M.K. John v. Assistant Provident Fund Commissioner & Employees Provident Fund Appellate Tribunal, WA No. 451 of 2012

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH FRIDAY, THE 30TH DAY OF JUNE 2017/9TH ASHADHA, 1939 WA.No. 451 of 2012 () IN WP(C).23584/2011 ------------------------------------------AGAINST THE JUDGMENT IN WP(C) 23584/2011 of HIGH COURT OF KERALA DATED 31-08-2011 APPELLANT(S)/PETITIONER: ----------------------- SRI.M.K.JOHN, PROPRIETOR, M/S.PAUL & SON WOODESIGNS INDIA, BANERJI ROAD, ERNAKULAM, COCHIN-682031, RESIDING AT MANKUDIYAN HOUSE, AYYAPPANKAVU EAST, ERNAKULAM, COCHI-682018. BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI RESPONDENT(S)/RESPONDENTS: -------------------------- 1. ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANIZATION, SUB REGIONAL OFFICE, KALOOR, KOCHI-17. 2. THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, SCOPE MINAR, 4TH FLOOR, CORE-II, LAXMI NAGAR DISTRICT CENTRE, NEW DELHI-110006. R1 BY ADV. DR.S.GOPAKUMARAN NAIR (SR.) R1 BY ADV. SRI.A.RAJASIMHAN,SC,EPF ORGANISATION THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. ## K. SURENDRA MOHAN & K.P. JYOTHINDRANATH, JJ. - - - - - - - - - - - - - - - - - W.A. No. 451 of 2012 - - - - - - - - - - - - - - - - - Dated this the 30[th] day of June, 2017 ## JUDGMENT ## Surendra Mohan, J. This appeal is by the writ petitioner in W.P.(C) No. 23584 of 2011 against the judgment dated 31.8.2011 of the learned Single Judge dismissing the writ petition. 2. The short facts of the case are summarized as follows: The appellant is conducting a factory manufacturing wooden furniture, since 1982. The appellant has a small workshop for the purpose. In the factory, there were disputes between the management and the workmen which ultimately resulted in retrenchment of 24 employees out of the 42 who were originally working. It is stated that some of the W.A.451/2012. 2 remaining workers also ultimately left the service of the appellant, thereby reducing the number of his work force to 18. While so, the first respondent issued notices proposing to cover the establishment under the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act for short). The appellant disputed the coverage by filing objections and producing documents in support of his contention that the establishment did not employ the stipulated number of 20 workers. However, the first respondent by Ext.P3 held that the Act was applicable to the establishment and directed the appellant to remit contributions in respect of his employees for the period from September, 1989 to March, 1994. The appellant challenged the said proceedings in appeal before the 2[nd] respondent Tribunal. However, the appeal was dismissed by Ext.P7 order. The writ petition was filed by the appellant challenging Ext.P7. W.A.451/2012. 3 3. It was contended that Exts. P3 and P7 were arbitrary, ultra vires and liable to be set aside. The contentions of the appellant were refuted by the first respondent. After considering the contentions, the learned Single Judge has dismissed the writ petition finding that, since the establishment had employed more than 20 workers at one point of time, in view of Section 1(3) and (5) of the Act the coverage would continue though the number of employees may have dropped, at some later point of time. It is aggrieved by the said judgment that this appeal is filed. 4. According to the learned Senior Counsel, Sri.E.K. Nandakumar, who appears for the appellant, Section 1(3)(a) contemplates coverage of a factory engaged in an industry that is specified in Schedule I of the Act, in which 20 or or more persons are employed. Sub clause (b) of the said provision deals with the coverage of other establishments employing 20 or more persons. Therefore, according to the W.A.451/2012. 4 learned Senior Counsel, in order to attract coverage of the provisions of the enactment, it was necessary that the appellant's establishment was notified under Schedule I of the Act. Section 1(3)(b) has no application to factories and therefore, the stand of the 5[th] respondent in taking shelter under the said provision cannot be accepted. Our attention is drawn to the decision of a Division Bench of this Court in Thankamma Baby v. Employees Provident Funds Appellate Tribunal, New Delhi (2010 (127) FLR 353) wherein a similar argument has been considered and negatived. According to the learned Senior Counsel, a Special Leave Petition filed against the said judgment has been admitted by the Supreme Court and an interim order of stay granted. Therefore, it is contended that it is necessary for us to await the judgment of the Apex Court on the question. 5. According to the learned counsel for the first respondent on the other hand, Section 1(3)(a) and (b) of the W.A.451/2012. 5 Act are not mutually exclusive. The combined effect of both the provisions is to clothe the authorities with the necessary power to issue notifications covering all establishments irrespective of whether they were factories or not, provided the number of employees therein exceeded the prescribed limit of 20. Along with a memo dated 27.6.2017, the learned counsel has produced a copy of the notification dated 7.9.1962 by which, workshops producing wooden furniture have been directed to be covered by the provisions of the Act. The counsel contends that, a previous Division Bench judgment of this Court also has taken the very same view that the respective clauses (a) and (b) in Section 1(3) are not mutually exclusive. It is therefore contended that, the appeal is only to be dismissed. 