A.M. Khanwilkar, J. - (1.) The present civil appeal arises from the judgment and final order passed by the High Court of Judicature at Bombay, Nagpur Bench dated 17th January, 2012 in Writ Petition No. 4013 of 2011. The High Court has dismissed the aforesaid writ petition filed by the appellant, which had assailed the order of the Employees Provident Fund Appellate Tribunal (for short 'Tribunal') dated 8th April, 2011 whereby it was held that the appellant is deemed to have defaulted in depositing the provident fund contributions of 16 (sixteen) of its part-time employees.
(2.) Before dealing with the legal submissions and issues, it would be apposite to set out the factual matrix leading to the filing of the present appeal: a) The appellant is a registered society under the Societies Registration Act, 1860 and Bombay Public Trusts Act, 1950 and runs 29 (twenty nine) schools and junior colleges in the Wardha District, Nagpur. Out of which, 28 (twenty eight) schools and colleges purportedly received 100% grant-in aid from the State Government. b) Between 1996 and 1997, due to administrative exigency 16 part-time librarians were appointed to some of the appellant's colleges, with the permission/approval of the State Government. These librarians worked for lesser hours as opposed to the working hours put in by regular, full-time employees. The appellant contends that the entire process of appointment and approval was monitored and supervised by the State Government. Further, the appellant did not possess any direct control over the payment of or deductions to the salaries of its employees. It is done by the State Authorities. c) On 5th May, 1998, the appellant forwarded a bill of one of the part-time librarians to the Education Officer, with a request to deduct the provident fund. This request was declined vide a letter dated 19th November, 1998, with a direction not to deduct provident fund contributions of such part-time employees. Subsequently, on 5th March, 2004, the Director of Education issued a letter clarifying that the contributory provident fund scheme was not applicable to such part-time employees. In view of the aforesaid communications, the appellant had reason to believe that it was not supposed to deduct and/or deposit provident fund contributions of its 16 part-time employees. d) On 6th October, 2005, the officers of Respondent No.1 visited one of the schools of the appellant and sought details of the employees and payments made on their behalf vis-a-vis provident fund contributions. e) The appellant submitted its response to the aforesaid query vide its letter dated 18th October, 2005, wherein the appellant mentioned that as per the law, it was not required to deduct provident fund contributions of the concerned part-time employees. f) The appellant, however, received a summons from Respondent No.1 dated 23rd May, 2006, to appear in connection with failure to remit provident fund dues of its employees. Further correspondence in that regard ensued between the parties and adjournments were taken in the matter. g) Ultimately, Respondent No.1 heard the matter and passed an order dated 1st August, 2007, holding that the appellant was liable to pay a sum of Rs. 16,89,796/- as outstanding provident fund contributions. h) The appellant then filed a review application dated 14th September, 2007 against the aforesaid order, on the ground that Respondent No.1 had failed to appreciate certain material submissions and objections raised at the time of hearing. Respondent No.1 dismissed the said review with a one-page order, without granting a hearing. i) During the abovementioned proceedings, 3 (three) out of 16 part-time librarians of the appellant were regularized w.e.f 29th September, 2007. Another librarian was regularized w.e.f. 29th September, 2009. This was done with the approval of the State Authorities. j) Aggrieved by the aforesaid order passed by Respondent No.1, the appellant filed an appeal before the Appellate Tribunal, which rejected the appeal vide its order dated 8th April, 2011 inter alia on the ground that there was no difference between full-time and part-time employees and thus the appellant was bound to deduct/pay the provident fund contributions in respect of the part-time employees. k) Respondent No.1 thereafter issued a demand notice dated 10th May, 2011 to one of the schools of the appellant for payment of the due amount by 25th May, 2011. That was followed by a show cause notice as to why a warrant of arrest be not issued by Respondent No.1, dated 23rd June, 2011. The appellant replied to the said show cause notice vide its letter dated 8th July, 2007, asking for one week time to pay the amount as demanded. l) In the meanwhile, the appellant also filed Writ Petition No.4013 of 2011 before the High Court, challenging the order dated 8th April, 2011 passed by the Appellate Tribunal. The High Court stayed the order and directed the appellant to deposit Rs. 4 lacs in court, which it duly complied with. m)Ultimately, on 17th January, 2012, the High Court was pleased to dismiss the said writ petition.
(3.) In light of the above factual matrix, the present appeal raises the question of interpretation of Rule 20 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, as framed under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short 'the State Rules' and 'the State Act' respectively); as also of Section 16 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for short 'the Central Act'). The primary issue is: Whether in the present case, the provisions of the Central Act will apply to the part-time employees in the schools/colleges of the appellant, whose service conditions are governed by the provisions of the State Act and State Rules. The relevant provisions are reproduced hereinbelow: Section 16 of the Central Act reads as: "(1) This Act shall not applya) a) to any establishment registered under the Co-operative Societies Act, 1912 (2 of 1912), or under any other law for the time being in force in any State relating to co-operative societies, employing less than fifty persons and working without the 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 case, it is necessary or expedient so to do, it may, by notification in the Official Gazette, any 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.]" Section 20 of the State Rules reads as: "20. Provident Fund (1) Every employee (not being an employee who has opted for pension) of an aided or unaided school working on a full time basis or every employee employed on part-time basis in more than one school run by the same Management and doing full-time load of work in these schools, shall subscribe to the Contributory Provident Fund under the Contributory Provident Fund Rules (Bombay) as in force from time to time. (2) Every employee of an aided private secondary school working on a full time basis who was appointed before the 1st April 1966 and who had exercised in writing his option for a Contributory Provident Fund Scheme shall subscribed to that Fund as per rules made by Government and are in force in this behalf.";