Devi and Co. vs The Regional Provident Fund Commissioner and Another

T. Ramaprasada Rao, J.—Confronted with a demand under the Revenue Recovery Act for the payment of Rs. 3,733-50 said to be payable

by the petitioners under the Employees'' Provident Funds Act, 1962, the petitioners have come up to this Court for the issue of a writ of certiorari

to quash the said notice as also the notice dated 16th July, 1971 issued by the Regional Provident Fund Commissioner, Tamil Nadu and

Pondicherry States, who independently requested the Collector to recover the arrears urgently under the Revenue Recovery Act. The petitioners''

case is that they are stainless steel merchants with head office at Rayavaram in Tiruchirapalli District and with two branches, one at Karaikudi in

Ramanathapuram District and the other at Valayapatti in Tiruchirapalli District. According to the petitioners, at no time there were 20 or more

employees who were regularly appointed by the petitioners-firm for purposes of their trade. No doubt seasonal casual labour was inducted into the

business and by such additional employment given to such labour the number on the rolls has increased beyond 20. But according to the

petitioners, ever since the firm was started or at or about the relevant times, the number of persons employed by the petitioners never exceeded

On the issue of a rule nisi, records Were produced. The petitioners produced their attendance registers during the relevant years and the

department has produced the file. From the attendance registers kept by the petitioners in the regular course of their business, it is seen that for

April, 1967 the number of employees in all the establishments under their control was never more than 20. In juxtaposition to this the file produced

by the department discloses a statement made by a partner of the petitioners-firm before an Inspector of the department which shows that there

were about 22 employees in the establishments. This statement recorded by the Inspector was counter-signed by one of the partners of the firm.

With such conflicting materials before me, arguments were addressed by the learned Counsel for the petitioners that the statement recorded by the

Inspector was on a casual inspection and that too with reference to the ledgers maintained by the firm and he did not delve deep into the question-

whether all the 22 or more employees therein were regularly employed for purposes of trade. It is by now settled that the employment of a person

for any purpose whatsoever and for every short duration or for a period of one year is not employment contemplated by Section 1 (3) (a) and (b)

of the Employees'' Provident Funds Act, for the purpose of determining the number of persons employed in an establishment. The Supreme Court

in The Regional Provident Fund Commissioner, Andhra Pradesh Vs. Sri. T.S. Hariharan, . did not agree with the view of this Court in East India

Industries (Madras) Private Ltd. Vs. The Regional Provident Fund Commissioner, . and explained the word ""employment"" as meaning

employment in the regular course of business of an establishment"" and that such employment will not include employment of a few persons for a

short period on account of some passing necessity or some temporary emergency beyond the control of the establishment. It therefore follows that

mere numerical strength without a further probe into the labour force of an establishment to ascertain whether those employed therein, are annexed

to the trade and business, will not clinch the matter. The learned Counsel for the State would however stress upon the report of the Inspector

countersigned by a partner of the firm which disclosed that the number of persons in the establishments was more than 20, whilst the learned

Counsel for the petitioners would rely upon the attendance registers which are countersigned by the Labour Inspectors under a different enactment

to substantiate their case that at no time the number exceeded 20. There is therefore a controversy in the matter of the number persons employed

in the course of business in the petitioners'' trade and such questions cannot be gone into in a summary fashion in this Court which exercises

jurisdiction under Article 226 of the Constitution.

I may incidentally state that at one time there was a proviso to Section 1 (5) of the Employees'' Provident Funds Act, which enabled firms or

employers to get themselves relieved from the clutches of the Act though they were initially liable under it if and when they satisfied the appropriate

authority, as provided in the proviso therein that for a continuous period of one year the number of persons employed by them was less than 15.

But this proviso has been omitted by Act XVI of 1971. The question, therefore, is as to how a person who is placed in a situation like the one

which the proviso to Section 1 (5) contemplated could get redress as in the present circumstances. Such persons are not without a relief. Section

19-A though general in sense yet provides for the above situation by giving; a right to the aggrieved person to approach the Central Government to

decide what the number of persons employed in an establishment at a particular period Was less than 20 and therefore the said establishment was

beyond the purview of the Act. Section 19-A provides that if any difficulty arises in giving effect to the provisions of this Act and in particular, if

any doubt arises as to the number of persons employed in an-establishment (Section 19-A (iii)) then the Central Government may, by order, make

such provision or give such direction not inconsistent with the provisions of this Act, as appear to it to be necessary or expedient for the removal of

the doubt or difficulty. This section, therefore, envisages that an aggrieved person should approach the Central Government for a due enquiry as to

whether a particular establishment is employing more than 20 persons so that it could be deemed to be one coming within the framework of the

Act. The petitioners have not availed themselves of this alternative statutory remedy, but have come up to this Court on the issue of a demand

under the Revenue Recovery Act, to quash that demand, on the basis that the demand itself has been raised without a legal foundation. Whether

there was any basis for the raising of the demand has to be decided on a full enquiry between the parties in an action taken by the Central

Government u/s 19-A of the Employees'' Provident Funds Act. In this view, therefore, I am not inclined to quash the demand as at present.

Instead, the petitioners are given the liberty to take appropriate action u/s 19-A of the Employees'' Provident Funds Act and obtain a decision

from the Central Government as to the number of persons employed by them in their establishments. If the decision is in their favour, then the

demand automatically becomes unenforceable. But if the decision is against them, then the demand will revive and the petitioners would become

liable. Even then it is made clear, in view of the petitioners'' objection that they were not given any opportunity to have the quantum of demand

corrected, it is expected that the Department will give them a fresh opportunity, even if the Central Government, were to decide against the

petitioners for fixing the quantum of liability and thereafter take action under the Revenue Recovery Act. Till then the proceedings under the

Revenue Recovery Act are not to be enforced.

The writ petition is partly allowed and there will be no order as to costs.