Orissa High Court
Orissa State Co-Operative Union Ltd vs Regional Provident Fund Commissioner on 24 August, 2012
Author: S.K.Mishra
Bench: S.K.Mishra
HIGH COURT OF ORISSA ; CUTTACK
W.P.(C) No.31875 of 2011
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Orissa State Co-operative Union Ltd. ... Petitioner
Versus
Regional Provident Fund Commissioner
and another ... Opposite Parties
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For Petitioner : M/s. Goutam K. Acharya
Dr. S.C.Hota, K.M.Patra,
P.K.Das, S.K.Behera, K.Ghadai,
K.Behera and J.K.Mahapatra.
For opposite parties : Mr.Sishir Sundar Mohanty
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PRESENT:
THE HONOURABLE MR. JUSTICE S.K.MISHRA
Date of hearing:10.7.2012 : Date of judgment: 24.8.2012
S.K.Mishra,J. In this writ petition the petitioner, being the Orissa State
Co-operative Union Ltd., has assailed the order dated 03.11.2011
passed by the Regional Provident Fund Commissioner-II(C & R),
Bhubaneswar, Odisha, opposite party no.1, under Section 7A of the
Employees' Provident Funds and Miscellaneous Provisions Act,
1952(hereinafter referred to as "the Act" for brevity) holding that
the petitioner-union is covered under the Act w.e.f. 6.3.1982.
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2. The petitioner-union is a non-profit making organization.
It is established in 1948 for the awareness of the Co-operative
Management in Orissa. In the year 1976, the petitioner-union
made a representation to opposite party no.1 to exempt the Union
from being covered under the Act. The main ground of exemption
is that the Union is having its own CPF Scheme. In the said
scheme deductions are made @ 8% of the basic pay and the
employees are also allowed the employer's contribution for equal
amount every month and the amount so collected from the
different employees along with Employer's contribution is being
deposited in the Orissa State Co-operative Bank in a fixed deposit
for ultimate benefits of its employees. The representation of the
petitioner remained pending before opposite party no.1, despite
several reminders. In the year 1997 without affording any
opportunity of hearing to the petitioner, opposite party no.1 issued
Code No.0R-5228 thereby bringing the Union under the purview of
the Act. This fact could be learnt by the petitioner in the year 2003.
Thereafter the petitioner made several representations against
inclusion of its establishment under the Act from 06.3.1982
though the code was issued in the year 1997. However, no action
has been taken on the repeated representation filed by the
petitioner-union.
3. Before filing of this writ petition, the petitioner had filed
W.P.(C )No.7185 of 2007, which was disposed of on 21.4.2008
giving direction to opposite party no.1 to consider the
representation made by the petitioner and dispose of the same as
expeditiously as possible preferably within a period of two
months from the date of receipt of certified copy of the order. In
pursuant to such an order, opposite party no.1 had passed order
on 03.11.2011. While disposing of the representation, opposite
party no.1 has observed as follows:-
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"In obedience to the direction of the Hon'ble High
Court, the above mentioned representations have
been carefully considered by the undersigned and
examined in light of the provisions of the EPC and
MP Act, 1952 and the undersigned comes to the
conclusion, that the establishment has rightly been
covered under the Act, since the establishment is
not directly under the Govt. or Statutory Authority.
Moreover, the Provident Fund rules of the
establishment do not prevent the Act from
implementation. Further the Provident Fund rules
of the establishment do not provide for pensionary
benefits and insurance benefits. So the provisions
of the EPF and MP Act are very much applicable to
the establishment and the CPF Rules of the
establishments have become null and void
consequent upon application of the Act to the
establishment. Further, the establishment has
never applied for exemption from EPF Scheme,
1952 and therefore, the provisions of Section 17 of
the Act are applicable to the establishment so far as
the EPF Scheme is concerned."
It was further held by opposite party no.1 that in
consideration of the establishment he came to the conclusion that
the provisions of the EPF Act are applicable to the establishment
with effect from 6.3.1982. The dues of the establishment be
determined U/s. 7A of the Act from such date. No reason has been
recorded as to why the establishment is covered from 6.3.1982 and
not from 1997 when the code number was issued.
4. Learned counsel for opposite party no.1 has tried to
supplement the findings recorded by opposite party no.1 and
stating that on 6.3.1982 all cooperatives having the object of
imparting education have been included in the Scheme of the Act
and, therefore, the petitioner-union is liable to pay the dues as
envisaged under Section 7A of the Act. However, the order of
opposite party no.1 does not reveal that such was the consideration
in the mind of the said opposite party while issuing the order
impugned, i.e. Annexure-1. No reasoning has been given therein.
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5. It is further seen that opposite party no.1 has held that the
Provident Fund Rules of the establishment do not prevent the Act
from implementation. It further held that the Provident Fund
Rules of the establishment do not provide for pensionary benefits
and insurance benefits. So the provisions of the Act are very much
applicable to the establishment and the CPF rules of the
establishment have become null and void consequent upon
application of the Act to the establishment.
6. Sub-section (1) of Section 16 of the Act provides that this Act
shall not apply to certain establishments. It reads as follows:
16 (1) This Act shall not apply -
(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.
xxxx xxxx xxxx
7. Thus, it is clear that the petitioner-union has a contributory
provident fund. Clause (b) of Sub-section (1) of Section 16 of the
Act provides that 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
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or rule framed by the Central Government or the State Government
governing such benefits are not included within the gamut of the
Act.
8. In this connection, it is appropriate to take note of the
decision of this Court in Cuttack Development Authority,
represented through its Vice-Chairman, Arunodaya Market,
Ctc. V. Regional Provident Fund Commissioner; 2010(I) CLR-
60. This Court has held that the C.D.A. having been
constituted/established under the O.D.A. Act and its employees
having been made entitled to the benefit of old age pension in
accordance with the resolution of the C.D.A., the said
establishment of the C.D.A. is clearly exempted from the
application of the provisions of the Act.
9. This Court is of the view that opposite party no.1 should
apply his mind again to the facts of the case and decide whether
the Union is exempted under Clause (b) of Sub-Section (1) of
Section 16 of the Act and to give cogent reasons for making it
liable for contribution under the Act from 6.3.1982.
10. Accordingly, the writ petition is allowed. The order dated
03.11.2011passed by opposite party no.1 is hereby quashed and the mater is remanded back to the said opposite party for hearing afresh in the light of the observations made in this judgment. The petitioner-union is directed to appear before opposite party no.1 by 14th of September, 2012.
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S.K.Mishra, J Orissa High Court, Cuttack Dated 24th August, 2012/A.K.Behera