S.P.SINHA, J.

1. These two second appeals have been referred to Full Bench, but the point on which the reference is really made, arises only in Second Appeal No.402 of 1967. This matter has been referred to Full Bench for testing the correctness of two decisions of this Court; one by a Division Bench in the case of Prabhunath Prasad V/s. M/s. Tata Iron and Steel Co. Ltd. (Miscellaneous Appeal No.336 of 1965 decided on 3rd July, 1968) and the other by a learned single Judge in the case of Jainarain V/s. The Controller of Accounts, Tata Iron and Steel Co. Ltd. (Miscellaneous Appeal No.163 of 1967 decided on 15th Jan. 1969). In both these decisions, the protection under S.10 of the Employees Provident Funds Act, 1952 (Act 19 of 1952) (hereinafter referred to as the Act) has been extended to the fund created by the concerned establishment under its own scheme.

2. The questions as framed by the learned single Judge, who first referred the matter to a Division Bench, were :-

"1. Whether in the absence of any provision in the Act to that effect the protection granted by S.10 of the Act extends to a fund created under a scheme framed by an establishment exempted under S.17 of the Act from the operation of any scheme framed under the Act?

2. If so, whether in the absence of any specific provision the protection extends to such part of the fund established by such an exempted establishment as are monies representing things other than basic wages, dearness allowance and retaining allowance which alone under Sec.6 of the Act are said to be constituents of provident fund?.

These questions have been reframed by the Division Bench in the following words :-

"The question is as to what is the status in law of such a scheme or rules framed by a company in respect of the provident fund of an employee. Whether rules of the company will have the same status in law as a scheme framed by the Central Government under the Act?"

3. The Employees Provident Funds Act provides for the institution of provident funds for employees in factories and other establishments. The extent of its application is laid under S.1 of the Act. Sec.2 of the Act, inter alia, defines "fund" as the "provident funds establishment under a scheme". Member means "a member of the fund". "Scheme" means "a scheme framed under this Act". Sec.6 of the Act lays down how much out of what earnings of a member could be contributed towards the fund of the scheme under the Act. Sec.10 provides a protection against attachment of the amount standing to the credit of any member in the fund under any decree or order of any court in respect of any debt or liability incurred by the member. Sec.17 in so far as is relevant for the purpose of this case reads as under :-

"Power to exempt- (1) The appropriate Government may, by notification in the Official Gazette, and subject to such conditions as may be specified in the notification, exempt from the operation of all or any of the provisions of any scheme - (a) any establishment to which this Act applies if, in the opinion of the appropriate Government, the rules of its provident fund with respect to the rates of contribution are not less favourable than those specified in S.6 and the employees are also in enjoyment of other provident fund benefits which on the whole are not less favourable to the employees than the benefits provided under this Act or any scheme in relation to the employees in any other establishment of a similar character;

(b) any establishment if the employees of such establishment are in enjoyment of benefits in the nature of provident fund, pension or gratuity and the appropriate Government is of opinion that such benefits, separately or jointly, are on the whole not less favourable to such employees than the benefits provided under this Act or any scheme in relation to employees in any other establishment of a similar character."

By this section an establishment to which this Act applies is exempted from the operation of