOMAS MATHEW NELLIMOOTTIL,SC, P.F. GOVT. PLEADER SMT RAHANA N.S.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.01.2019, THE COURT ON 07.02.2019 DELIVERED THE FOLLOWING:** **WP(C).No.7388 of 2015** **2** ## **[CR ]** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The writ petitioner is Calicut City Service Co-operative Bank Ltd. No.D 2777, Kozhikode. The petitioner states that Ext.P1 inspection report issued by the Enforcement Officer of the 1[st] respondent-Employees' Provident Fund Organisation is liable to be quashed and the 1[st] respondent should be prohibited from issuing any further demand to the petitioner relating to the remittance of Provident Fund amount. 2. In the writ petition, it has been stated that the petitioner is a Co-operative Society registered and functioning as per the provisions of the Kerala Co-operative Societies Act, 1969 ('the Act, 1969', for short). The 1[st] respondent has demanded the petitioner to remit **WP(C).No.7388 of 2015** **3** ₹92,54,606/- towards contribution of Provident Fund account as provided under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 ('the Act, 1952', for short). 3. The petitioner says that the State Government has issued G.O.(P) No.44/95/Co-op. dated 14.03.1995 whereby a pension scheme has been introduced covering the employees of the Co-operative Societies in the State, by name 'the Kerala Co-operative Employees Self Financing Pension Scheme, 1994'. The petitioner society has enrolled its employees as members of the aforesaid Pension Scheme, 1994. According to the petitioner, by introduction of the Pension Scheme, 1994, the employees of the petitioner joined the said scheme and made their contributions as per the scheme. As per Section 61 of the Act, 1969, the Society which established Pension Scheme will establish separate Provident Fund. It is also provided that contributory Provident Fund established under Section 61(1) of the Act **WP(C).No.7388 of 2015** **4** shall cease to operate in the case of existing employees who are brought under the Pension Scheme. Therefore, the petitioner contends that, the employees of the petitioner-Society covered by the Pension Scheme, 1994 are expressly excluded from the purview of the Act, 1952. 4. The petitioner contends that when the 1[st] respondent issued Ext.P1, the petitioner communicated with the 2[nd] respondent-Registrar of Co-operative Societies as per Ext.P4, requiring to give proper instructions regarding the steps to be taken based on Ext.P1 proceeding of the 1[st] respondent. However, the 2[nd] respondent has not responded to Ext.P4. In the circumstances, the petitioner-Society seeks to quash Ext.P1 and to prohibit the 1[st] respondent from issuing any demand under the Act, 1952. 5. The 1[st] respondent entered appearance and defended the case filing counter affidavit. According to the 1[st] respondent, the petitioner establishment is covered under the provisions of the Act, 1952 and the scheme framed **WP(C).No.7388 of 2015** **5** thereunder. The petitioner has been assigned code No.KR/KK/1046524. On failure of the establishment to comply with the provisions of the Act, 1952, the Enforcement Officer of the 1[st] respondent inspected the establishment and directed the petitioner to remit ₹92,54,606/-, as per Ext.P1. According to the 1[st] respondent, the petitioner has an alternate remedy by way of filing appeal before the Appellate Tribunal framed under the Act, 1952. The petitioner is having core banking business. Ext.P2 notification relating to the Kerala Co-operative Employees Self Financing Pension Scheme, 1994, is applicable for the Primary Co-operative Societies in Kerala. The petitioner has not produced any material to establish that it is a Primary Co-operative Society. Further more, the notification of the Government of Kerala makes it clear that it exempts the petitioner only from the Employees' Pension Scheme, 1995 of the 1[st] respondent. It does not exempt the petitioner from the Act, 1952 and other Schemes made under the Act. **WP(C).No.7388 of 2015** **6** 6. The 1[st] respondent further contended that the judgment reported in _**Kerala State Co-operative Employees Pension Board v. Udayakumar** [2012 (3) KLT 820]_ exempts the petitioner only from the provisions of the Employees' Pension Scheme, 1995 framed by the 1[st] respondent. Further more, the 1[st] respondent has filed R.P. No.1135/2012 against the judgment in 2012 (3) KLT 820. Therefore, the writ petition is without any merit and is liable to be dismissed. 