CWP 1834/2009 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH SB Civil Writ Petition No.1834/2009 M/s Super Ex-Servicemen Welfare Cooperative Society Ltd. Versus. Union of India and others. DATE OF ORDER : 22/03/2010 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. OP Sheoran, for petitioner. Mr. JP Asiwal, for respondents. The matter has come up on an application filed by the petitioner but with the consent of counsel for the parties, the matter is finally disposed of at this stage. Instant writ petition has been filed by the petitioner Ex-Servicemen Welfare Cooperative Society assailing the order of Assistant Provident Fund Commissioner dt. 20/01/2009 exercising powers under Section 7-A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (“Act, 1952”). It appears from record that such Ex- Servicemen Welfare Societies were earlier exempted by the Government of India in exercise of its powers under Section 16(2) of the Act, 1952 but vide gazette notification dt. 17/08/2004, the Government of India withdrew its earlier notification granting exemption, as a consequence whereof, the provisions of the Act, 1952 became applicable upon such Ex-Servicemen Welfare Cooperative Societies. The gazette CWP 1834/2009 [2] notification dt. 17/08/2004 of the Ministry of Labour and Employment, which is relevant for the purpose, is reproduced here as under:- “In exercise of the powers 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 the opinion and having reviewed the circumstances and conditions for grant of exemption to the establishments which exclusively employ only ex-servicemen who are in receipt of military pension hereby withdraws notificaiton NO. S.O.872(F.No.S- 35014/4/99-SS-II) dated 5th April, 2000 with immediate effect from the date of publication of this notification in the Official Gazette of India” However, the State Government, after the Act, 1952 became applicable, issued circular on 10/03/2005 and all the departments were informed that 50% of the share will be contributed by the employee and 50% will be borne by the department where such employees are engaged through the Ex- Servicemen Welfare Cooperative Societies. It is not in question that after issuance of the circular by the State Government on 10/03/2005, they started deductions in regard to the Provident Fund from the employee's share and the same has been deposited with the contribution made by the respective department to the CWP 1834/2009 [3] provident fund department. However, a notice was issued by the department in regard to contribution of the period commencing from August, 2004 to June, 2005. The petitioner, in reference to the notice, submitted its reply that since no contribution was made/deducted from the salary of the respective employees and simultaneously there was no contribution made by the department as well, as such, they are not under obligation to deposit the contribution towards the provident fund under the Scheme of 1952 for the relevant period referred to supra. The authority, after affording opportunity and taking note of the Government of India notification dated 17/08/2004, finally held that the petitioner, being the principal employer, was under obligation to make deductions/contribution towards Provident fund for the period from August, 2004 to June, 2005 and accordingly a sum of Rs. 10,92,416/- was determined against which the instant writ petition has been preferred. Counsel for petitioner submits that when no deduction was made from the salary of the employee concerned and no contribution has been made by the department where the employees were engaged in absence whereof they are not under obligation to make the payment towards Provident Fund and being an exempted establishment, the gazette notification might have been published CWP 1834/2009 [4] withdrawing the exemption earlier granted on 17/08/2004, it was not in their notice and indisputably when neither the deduction has been made form the salary of the employees concerned nor any contribution has been made by the employer, the demand, which has been now raised by the respondents in exercise of the powers under Section 7-A of the Act, 1952, is wholly arbitrary and the order impugned dated 20/01/2009 deserves to be set aside. The respondents have filed reply to the writ petition wherein a preliminary objection has been raised to the effect that the order passed by the authority under Section 7-A of the Act, 1952 dt. 20/01/2009 is an appealable order before the Tribunal under Section 7-I, which certainly provides a statutory remedy of appeal which has not been availed by the petitioner. On merits, counsel for respondents submits that once the exemption notification of the Government of India was revoked upon such establishments by notification dt. 17/08/2004 duly published in the Gazette, it was a public notice to all and the petitioner was under obligation to make deductions from the salary of its employees and such contribution was to be deposited with the Provident Fund Department and if the petitioner has failed to comply with the statutory requirement of the Act, 1952 for the CWP 1834/2009 [5] period commencing from August, 2004 to June, 2005, the authority after due compliance of the provisions of the Act, 1952, in exercise of powers under Section 7-A, passed order on 20/01/2009 which is in conformity with the Scheme of the Act does not require interference. I have heard counsel for the partied and with their assistance have gone through the material on record. Leaving apart, the submissions made by the counsel on merits while assailing the order impugned dt. 20/01/2009, it is not disputed that the petitioner has a right of appeal under Section 7(i) of the Act, 1952 before the Tribunal and this could have been entertained only after pre-deposit of 75% of the amount due as determined by the authority under Section 7-A, however, the Tribunal for the reasons, to be recorded in writing, can waive the amount to be deposited under Section 7(o) of the Act, 1952. In view of the statutory remedy of appeal being available to the petitioner, it will not be appropriate for this Court to examine the dispute on merits which has been raised by the respective parties since any observation made may prejudice the rights of the parties but at the same time, if appeal is preferred within thirty days from today, alongwith an application for waiver of the amount to be deposited under CWP 1834/2009 [6] Section 7(o), the Tribunal may consider for waiver of the amount for maintainability and be examined on merits of the appeal. Counsel for petitioner further submits that the bank account of the petitioner society has been seized which has made them completely unworkable and there is no other finance available with the petitioner society which is a welfare society formed only of Ex-Servicemen. The respondents are directed to release the bank account of the petitioner within seven days of the receipt of certified copy of this order. With the above observations/directions, the writ petition stands disposed of. [AJAY RASTOGI], J. Raghu/p.6/ 1834CW2009final.doc