Punjab-Haryana High Court
B.P.S.M. Girls College vs The Regional Provident Fund ... on 5 March, 2009
Author: Surya Kant
Bench: Surya Kant
CWP NO. 13075 OF 1993 :1:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP NO. 13075 OF 1993
DECIDED ON : 05.03.2009
B.P.S.M. Girls College
...Petitioner
versus
The Regional Provident Fund Commissioner
and others
...Respondents
CWP NO. 10966 OF 1994
Vidyawati Mukand Lal Bal Niketan
...Petitioner
versus
Regional Provident Fund Commissioner
and another
...Respondents
CWP No. 9247 of 1994
Mukand Lal National College
...Petitioner
versus
Regional Provident Fund Commissioner
and another
...Respondents
CWP NO. 10502 OF 1994
Mahila Polytechnic Kanya Gurukul
...Petitioner
versus
The Regional Provident Fund Commissioner
and others
...Respondents
CWP NO. 13075 OF 1993 :2:
CWP NO. 10572 OF 1993
Bawa Sarwan Nath High School
...Petitioner
versus
The Regional Provident Fund Commissioner
and others
...Respondents
CWP NO. 8536 OF 1994
G.M.N. College Trust & Management Society
...Petitioner
versus
The Regional Provident Fund Commissioner
and another
...Respondents
CWP NO. 1563 OF 1993
K. M College of Education
...Petitioner
versus
The Regional Provident Fund Commissioner
and others
...Respondents
CWP NO. 13076 OF 1993
B.P.S. College of Education
...Petitioner
versus
The Regional Provident Fund Commissioner
and others
...Respondents
CWP NO. 15116 OF 1993
Arya Kanya Maha Vidyalya
...Petitioner
versus
CWP NO. 13075 OF 1993 :3:
The Regional Provident Fund Commissioner
and others
...Respondents
CWP NO. 10349 OF 1992
C.R. College of Education
...Petitioner
versus
The Regional Provident Fund Commissioner
and others
...Respondents
CWP NO. 3245 OF 1992
C.R. College of Education
...Petitioner
versus
The Regional Provident Fund Commissioner
and others
...Respondents
CWP NO. 11747 OF 1994
M.M. College
...Petitioner
versus
The Regional Provident Fund Commissioner
and others
...Respondents
CWP NO. 10729 OF 1994
Jai Ram Dass Aggarwal Girls School
...Petitioner
versus
The Regional Provident Fund Commissioner
and another
...Respondents
CWP NO. 13075 OF 1993 :4:
CWP NO. 18248 OF 1994
Smt. Laxmi Vidhya Mandir High School
and another
...Petitioners
versus
The Regional Provident Fund Commissioner
and another
...Respondents
CWP NO. 3360 OF 1995
Khalsa High School
...Petitioner
versus
The Regional Provident Fund Commissioner
and others
...Respondents
CWP NO. 10307 OF 1994
Indira Gandhi Mahila Mahavidyalya
...Petitioner
versus
The Regional Provident Fund Commissioner
and another
...Respondents
CWP NO. 12381 OF 1994
Hindu Sr. Sec. School
...Petitioner
versus
The Regional Provident Fund Commissioner
and another
...Respondents
CORAM : HON'BLE MR. JUSTICE SURYA KANT
CWP NO. 13075 OF 1993 :5:
1. Whether Reporters of local papers may be allowed to see
the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
SURYA KANT, J. (ORAL)
This order shall dispose of C.W.P Nos. 9247 of 1994, 10966 of 1994, 10502 of 1994, 8536 of 1994, 10572 of 1973, 1563 of 1993, 13076 of 1993, 15116 of 1993, 10349 of 1992, 3245 of 1993, 11743 of 1994, 10729 of 1994, 18248 of 1994, 3360 of 1995, 10307 of 1994 and 12381 of 1994, as common questions of law and facts are involved in these cases. For brevity, the facts are being taken from C.W.P No. 13075 of 1993.
