KUNHIPALY Vs. REGIONAL PROVIDENT FUND COMMISSIONER
LAWS(KER)-1964-9-45
HIGH COURT OF KERALA
Decided on September 15,1964

KUNHIPALY Appellant
VERSUS
REGIONAL PROVIDENT FUND COMMISSIONER Respondents

JUDGEMENT

- (1.) Two questions have been raised by this writ application by the employer. By Ext. P. 5, a demand notice issued by the 2nd respondent, the Tahsildar, Alwaye, at the instance of the 1st respondent, the Regional Provident Fund Commissioner. Trivandrum, a sum of Rs.7907.25 was claimed from the petitioner as due from him towards arrears of provident fund contribution that the petitioner had to make under the Employees' Provident Funds Act, 1952 and the Scheme framed thereunder for the period from February 1960 to March 1963. This demand it is admitted by counsel on behalf of the petitioner, relates only to contributions to be made by the employer. This demand evidenced by Ext. P. 5 is sought to be quashed.
(2.) The ground relied on is that certain provisions of the Employees' Provident Funds Act under which the demand is made are ultra vires the powers of the legislature. Counsel on behalf of the petitioner argued that S.6, 7, 8 and 14 of the Employees' Provident Funds Act and Para.29 of the Scheme an ultra vires the legislative powers in that those provisions infringe Art.19(1)(f) and Art.31 of the Constitution. In support of this contention, reliance was placed on the decision of the Supreme Court reported in Bombay Dyeing & Manufacturing Co. Ltd. v. The State of Bombay and Others ( AIR 1958 SC 328 ). What has been held in that case is that S.3(1) of the Bombay Labour Welfare Fund Act is bad as it infringed Art.31(2) in that it deprived the appellant of his monies without giving any compensation. It is impossible to come to the conclusion that the liability to make contributions towards provident fund under the Provident Funds Act and the scheme thereunder is deprivation of property without compensation therefor. It has come to be recognised that a scheme for provident fund is desirable and that it should be introduced in the welfare of the workmen in industrial establishments. So a number of awards have been passed even in regard to establishments that will not fall within the purview of the Employees' Provident Funds Act introducing schemes towards provident fund. The legislature perhaps was not satisfied with the slow progress made towards the introduction of the Provident Funds Scheme in various industries functioning in the State and has therefore deemed it necessary by a quicker process to introduce the scheme in specified industries. The liability is imposed on an employer which naturally and inevitably results in the deprivation of property. But as it is directly linked with the services rendered by the workmen in the establishment, it is impossible to hold that there is deprivation of property without compensation. This is similar to the insistence under the provisions of the Minimum Wages Act that the minimum wages fixed should be paid. That statute has been upheld by the Supreme Court in a decision reported in Bijay Cotton Mills Ltd. & Others v. State of Ajmer ( AIR 1955 SC 33 ). I think that the principle of that should govern this case also and so I negative the contentions of counsel on behalf of the petitioner.
(3.) Counsel on behalf of the petitioner then urged that the notice Ext. P.1 stating that the petitioner is liable to contribute from 1-2-1960 to 27th September, 1962 cannot in any event be sustained. According to him till the authorities under the statute came to the conclusion that the Act is applicable to a particular unit and made a demand for the dues, there can be no liability. He relied on the rulings of the Calcutta High Court in Aluminium Corporation of India v. Regional Provident Fund Commissioner & Others ( AIR 1958 Cal. 570 ) and of the Madras High Court in K. R. Subbaiar v. The Regional Provident Fund Commissioner, Madras ( AIR 1963 Mad. 112 ) in support of the proposition that he urged that the provisions in the statute, the Employees' Provident Funds Act and the Scheme, indicate that they become operative only on and from the point of time when the authorities hold that a particular unite is within the ambit of the Act and make consequential demand in terms of the Act and the Scheme. Counsel seems to be supported by these decisions. But with all respect to the learned Judges I am unable to accept what is stated in those decisions. The Act comes into operation by its own vigour. It applies if the conditions stated in the Act are satisfied to all the industries mentioned in the Act. It is not the case of the petitioner that because the conditions under the statute have not been satisfied the Act was not applicable for the period from 27th September, 1962. All that is said is that it is only on the communication from the authorities that the provisions become operative. It seems to me that this contention cannot be accepted. The operation of the statute does not depend on any decision being taken by the authorities under the statute. It depends on its own provisions. That seems to be the view taken by this Court in Kokkalai Rice and Oil Mills, etc. v. Regional Provident Fund Commissioner (1960 (II) LLJ 528) which has apparently been approved by the Supreme Court in the decision reported in Associated Industries (Private) Ltd. v. Regional Provident Fund Commissioner, Kerala (1963 (II) LLJ 652).;


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