S.C.GUPTE,J. - (1.) Heard learned Counsel for the parties.
(2.) This writ petition filed by the Board of Trustees of the Employees Provident Fund Organisation seeks to challenge an appellate order passed by the Provident Fund Appellate Tribunal. By the impugned order, the Appellate Tribunal allowed the employer's appeal and set aside an order passed by the Assistant Provident Fund Commissioner, which held that the Respondent employer was covered under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 ("the Act').
(3.) The Respondent employer is a co-operative society registered under the Maharashtra Co-operative Societies Act, 1960 being a co-operative society of owners of commercial premises, employing at all material times less than thirty employees. These employees were all watchmen and sweepers employed for protection and maintenance of the premises. The employees carried on work without the aid of power. On these facts, the controversy in the present petition concerns whether or not the Respondent society is covered by the provisions of the Act. By an order dated 3 June 2008, the Assistant Provident Fund Commissioner came to the conclusion that the establishment was covered under the Act. The conclusion was on the basis of the following reasoning : (a) The society answers the description of the classes of establishment, which are notified under a notification issued under Section 1(3)(b) of the Act, namely, "All societies, clubs and associations which render service to their members, without charging any fee over and above the subscription fee or membership fee". (b) The establishment is not covered under the exclusionary clause contained in Section 16 of the Act, inasmuch as all three conditions of Section 16(1) (a) are not satisfied concurrently. The establishment is registered under the Maharashtra Co-operative Societies act, 1960, but works with the aid of power. (c) The decision of our court in the case of Backbay Premises Co-operative Society Ltd. v. Union of India, 1997 II CLR 1075 is distinguishable and not applicable to the case of the establishment.;