6. Heard. Section 1 of the Act reads as under: “1. Short title, extent and application.- (1) This Act may be called the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. W.A.451/2012. 6 (2) It extends to the whole of India except the Sate of Jammu and Kashmir. (3) Subject to the provisions contained in section 16, it applies- (a) to every establishment which is a factory engaged in any industry specified in Schedule I and in which twenty or more persons are employed, and (b) to any other establishment employing twenty or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette, specify in this behalf: Provided that the Central Government may, after giving not less than two months' notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any establishment employing such number of persons less than twenty as may be specified in the notification. (4) Notwithstanding anything contained in subsection (3) of this section or sub-section (1) of section 16, where it appears to the Central Provident Fund Commissioner, whether on an application made to him in this behalf of otherwise, that the employed and the majority of employees in relation to any establishment have agreed that the provisions of this Act should be made applicable to the establishment, he may, by W.A.451/2012. 7 notification in the Official Gazette, apply the provisions of this Act to that establishment on and from the date of such agreement or from any subsequent date specified in such agreement. (5) An establishment to which this Act applies shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time falls below twenty.” As per sub-section (3) above, the Act applies to every establishment, which is a factory engaged in any industry specified in Schedule I, in which 20 or more persons are employed. As per clause (b), the Central Government is empowered to extend the provisions of the Act by the issue of a notification in the official Gazette to any other establishment employing 20 or more persons or class of such establishments. Therefore, in the first place the Act applies to all factories engaged in any of the industries specified in Schedule I of the Act. Secondly, it applies to any other establishment employing 20 or more persons or class of W.A.451/2012. 8 establishments which the Central Government by way of notification in the official gazette, specify. The contention advanced by the learned Senior Counsel for the appellant is that, in the case of factories, unless it is engaged in one of the industries specified in Schedule I, and is employing 20 or more persons, the Act would have no application. In other words, Section 1(3)(b) would have no application whatsoever to factories that are covered by Section 1(3)(a) of the Act. The counsel refers to Schedule I of the Act to point out that manufacture of wooden furniture is not one of the items enumerated therein. However, the said contention cannot be accepted, for more reasons that one. In the first place, Section 1 of the Act which deals with coverage of the provisions thereof has to be read as a whole. The provision has proceeded to deal with coverage first, by providing that it shall apply to every establishment which is a factory engaged in an industry specified in Schedule I and secondly, by providing W.A.451/2012. 9 that it will apply to any other establishment that may be notified by the Central Government with the common factor that the establishment under both the provisions should employ 20 or more persons. We are not willing to accept that, the legislature had intended to carve out an exception in the case of factories, for a different treatment, as contended. On the contrary, the object appears to be that, the legislature intended to cover both factories as well as other establishments, provided 20 or more persons were employed. We notice that, a Division Bench of this Court had considered a similar contention and negatived the same in Provident Fund Inspector, Quilon v. Kerala Janatha Printers And Publishers Ltd. [(1965 KHC 138=1965 KLT 507)]. In the said case, it was contended that, Section 1(3)(a) of the Act would apply only to a factory engaged in an industry specified in Schedule I. The Act further confers a power on the Central Government as per Section 4 to add any other industry to Schedule I by W.A.451/2012. 10 notification in the official Gazette. Therefore, it was contended that, Section 1 (3) (b) was exclusive and contemplates only establishments that are not factories. The contention has been considered and negatived in the following words: “9. The argument appears to be ingenious; and its ingenuity equals its fallacy. By clause (a) of sub-s.(3) of S.1 only factories employing twenty or more men engaged in specified industries are brought within the Provident Funds Act. To all other establishments, factory or non factory, whether engaged in industry or otherwise, the Act may be applied by resorting to notification under clause (d) of sub-s.(3) of S.1. Factories engaged in industries other than those mentioned in Schedule I may also be brought within the ambit of the Act by a notification under S. 4, thus adding to Schedule I. What S.15 of the Working Journalists Act does is not to bring newspaper establishments within Schedule I of the Act. Newspaper establishments may still be brought within the scope of the Act by notification under clause (b) of sub-s.