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TMI Blog1964 (9) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... wenty or more persons. This information was furnished along with communication dated 18 June 1962. It was stated in the pro forma (copy annexure B. 1) that the number of all categories of employees employed as on 30 April 1962 was fifteen. On 18 May 1963 the Commissioner wrote to the petitioner saying that according to the enquiries made by the department the petitioner-concern was engaged in industry as specified in Sen. I of the Act, as amended, and it employed 20 persons as on 31 December 1960 and had also completed five years of establishment as provided under Section 16(b) of the Act. As such it was covered by the provisions of the Act and the scheme framed thereunder with effect from 1 January 1961. He further proceeded to say: Keeping, however, in view the fact that your factory establishment has been discovered for coverage under the Employees' Provident Funds Act, 1952, at a later stage, you are allowed, as a special case, to deposit only the employer's share of provident fund contributions and administration charges at 3 per cent on both employees' and employers' shares of contributions for the pre-discovery period, i.e., 1 January 1961 to 31 May 1963. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice and thus the direction given by the Commissioner is impossible of performance. In the return filed in that case, this position is controverted and it is stated that according to the enquiries made, as many as twenty-one employees left the service of the employer on different dates but they had qualified for membership to the fund, i.e., they had served the concern for more than 240 days before the date of coverage, namely, 1 January 1961. A list of these employees along with the dates from which they qualified and the dates till which they were entitled to recover the amount as also the present addresses as supplied by the petitioner has been attached as annexure Rule 3 to the return. 4. It would have been necessary to refer to all the relevant provisions of the Act and the scheme if the matter had been res Integra but in a previous Bench decision of this Court in Prem Narain Aggarwala v. Union of India (Letters Patent Appeal No. 2D of 1956) decided on 13 February 1957, it was held that the liability to contribute to the fund commenced from 1 November 1952. Under Chap. V of the scheme (Paras. 29 to 33), the employer and the eligible employees had to make contribution to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision cannot be taken to be an authority for the view that the Commissioner could not call upon the employers in the present cases to deposit contribution with regard to the period called the pre-discovery period. The Calcutta decision was followed by a learned single Judge of the Madras High Court in Subbaier (K.R.) v. Regional Provident Fund Commissioner. According to Jagadlsan, J., the gist of the provisions of the Act relating to payment of contribution towards provident fund by the employer is such as to make them operative only from the point of time when the authorities hold that a particular unit is within the ambit of the Act and make a consequential demand in terms of the Act and the scheme. A demand for a back-period is not merely illogical and oppressive but plainly inconsistent with the terms of the enactment which are manifestly prospective in their operation. The learned Judge in that case appears to have been influenced to a certain extent by the fact that the Commissioner had made a demand for contribution and for management expenses for a period of five years. Another learned single Judge, Srinivasan, J., of that Court in Sri Andal Co, v. Regional Provident Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the fund. Chapter IV of the scheme deals with membership of the fund. Paragraph 26 relates to classes of employees entitled and required to join the fund. Paragraph 26B says that if any question arises whether an employee is entitled or required to become or continue as a member or as regards the date from which he is so entitled or required to become a member, the decision thereon of the Regional Commissioner or, where a State Commissioner is appointed, of the State Commissioner shall be final. It is, however, provided that no decision shall be given unless both the employer and the employee have been heard. Chapter V deals with contributions. Paragraph 30 provides that the employers shall in the first instance pay both the contribution payable by himself and also on behalf of the member employed by him. According to Para. 32, the amount of a member's contribution paid by the employer shall, notwithstanding the provisions of the scheme, etc., be recoverable by means of deduction from the wages of the member. Chapter VI relates to declaration, contribution cards and returns. Paragraph 33 provides for a declaration by persons already employed at the time of the institution ..... X X X X Extracts X X X X X X X X Extracts X X X X
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