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In: WPA 2812(W) of 2010

23) The writ application has been preferred praying for declaration that para 27AA of the EPF Scheme, 1952 is not applicable to the exempted establishment of the petitioner, declaration that para 27AA of the EPF Scheme, 1952 is ultra vires Section 17(1A)(d) of the EPF & MP Act, 1952, and praying for direction upon the respondents to recall the order dated 08.02.2008 passed under Section 7A of the said Act and the order dated 07.01.2010 passed under Section 7B of the said Act and also notice dated 03.02.2010.

c) Para 27AA of the EPF scheme has been brought in by way of an amendment (with effect from 06.01.2021) to the scheme and made applicable to the exemption granted under Section 17 of the EPF Act.

d) One option would be to cancel or surrender or withdraw the exemption which has been granted to the establishments under Section 17 of the Act, by the appropriate government, if the terms and conditions of Para 27AA of the scheme are more favourable, than the conditions specified in the notification granting exemption under 17 of the Act.

f) Thus Section 17 EPF Act gives strength to the argument of the petitioners that when such exempted establishments have been exempted from the provision of the scheme, an amendment to the said scheme (Para 27AA) would also not apply to such establishment. But the mischief here has been caused by the wording in Para 27AA of the scheme. The said mischief can be undone only by acting as per Section 17 of the EPF Act, which granted the initial exemption.

36) Accordingly, the writ application (20) herein are all disposed of on holding that:-

a) Para 27AA of the employees provident fund scheme, with appendix „A‟ is not ultra vires of the employees provident fund and miscellaneous provisions act, 1952.
b) Para 27AA of the employees provident fund scheme, 1952 with appendix 'A' is not applicable to the establishments exempted under Section 17 of the EPF Act, unless and until, the conditions of exemption is modified by way of an amendment in a notification published in official gazette making the provision of Para 27AA of the EPF scheme applicable to such exempted establishment.