(3) of S.1, whether they are factories or not, whether they are engaged in industries or not; because, clause (b) applies W.A.451/2012. 11 to all establishments, factories or otherwise, with the only exception of factories engaged in the industries specified in schedule I. 10. If the history of the amendments to the Provident Funds Act is borne in mind, the position will be clear. The Provident Funds Act of 1952 was intended to apply only to factories. But in 1956, by Act 94 of 1956, sub-s.(3) of S.1 was amended so as to widen the scope of the Act and to bring non factory establishments also within its ambit by notification by the Central Government. The present position therefore is that if a factory engaged in a particular industry is to be brought within the scope of the Act, it may be done by adding to Schedule I under S.4. If on the other hand, any establishment, factory or non factory, whether engaged in industry or not, is to be brought within the Act, that can be done by issuing a notification under clause (b) of subs.(3) of S.1.” 7. A Division Bench of the Gujarat High Court in Ojas Corporation v. The Regional Provident Fund Commissioner (1970 (11) GLR 164) has also considered and negatived a similar contention, in the following words: W.A.451/2012. 12 “5. The word “establishment” is used not only in Sub-section (3) but also in some of the other sections of the Act, for example, Sections 16 and 17 and Subsections (4) and (5) of Section 1. It appears that the word “establishment” has been used as a genus of which the factory is a species. Clause (a) of Sub-section (3) makes the Act applicable to every establishment which is a factory and which is engaged in any industry specified in Schedule I. Clause (b) of that subsection makes the Act applicable to “any other establishment” or class of establishments which the Central Government may, by notification in the Official Gazette, specify. There are no restrictive words used in Clause (b) which would indicate that the application of the Act by a notification must be limited to cases which are not factories. On a plain reading of Clauses (a) and (b) it appears that Clause (b) would apply to any other establishment, whether such establishments are or are not factories. It would be seen that Clause (a) of Sub-section (3) of Section 1 relates to establishments which are factories engaged in industries specified in Schedule I and thus it has not been made applicable to all the factories but only to those which have been specified in Schedule I. The Act can be made applicable to industries which are specified in Schedule I and on such inclusion, the factories engaged in the W.A.451/2012. 13 industry so included, would be covered by the Act. But establishments other than those not falling within the scope of Clause (a) cannot be covered unless a notification to that effect was issued. A plain reading of these two Clauses together does not indicate that these two clauses could be read as mutually exclusive of each other. All that the two clauses purport to achieve is that they divide establishments into two parts-- one being factories engaged in a scheduled industry and the other, establishments whether factories or non-factories in respect of which a notification has been issued by the Central Government.” We notice that what was under challenge in the above case was the notification dated 7.9.1962 on which reliance is placed by the counsel for the first respondent. 8. As pointed out by the learned Senior Counsel for the appellant, a similar view has been taken by this Court in Thankamma Baby v. Employees Provident Funds Appellate Tribunbal, New Delhi (supra). This Court has considered the very same contention and has negatived the same, after W.A.451/2012. 14 referring in detail to the various decisions on the point. We are in respectful agreement with the dicta in the judgments referred to above. 9. In view of the above authoritative pronouncements, we are of the firm view that, Section 1(3)(a) and (b) are not mutually exclusive. The Central Government has sufficient power to notify factories or other establishments, irrespective of the difference in their nomenclature in exercise of their power either under Section 1(3)(a) or under Section 4 of the Act. The notification, G.S.R. 1232 dated 7.9.1962 on which reliance is placed by the learned counsel for the first respondent is seen issued in exercise of the power under sub section (3) of Section 1 of the Act. As per the notification, establishments engaged in processing and treatment of wood including manufacture of wooden furniture as well as wood workshops are brought within the coverage of the Act. The said notification is not W.A.451/2012. 15 under challenge in these proceedings. We notice that a challenge against the said notification was repelled by the Gujarat High Court in the decision in Ojas Corporation v. The Regional Provident Fund Commissioner (supra). This Court has also taken the consistent view that both the sub clauses in Section 1(3) are to be interpreted as empowering the Central Government to notify establishments or factories either under Section 1(3)(a) or (b), as deemed fit. The above being the position, we find no grounds to grant any of the reliefs sought for in this writ appeal. The same is accordingly dismissed. Sd/- - K. SURENDRA MOHAN JUDGE Sd/- K.P. JYOTHINDRANATH JUDGE sb