7. I have heard the learned counsel for the petitioner and the learned Standing Counsel for the 1[st] respondent. The counsel for the petitioner contended that in view of the judgment reported in 2012 (3) KLT 820, the petitioner stands exempted from the provisions of the Act, 1952. The Government of Kerala has specifically introduced a separate pension scheme applicable to the employees working in various Co-operative Societies in Kerala. Therefore, the 1[st] respondent is not legally entitled to forcibly enroll the **WP(C).No.7388 of 2015** **7** employees of the petitioner in the Provident Fund Scheme under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. The learned counsel for the petitioner also brought to my notice the order in R.P. No.992/2016 and connected cases arising from the judgment reported in 2012 (3) KLT 820. The order in the R.P. is reported in _**Employees Provident Fund Organisation, Trivandum v. Kerala State Co-operative Employees Pension Board, Trivandrum**_ . _[2016 (5) KHC 414 (DB)]_ 8. According to the learned counsel for the petitioner, the issue involved in the matter is squarely covered by judgment of a learned Single Judge of this Court in W.P.(C) No.3507/2014, dated 25.06.2015. In the said judgment, the learned Single Judge, under similar circumstances, relied on 2012 (3) KLT 820 so as to hold that since the petitionerSociety therein opted to have an independent Provident Fund Scheme permissible under Section 61 of the Act, 1969, the 1[st] respondent cannot insist payment under the Central **WP(C).No.7388 of 2015** **8** Scheme. 9. The learned Standing Counsel for the 1[st] respondent argued that none of the judgments relied on by the counsel for the petitioner will apply to the facts of the case. The exemption given by this Court relates only to Pension Scheme. Since the petitioner is already subjected to a Pension Scheme framed under the Act, 1969, the Central Pension Scheme, 1995 may not apply to the petitioner. However, introduction of the said Self Financing Pension Scheme for the employees of the Co-operative Societies in Kerala will not exempt the Society from the liabilities under other Schemes under the Act, 1952. 10. I have considered the pleadings and the arguments made/raised on behalf of the petitioner and the respondents. 11. Section 5 of the Act, 1952 enables the Central Government to frame a Scheme to be called Employees' Provident Fund Scheme. By an amendment Act, Section 6A **WP(C).No.7388 of 2015** **9** was introduced in the Act, 1952 enabling the Central Government to frame a Scheme to be called the Employees' Pension Scheme. Going by the provisions of the Act, 1952, especially Section 16 thereof, it is clear that the said Act will apply to the Co-operative Societies functioning in Kerala and the Act will not apply only to those Co-operative Societies employing less than 50 persons and working without the aid of power. 12. Section 16(2), of course gives power to the Central Government to exempt any class of establishments from the operation of the Act, 1952, if having regard to the financial position of the establishments, the Central Government find it necessary or expedient to do so. The petitioner has no case that Co-operative Societies in Kerala like the petitioner are exempted by the Central Government from the provisions of the Act, 1952, invoking its powers under Section 16(2) of the Act, 1952. Rather, the contention of the petitioner is that under Section 80A of the Kerala **WP(C).No.7388 of 2015** **10** Co-operative Societies Act, 1969, the Government of Kerala has framed a self financing pension scheme for the benefit of the employees of Co-operative Societies. Introduction of the said Pension Scheme under the Act, 1969 may exclude the petitioner from enrolling its employees under the Employees' Pension Scheme framed by the 1[st] respondent in exercise of its powers under Section 6A, but it will not absolve the petitioner from adopting other Schemes framed under the Act, 1952. 