The petitioner is a recognized government aided college. It seeks quashing of the notices dated 04.03.1992 and 30.07.1993 (Annexures P-3 and P-4) issued under Section 7-A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (in short "the 1952 Act"), calling upon its explanation for non-deposit of the provident fund dues. Firstly, the Management of the petitioner-college was directed to appear before the Prescribed Authority and show cause the non-compliance of the provisions of the 1952 Act. The petitioner gave its reply dated 03.08.1989 (Annexure P-2), inter-alia, explaining that the College receives 95% grant-in-aid from the State Government and its employees are governed by the Provident Fund Scheme of the State Government in terms whereof necessary 10% CWP NO. 13075 OF 1993 :6: deductions are made from the employees' salary with equal contribution by the Management. The petitioner's explanation, however, did not find favour with the Authority, who slapped the petitioner with the impugned notices Annexures P-3 and P-4. Aggrieved, the petitioner has approached this Court.
It may be noticed here that in some of the connected cases, the Authorities under the 1952 Act have, after considering the explanation, passed the assessment orders under Section 7-A of the Act.
The petitioner's grievance is that the Educational Institutes, including the Universities/Colleges/Schools were first time brought within the ambit of the 1952 Act by Government of India's notification dated 19.02.1982 (published on 06.03.1982). Soon thereafter the Government of India issued another notification dated 21.08.1984 in exercise of its power under Section 16 (2) of the 1952 Act, exempting the education institutions from the operation of the 1952 Act, initially for a period of three years which was later on extended from time to time. Relying upon the said notification, the petitioner questions the demand raised by the respondents vide the impugned notices Annexures P-3 and P-4.
Sub Section (3) of Section 1 of the 1952 Act enables the Central Government to make the Act applicable to any establishment employing 20 or more persons or class of such establishments, by issuing a notification in the official gazette. CWP NO. 13075 OF 1993 :7: There can indeed be no dispute that the notification dated 19.02.1982 (published in the official gazette on 06.03.1982) was meant to bring Universities/ Colleges/ Schools/ Scientific Institutions etc. within the ambit of the 1952 Act.
Section 16 of the 1952 Act enables exemption to certain establishments from applicability of the Act and Sub Section (2) thereof empowers the Central Government to grant such exemption to an establishment for a specified period. It was in exercise of its powers under Section 16 (2) of the 1952 Act that the Government of India issued the notification dated 21.08.1984, the relevant part of which reads as follows :
"1. All establishments (including Universities) which have been set up under either an Act of Parliament or to State Legislatures and whose employees are in receipt of Contributory Provident Fund, Family Pension and Deposit Linked Insurance or non contributory provident Fund, Pension and Deposit Linked Insurances in accordance with the rules or regulations framed under the respective acts;
2. All educational institutions, whose employees are in receipt of Contributory Provident Fund Family Pension and Deposit Linked Insurance for non- contributory provident fund. Pension and Deposit Linked Insurance at per with State, Central Government Employees.CWP NO. 13075 OF 1993 :8:
3. All establishments, which are registered as Society under the Societies Registration Act, 1860 and whose employees are in respect of contributory provident fund, family pension and deposit linked insurance or non-contributory provident fund, pension and deposit linked insurance per with State/Central Government employees."
The exemption granted vide above reproduced notification was extended from time to time, including on 19.03.1993 for a period of three years which means that the exemption continued to operate till 19.03.1996.
The petitioner's claim rests up on the notification dated 21.08.1984 as according to it all the educational institutions whose employees are in receipt of contributory provident fund have been exempted from operation of the 1952 Act and therefore, the very initiation of proceedings against the petitioner under Section 7-A of the 1952 Act is without jurisdiction and cannot sustain.
Per contra, leaned counsel for the respondents maintains that there is no unconditional exemption granted to the educational institutions, rather the same is preceded by specific conditions incorporated in the above reproduced notification itself. He argued that the petitioners are under obligation to establish that-
CWP NO. 13075 OF 1993 :9:
(i) Their employees are in receipt of contributory provident fund, family pension or deposit linked insurance for non-contributory provident fund;
(ii) Pension;
(iii) deposit linked insurance is at par with the Central Government employees.
