VIKRAMADITYA PRASAD, J. - (1.) THE most basic question in this writ petition is whether the provision of Section 16 the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act) exempts the petitioner company from the application of the provisions of this Act. The second question is whether the assessments could have been made under the Act by the respondent No. 2, the Assistant Provident Fund Commissioner, Ranchi, for the period 1.7.1989 to 31.1.1991 and the third question is whether the employment of more than 20 persons on some period of a month could have brought the petitioner establishment under the mischief of the Act.
(2.) THE petitioner is private limited company and the petitioner No. 2 is its Managing Director. The petitioner company is an industrial unit manufacturing Malleable casting. It started its trial production in the industry on 11.6.1986 and the regular production started in the last week of November, 1986. In the month of June, 1989, for a couple of days, 21 persons were employed including four persons who were engaged purely on temporary basis in casual manner for a specified job of maintenance/repairing of machines. Out of those four persons, one person was engaged only one day and the details of all that were recorded in the Attendance Register and the Register had been deposited in the office of the Assistant Provident Fund Commissioner, respondent No. 2, who had not returned the same till the date of filing of the writ application. The Assistant Provident Fund Commissioner (hereinafter referred to as the Commissioner) investigated the matter relating to applicability of the provisions of the Act on or about 4.12.1990 and 11.12.1992 wherein the petitioner produced all the relevant documents including the Attendance Register. The Commissioner found that the persons employed by the petitioner -company were always less than 20, except in the month of June, 1989 for a couple of days and the said officer found month -wise employment as follows : - - __________________________________________________________________ Year Jan. Feb. March April May June July Aug. Sep. Oct. Nov. Dec. __________________________________________________________________ 1989 - - - - - - - - - - 21 14 15 16 14 13 15 1990 16 19 19 17 17 17 17 15 15 15 19 - - __________________________________________________________________ Thus, according to the petitioner, the Act does not apply to it for two reasons (1) only because of the engagement of a few casual labourers on some days of particular month does not make the company an establishment to which the Act is applicable and (ii) the petitioner company is exempted from the application of the Act for five years under Section 16 of the Act, but the Commissioner assessed Rs. 62.103/ - against the company by Annexure -1 and that annexure -1 is the impugned order which is sought to be quashed. As no counter -affidavit has been filed by the respondents, the undisputed claim of the petitioner is that the trial production was taken by the petitioner on 11.6.1986 and the commercial production started with effect from November, 1986, meaning thereby that the petitioner company was established sometime in June, 1986. Even in Annexure -1, the order of the Commissioner, no light has been thrown as to on which date the petitioner factory had been set up. Therefore, the things have to be decided on the premises that the factory in question was set up or has been set up prior to June, 1986.
(3.) IN June, 1986, Section 16 of the Act as amended in the year, 1960 was in force, which reads as follows : - - 16(1) This Act shall not apply - (a) to any establishment registered under the Co - operative Societies Act, 1912, or under any other law for the time being in force in any State relating to co -operative societies, employing less than 50 persons and working without the aid of power; or (b) to any other establishment employing 50 or more persons or 20 or more, but less than 50, persons until the expiry of three years in the case of the former and five years in the case of the latter, from the date on which the establishment is, or has been set up. Explanation. - -For the removal of doubts, it is hereby declared that an establishment shall not be deemed to be newly set up merely by reason of a change in its location." This section was further amended in the year, 1988 and Clause (b) of Sub - section (1) of Section 16 was substituted by Clauses (b), (c) and (d) and the said amendment to Section 16 is as under : - - "(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 establishments 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; or (d) to any other establishment newly set up, until the expiry of the period of three years from the date on which such establishment is, or has been, set up; (ii) in Sub -section (2), after the word exempt, the words, "whether prospec -tively or retrospectively", shall be inserted".;