13. The petitioner has a further contention that under Section 61 of the Act, 1969, a Society shall establish a Contributory Provident Fund for the benefits of its employees and therefore, any Contributory Provident Fund Scheme made by the 1[st] respondent can be applied to the petitioner in the place of Provident Fund Scheme of the 1[st] respondent. Even if the petitioner-Society has enrolled its members in the Contributory Provident Fund Scheme, if any, framed under Section 61 of the Act, 1969, even then the applicability of the **WP(C).No.7388 of 2015** **11** Provident Fund Scheme of the 1[st] respondent will not stand automatically excluded. For excluding the applicability of the Act, 1952 and the Provident Fund Scheme made thereunder, there should be a specific exemption given by the appropriate Government in exercise of Section 17 of the Act, 1952 and that too, can be made only by way of a notification in the official gazette. The petitioner has no case that the petitioner-Society has been exempted from the provisions of the Act, 1952 or from the provisions of the Provident Fund Scheme made thereunder by the appropriate Government. 14. The learned counsel for the petitioner strongly relied on the judgment of a learned Single Judge of this Court in W.P.(C) No.3507/2014 to contend that the petitioner is not liable to enroll its employees in the Provident Fund Scheme framed under the Act, 1952. I am of the opinion that the judgment in W.P.(C) No.3507/2014 will not be of any avail to the petitioner. The learned Single Judge has delivered the judgment in W.P.(C) No.3507/2014 on 25.06.2015 mainly **WP(C).No.7388 of 2015** **12** relying on the judgment in 2012 (3) KLT 820. However, subsequent to the judgment of the learned Single Judge, another Division Bench of this Court has reviewed the said judgment as per order dated 27.07.2016, reported in 2016 (5) KHC 414 (DB). In the said judgment, a Division Bench of this Court has categorically held that as long as there is no valid exemption/exclusion obtained, operation of the provisions of the Act, 1952, and the Pension Schemes formulated thereunder will survive. In view of the modification made to the Division Bench judgment reported in 2012 (3) KLT 820 (DB) by way of review thereof made as per the judgment reported in 2016 (5) KHC 414, the judgment of the learned Single Judge in W.P.(C) No.3507/2014 cannot be of any help to the petitioner. 15. True, any establishments can start there own Provident Fund Scheme or Pension Scheme and seek exemption from Provident Fund Scheme and Pension Scheme framed under the Act, 1952 requiring the **WP(C).No.7388 of 2015** **13** appropriate Government to invoke Section 17 of the Act, 1952, for exemption. If the appropriate Government grants exemption, the establishment can insist that the Schemes under the Act, 1952 cannot be applied to them. If an establishment is exempted from the applicability of Employees' Pension Scheme framed under Section 6A of the Act, 1952 specifically by a notification or by way of a judgment of a competent court, such exemption will be applicable only to the Pension Scheme. Exemption from Employees' Pension Scheme framed under Section 6A of the Act, 1952 will not exclude an establishment from all other Schemes framed under the Act, 1952, automatically. The petitioner has no case that the petitioner-Society has been granted exemption form the provisions of Section 5 of the Act, 1952 by the appropriate Government. In the circumstances, I am of the opinion that the petitioner is liable to enroll its employees under Section 5 of the Act, 1952 and pay contributions to the 1[st] **WP(C).No.7388 of 2015** **14** respondent-Organisation as per the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. The petitioner-Society is not entitled to the reliefs prayed for in the writ petition. The writ petition is, therefore, dismissed. Sd/- **N. NAGARESH, JUDGE** aks/04.02.2019 **WP(C).No.7388 of 2015** **15** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF THE ORDER DATED NIL ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER EXHIBIT P2 TRUE PHOTOCOPY OF THE ORDER NO.G.O. (MS) 44/06 DATED 19/6/2006 ISSUED BY THE SECOND RESPONDENT EXHIBIT P3 TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE PETITIONER TO THE FIRST RESPONDENT DATED 21/8/2014. EXHIBIT P4 TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE PETITIONER TO THE SECOND RESPONDENT DATED 19/9/2014 EXHIBIT P5 TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE PETITIONER TO THE SECOND RESPONDENT DATED 9/10/2014. EXHIBIT P6 TRUE PHOTOCOPY OF THE CIRCULAR ISSUED BY THE THIRD RESPONDENT DATED 27/4/2014.**