The employer's liability to contribute to the provident fund is not reduced by the cancellation of exemption from the statutory provident fund scheme.

JUDGMENT :

1. A very short question arises in this petition as to the correct meaning of S. 12 of the Employees' Provident Funds and Family Pension Fund Act, 1952 (Act 19 of 1952) (hereinafter referred to as the "Provident Fund Act").

2. Very few facts which deserve to be noted and which do not seem to be in dispute are these : The Provident Fund Act became applicable some time in the year 1952. The petitioners had their factory at Santacruz and the head office at Tarabaug Estate, Charni Road, Bombay. The Provident Fund Act was obviously applicable to the factory and the head office of the petitioners. The petitioner-company, however, applied on June 24, 1964, to the Regional Provident Fund Commissioner for exemption from the statutory scheme of 1952 because they had their own voluntary Provident Fund Scheme, which was more beneficial to the employees at both the places. It was pointed out that the contribution of the employees was 12 1/2 per cent and that of the employers was 10 per cent of the total wages under the voluntary Provident Fund Scheme. As the rates at which contributions required to be made under the statutory scheme were only 8 per cent on either side, it was obvious that voluntary schemed was more beneficial to the employees. Exemption was thus granted by letter dated May 29, 1966, with effect from July 1, 1964.

3. A similar order recognizing the scheme was passed by the Income Tax Commissioner by his letter dated March 15, 1966. To that voluntary scheme the Regional Provident Fund Commissioner allotted a number as being No. MH/5651 and the payments were continued as per the voluntary scheme.

4. As it happened, the factory were of the petitioner-company at Santacruz was closed down from December 1, 1968. All the employees from the factory were thus retrenched from the service of the factory. Some employees in the head office, however, continued and in relation to them the same voluntary Provident Fund Scheme was continued and payments were being made by way of contribution of the employer as well as the employees under the same old Code No. MH/5651.

5. On November 11, 1971, the petitioner took over the factory of Pioneer Chromate Works, a division of Bharat Pulverizing Mills Ltd. This factory employed about 130 workers at the factory site at Andheri (East). So far as this unit of factory at Andheri was concerned, it automatically fell under the provisions of the Provident Fund Act and the statutory scheme became applicable as a matter of law. The petitioners did make their contribution as well as those of the employees under the statutory scheme of 1952 and wrote to the Regional Provident Fund Commissioner for allotting a new code number with respect to the new factory started at Andheri. This seems to have been done and Code No. MH/12407 has been allotted so far as the Andheri factory is concerned. There is no dispute that so far as the workers at the Andheri factory are concerned, the contribution of the company is 8 per cent and that of the employees is also 8 per cent and the statutory scheme is being implemented.

6. On or about November 9, 1971, the petitioner-company applied for cancellation of the exemption granted in respect of the employees working at the head office. This application was made under para 27 of the Employees' Provident Funds Scheme, 1952. By Ext. 2 to the affidavit in reply to the petition the respondents have produced letter dated January 12, 1972, granting the cancellation of the exemption. The letter further directs the petitioner to implement the statutory scheme, now that the exemption from that scheme stands cancelled. By another letter dated January 12, 1972, Ext. B to the petition, the Regional Provident Fund Commissioner called upon the petitioner to transfer all the funds under the voluntary provident fund scheme with the company to the appropriate account with the Regional Provident Fund Commissioner.

7. There is no dispute that the accumulated funds have been transferred and some c