Decided on December 19,1969



- (1.) THIS petition under Articles 226 and 22? of the Constitution is directed against- (i) an order dated February 8, 1967 holding that the provisions of the employees Provident Funds Act, 1952 (hereinafter called the Act) were rightly applied to the petitioner's establishment; (ii) an order dated April 15, 1967 declining to review the order regarding the applicability of the Act to that establishment; (iii) a notice dated June 21, 1967 intimating to the petitioner the provisional assessment and permtting him, if he so desired, to make any representation against it; and (iv) an order dated October 81, 1967 making the provisional assessment final.
(2.) THE facts giving rise to this petition may be shortly stated. The petitioner carries on the business of manufacture and sale of bidis at Rajnandgaon. The bidi-making industry is not one of the industries specified in Schedule I to the Act. Even so, by a notification No. G. S. R. 346 dated March 17, 1962, issued under Section 1 (3) (b)of the Act, the Central Government applied the provisions of the Act to certain trading and commercial establishments. That notification reads: "g. S. R. 346. In exercise of the powers conferred by Clause (b) of Subsection (3) of Section 1 of the Employees" Provident Funds Act, 1952 (19 of 1952), the Central Government hereby applies the said Act with effect from 30th April 1962 to every Trading and Commercial establishment employing twenty or more persons each and engaged in the purchase, sale or storage of anv goods, including establishments of exporters, importers, advertisers, commission agents and brokers and commodity and stock exchanges but not including part of warehouses established under any Central or State Act. " The respondent endeavoured to apply the provisions of the Act to the petitioner's establishment and that led to some correspondence between them. Ultimately, the petitioner's objection to the applicability of the Act was rejected and, by a communication dated June 28, 1966, he was intimated that the Act applied to that establishment. The petitioner then filed in this Court Miscellaneous Petition No. 387 of 1966 and challenged the action taken by the respondent. That petition and several other like petitions were disposed of by a common order passed on november 9, 1966 in Radhaldshan Narayandas v. Regional Provident Fund commr. Madhya Pradesh, 1967 M. P. L. f. 71 = (AIR 1967 Madh. Pra. 157 ). It was then held that Clause (b) of Section 1 (3) of the Act was wide enough to apply to all non-factory establishments. It was further held that when a notice under section 7a of the Act was given to the employer, it was open to him to represent his case fully not only on the question of applicability of the provisions of the Act to his establishment but also in regard to the amount payable by him under those provisions. The Court disposed of the case by making the following observations: "before us, it was admitted on behalf of the Commissioner that in none of the cases before us an order tinder Section 7-A finally determining the amount due from the employer concerned had been made. Having regard to the fact that the implications of the Act and the Scheme were not understood by all concerned for a long time after the Act was applied by the notification dated the 17th. March 1962 to trading and commercial establishments, the Commissioner rightly and commendably expressed before us his willingness to give to the petitioners, who bad not appeared before him and showed cause in response to the' notices issued to them, an opportunity of representing their case before making any final order under Section 7a against any one of them. The commissioner agreed to hear such petitioners on 15th December 1966".
(3.) FOLLOWING the decision of this Court on 9-11-1966 the petitioner made two representations dated 30-11-1966 and 15-12-1966 stating inter alia that the information given in Annexure X dated July 24, 1965 was incorrect in material particulars. In the impugned order dated February 8, 1967, the respondent referred to a recent report of the Provident Fund Inspector showing that there was a common establishment, including trading and commercial unit and manufacturing unit, that the staff commonly employed for both the units was liable to be taken into account for purposes of Act and that, in view of the information contained in Annexure X, the provisions of the Act were rightly applied to the petitioner's establishment. On a further representation dated February 15, 1967, the respondent indicated that the subsequent report of the Provident Fund inspector did not relate to the question of applicability of the Act to the petitioner's establishment and that although that establishment was a composite unit, that was no ground for reviewing the earlier order regarding the applicability of the Act to it. In adopting mat attitude, the respondent observed: "the documents submitted under your letters dated 2-12-1966 and 812-1966 could not be taken in evidence to review your case regarding applicability of the Act, as your earlier conduct in furnishing the information in Annexure X in respect of non-factory establishment in a bona ride way, acted as an estoppel". The other two impugned communications dated June 21, 1967 and October 31, 1967 relate to the amount found payable by the petitioner under the provisions of the Act. Having made payments towards the provident fund under protest, the petitioner has moved this Court for relief on the several grounds mentioned in paragraphs 3 and 4 of the petition.;

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