It is also argued that in case of societies registered under the Societies Registration Act, 1860, the pre-condition provided in Clause 3 of the above reproduced notification, is also required to be proved and then only exemption can be claimed.
After hearing learned counsel for the parties at some length and on perusal of the records including impugned notification, I am of the considered view that its imperative upon the respondents to consider each petitioner's claim for exemption in terms of notification dated 21.08.1984. Similarly, the petitioners are also under obligation to produce the material/ evidence to prove that they fulfill the pre-requisite conditions laid down in Clause 2 and 3 of the above-stated notification. In other words, an adjudicatory process is required to be undertaken by the statutorily Prescribed Authority who alone shall, on consideration of the material on record, be in a position to determine as to whether or not a particular educational institute or a society is entitled to the exemption granted vide notification dated 21.08.1984 as extended from time to time till 19.03.1996. CWP NO. 13075 OF 1993 :10:
Consequently, these writ petitions are disposed of with the following directions :
1(i) The petitioners shall within a period of two months from the date of receipt of certified copy of this order, submit reply-cum-objections to the Assessing Authority under the 1952 Act, along with the documents/material in support of their claim for exemption under the notification dated 21.08.1984. On receipt of their reply-cum-objections, the Assessing Authority is directed to specifically consider the claim for exemption in terms of paras 2 and 3 of the aforesaid notification and determine as to whether or not these educational institutions are entitled to such exemption;
(ii) In those cases where the assessment orders under Section 7-A of the 1952 Act have been passed, the petitioners, shall be entitled to file a statutory appeal under Section 7-I of the 1952 Act within two months from the date of receipt of certified copy of this order along with the material/documents in support of their claim for exemption in terms of notification dated 21.08.1984 and the Appellate Authority shall be obligated to consider and dispose of CWP NO. 13075 OF 1993 :11: their claim regarding exemption in the same manner as the Assessing Authority is required to do as per direction (i) above;
(iii) Till the petitioners' claim is decided by the Assessing Authority or the Appellate Authority, as the case may be, no recovery shall be effected from them till then. In case the Authorities hold that the petitioners are entitled to the exemption granted vide notification dated 21.08.1984 as extended from time to time, the impugned notices shall be rendered infructuous. However, if the Assessing Authority or the Appellate Authority declines the exemption, the petitioners shall be granted three months period to deposit the arrears under the 1952 Act which, shall, however, not preclude them to impugn those orders before the Appellate Forum or otherwise if permissible in law. Wherever the petitioners have taken a plea that they have already deposited the contributory provident fund including the employees' share with the State Government, it would be desirable for the Assessing Authority or the Appellate Authority to issue a notice to the State Government and adjust such payments so that the petitioners are not burdened with additional liability.CWP NO. 13075 OF 1993 :12:
In C.W.P No.1563 of 1993, the petitioner is stated to have been refunded the arrears of provident fund earlier deposited by it along with interest. The writ petition, in a way, has been rendered infructuous. However, in case the Assessing Authority is of the view that the claim of the said institution is also required to be adjudicated, it shall be at liberty to initiate fresh proceedings to be adjudicated in the manner directed above.
As regards, CWP Nos. 9247 of 1994 (Mukand Lal National College vs. Regional Provident Fund Commissioner and another) and CWP No. 10966 of 1994 (Vidyawati Mukand Lal Bal Niketan Model Town vs. Regional Provident Fund Commissioner and another), learned counsel for the petitioners submit that the arrears of provident fund as assessed under Section 47-A of the 1952 Act, have already been deposited by them along with interest, even when there is an interim stay in their favour against the said deposit. He submits that as soon as the petitioners deposited the said amount, the Authorities have slapped them with notices under Section 14-B of the 1952 Act for recovery of damages. As the petitioners themselves have volunteered to deposit the entire arrears of Provident Fund even when they were not required to deposit the same in view of the interim stay granted by this Court, no delay can be attributed to them, warranting initiation of the proceedings under Section 14-B of the 1952 Act. The show CWP NO. 13075 OF 1993 :13: cause notices demanding damages are accordingly quashed.
No costs.
MARCH 05, 2009 (SURYA KANT) shalini JUDGE