- (1.) LEARNED counsel for the petitioner has raised the following 3 questions :- (1) that the petitioner was not given opportunity of being heard by the Provident Fund Commissioner, (2) that the 3 sons of the petitioner are not the employees, and (3) that the provisions of Cine Workers and Cinema Theatres Workers (Regulation of Employment) Act, 1981 cannot be made applicable with retrospective effect.
(2.) ARGUMENTS of both the learned counsel have been heard. From a perusal of the various documents produced, it is evident that notice was issued to the petitioner and thereafter the order was passed and therefore, the allegation that the petitioner was not given opportunity cannot be entertained at this stage. The petitioner was given notice u/s 7-A on 9. 8. 88 and he has also appeared on 30. 11. 88. Regarding the submission that 3 sons cannot be considered to be employees in accordance with the definition of "employee" as given in Sec. 2 (f), he has relied upon Regional Director Employees Stale Insurance Corporation V/s Ramanuja Match Industry (1), wherein the partners of the firm were not considered to be employees by the Hon'ble Supreme Court. In the present case Annexure R/2 is a document, which shows that 3 sons were in the employment and were being paid wages and, therefore, they fall within the definition of "employee". Thus, this objection of the learned counsel for the petitioner is also rejected. So far as the grievance of the petitioner that the provisions of the Act of 1981 cannot be made applicable retrospectively, the said point is covered by the judgment of the Supreme Court in the case of District Exhibitors Association V/s Union of India (2) wherein the Hon'ble Supreme Court has held that the scheme cannot be applied retrospectively and the employer could not be asked to pay employees' contribution for the period antedment to the impugned notification, by which the scheme was made applicable to the employer. In view of the aforesaid judgment, the petitioner would not be liable for payment of contribution for the period from 1. 9. 1984 to 30. 4. 1986 in respect of the employees' contribution. The Provident Fund Commissioner shall determine the liability of the amount afresh. In the result, the writ petition is partly allowed. No order as to costs. .;