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The petitioners have primarily challenged the notification, dated January 8, 2011, issued by the Ministry of Labour and Employment applying the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (the Act, for short) to the municipal councils and municipal corporations constituted under Article 243Q (1)(b) and (c) of the Constitution of India and employing 20 or more persons. This notification was issued in exercise of the powers conferred by Section 1(3)(b) of the Act.

For Mr. Banerjee the opening words of Section 1(3) of the Act makes it clear that establishments already covered by Section 16 of the Act cannot be brought within its fold and ambit. The Act may be made applicable in exercise of powers under Section 1(3) of the Act or any establishment employing 20 or more persons or class of such establishments.

Mr. Banerjee further referred to Article 243Q of the Constitution of India which provides for constitution of municipalities. Article 243Q(1)(C) provides for a municipal corporation for a larger urban area in accordance with the provisions of Part-IX A of the Constitution of India. Article 243Q under Part IX A defines a municipality as an institution of self government constituted under Article 243Q of the Constitution of India. The Corporation was constituted long before by the Act which was then in force. The notification in question speaks of municipal council or municipal corporations constituted under Article 243Q of the Constitution of India. The Kolkata Municipal Corporation was never constituted under Article 243Q (1)(b) or (c) of the Constitution of India and was established long before the insertion of part-IX A in the Constitution of India.

Article 243Q is in part IX A of the Constitution of India. Under Article 243 P, a municipality means an institution of self government constituted under Article 243Q. Article 243Q deals with constitution of a municipality. It, inter alia, says that a) there shall be constituted in every State a Nagar Panchayat for transitional area, b) a Municipal Council for a smaller urban area and c) a Municipal Corporation for a larger urban area in accordance with the provision of Part IX A of the Constitution of India.

Therefore, if, as per the concerned notification the Act is to apply to the municipal councils and municipal corporations constituted under Article 243Q of the Constitution of India, it cannot, for reasons far too obvious, apply to a municipal corporation which was not constituted under the said provision of law. In other words, the present notification seeking to apply the provision of the Act to the municipal councils and municipal corporations constituted under Article 243Q of the Constitution of India, as mentioned in the notification, has no manner of application to the present Corporation. Thus, it cannot be said that by the impugned notification the Act has been made applicable to the Corporation.