The petitioner is a Co-operative Stores governed by the Tamil Nadu Co-operative Societies Act. The provisions of Employees Provident Funds and Miscellaneous Provisions Act, 1952, were made applicable to the petitioner's co-operative Store by an order issued by the Government under Section 1(4) of the Act on 01.11.1991. The said order came to be issued by the Government on the petitioner's establishment agreeing to apply the provisions of the Act to the petitioner's establishment. Subsequently, the petitioner was paying the Employees Provident Funds contribution for some time. For the period between July 2001 to March 2002, the petitioner was ordered to pay a sum of Rs.5,061.85 towards Employees Provident Funds contribution as per the order of the respondent by his proceedings in file No. TN/T1/ 24641/ Enf.I (3)/2002 dated 06.09.2002. Challenging the same, the petitioner has come forward with this Writ Petition.
2. The main ground of the attack raised by the learned counsel for the petitioner is that under
Section 16 of the Employees Provident Funds Act, the petitioner co-operative Stores has been excluded from the purview of the Act. Therefore, according to him, the impugned order is wholly without jurisdiction.
3. But the learned counsel for the respondent would oppose the Writ Petition. He would submit that under Section 16 of the Act, any establishment registered under the Co-operative Societies Act, 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 would not fall within the purview of the Act. He would further submit that inspite of the said exemption under
Section 1(4) of the Act, the Society can, by agreement, request the Government to issue a notification to apply the provisions of the Act. In the case on hand, the petitioner co-operative society voluntarily agreed and requested the Government to issue a notification and accordingly, the Government issued notification in the Official Gazette and thus the Act has been made applicable to the petitioner co-operative society. Therefore, according to the learned counsel for the respondent, it cannot be stated that the Act is not applicable to the petitioner.
4. I have considered the rival submissions.
5. A reading of Section 16(1) of the Act would go to show that the Employees Provident Funds Act shall not apply 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. From this, it could be understood that the respondent cannot compel or on their own bring the petitioner co-operative society under the purview of the Act, thereby forcing the petitioner to pay Employees Provident Funds contribution, provided at the crucial time there were less than 50 persons working and that too without the aid of power. But, it does not mean that by agreement such a co-operative society cannot come within the purview of the Act.
Section 1(4) of the Act deals with such a situation, which is as follows:
" 1(4). Notwithstanding anything contained in sub-section (3) of this Section or sub-section (1) of
Section 16, where it appears to the Central Provident Fund Commissioner, whether on an application made to him in this behalf or otherwise, that the employer and the majority of employees in relation to any establishment have agreed that the provisions of this Act should be made applicable to the establishment, he may, by notification in the Official Gazette, apply the provisions of this Act to that establishment on and from the date of such agreement or from any subsequent date specified in such agreement."
6. A plain reading of the said provision would go to show that this provision is an exemption to
Section 16 of the Act. As I have already stated, though under
Section 16 of the Act, such a co-operative society governed by a State Act employing less than 50 persons and that too without the aid of power cannot be compelled to apply the provisions of the Act, voluntarily by agreement, the society can request the Government to notify in the official gazette so as to apply the provisions of this Act. It is in tune with this provision, indisputebly, on a request made by the petitioner, the Government has issued notification thereby applying the provisions of this Act to the petitioner establishment. Therefore, the argument of the learned counsel for the petitioner that the Act is not applicable to the petitioner is untenable.
7. Admittedly, subsequent to the said notification, the petitioner establishment was paying Employees Provident Funds contribution for some time. It was only for the period between July 2001 to March 2002, the petitioner has failed to pay the same, for which the impugned order came to be passed as per the provisions of the Act. Thus, I do not find any infirmity in the order. The learned counsel for the petitioner is not able to point out any other ground for quashing the impugned order.
8. In view of the above, the Writ Petition fails and the same is accordingly dismissed. No costs.
To The Assistant Provident Fund Commissioner, 10 A/3, St. Thomas Road, High Grounds, Tirunelveli 627 011