Food Corporation of India vs The Presiding Officer and Others

Rajive Bhalla, J.—The appellant i.e. the Food Corporation of India lays challenge to order dated 28.08.2012, whereby its writ petition impugning order 28.04.2011 passed by the Employees'' Provident Fund Appellate Tribunal, was dismissed. Counsel for the appellant, submits that the agency retained by the Food Corporation of India, for supply of labour supplied ex-servicemen. The payment of provident fund is, therefore, exempted under notification dated 08.02.1995, issued by the Government of India, Ministry of Labour. It is further argued that both the learned Single Judge as well as the Tribunal have erred by not considering that as ex-servicemen alone were supplied to the Food Corporation of India, the notification granting exemption comes into affect. It is also pointed out that in the case of another agency, namely, M/s Prehari Security & Detective Services Pvt. Ltd. a similar contention was accepted and it was held that provident fund is not payable.

Counsel for the Provident Fund Commissioner submits that the notification comes into operation only if the agency supplying labours exclusively employs ex-servicemen. Where an agency employs both ex-servicemen and others, the notification does not come into operation.

We have heard counsel for the parties, perused the impugned order and find no reason to entertain the appeal. The appellant''s plea for exemption from deposit/payment of provident fund is based upon notification dated 08.02.1995. A relevant extract from the notification reads as under:

In exercise of power conferred by sub section (2) of Section 16 of the Employees'' Provident Fund and Miscellaneous Provisions Act, 1952 (19 of 1952), the Central Government, being of opinion that having regard to the circumstances of certain establishments which are employing only ex-servicemen who are in the receipt of pension benefits as admissible under the government rules it is necessary and expedient so to do, hereby exempts the said class of establishments from the operation of the said Act for a period of five years with effect from the date of publication of this notification in the official gazette of India.

A perusal of the notification reveals that exemption from payment of provident fund is available to an organization which employees ex-servicemen "only". The use of the expression "establishments which are employing only ex-servicemen" leaves no ambiguity that exemption under the notification, shall be granted to an organization which exclusively employs ex-servicemen. Thus, if an organization employees both ex-servicemen and non-ex-servicemen, exemption would not be available. The learned Tribunal has, therefore, rightly held that though the agency supplied ex-servicemen to the appellant but as there is no material on record that the agency concerned employs ex-servicemen alone, the appellant is obliged to pay provident fund. The finding so recorded has been affirmed by the learned Single Judge by holding that in absence of any material to prove that the agency was employing ex-servicemen alone, exemption cannot be granted. In our endeavour to examine whether any relevant evidence has been ignored, we have perused the entire paper-book i.e. orders as well as documents appended by the appellant but find no material that would even remotely raise a prima facie inference that the agency supplying labour to the appellant was employing ex-servicemen, alone. As regards the exemption granted to a similar agency suffice is to state that exemption was granted as the agency was employing ex-servicemen alone. In this view of the matter, the appeal is dismissed.