The Act does not apply to Cooperative Societies employing less than 50 persons without the aid of power, as per Section 16.

JUDGMENT :

Raja Basu Chowdhury, J.

1. The present writ petition has been filed, inter alia, challenging the communication dated 20th June, 2017 issued by the Assistant Provident Fund Commissioner (Compliance) whereby, the petitioner was informed that its establishment stood covered with effect from 1st April, 2009 under Section 1(3)(b) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the “said Act”) under the Schedule I, Head “Textiles”.

2. The petitioner is a Primary Handloom Cooperative Society. The petitioner was originally registered under the West Bengal Cooperative Societies Act, 1973, which had since, been repealed and had been substituted by the West Bengal Cooperative Societies Act, 1983. Subsequently, the West Bengal Cooperative Societies Act, 2006 had been notified thereby, repealing the West Bengal Cooperative Societies Act, 1983.

3. The petitioner claims that all its members are weavers by profession, and are all displaced persons and hail from Tangail, formerly in East Pakistan, presently in Bangladesh.

4. In usual course, the members of the petitioner receive wages from the Society on nominal basis, depending upon the quality and quantity of the sarees produced by them.

5. It is the petitioner’s contention that notwithstanding not being covered by the provisions of the said Act, a coverage survey was conducted by the provident fund authorities on 11th May, 2017. Pursuant to the aforesaid, by a communication in writing dated 1st June, 2017, the Assistant Provident Fund Commissioner (Compliance) had forwarded the petitioner the information regarding allotment of the Provident Fund Code Number and had by such letter called upon the petitioner to submit the compliance status, along with documentary evidence as detailed therein.

6. Upon receipt of such notice the petitioner, however, by communication in writing dated 2nd June 2017, had attempted to make out a case that the petitioner was complying with the State Government circular with regard to payment of provident fund. It was also clarified that the petitioner being a Co-operative Society was otherwise exempted from the provisions of the said Act, and by reasons of the petitioner employing only fourteen regular and eight temporary employees, the petitioner cannot be brought into the purview of the said Act.

7. Subsequently, by a communication in writing dated 20th June, 2017, the Assistant Provident Fund Commissioner (Compliance) had notified the petitioner that pursuant to the online application made by the petitioner, the establishment stood covered with effect from 1st April, 2009 under Section 1(3)(b) of the said Act under the Schedule Head “Textiles” and accordingly, had called upon the petitioner to comply with the provisions of the said Act and the scheme framed thereunder.

8. The petitioner challenges this communication primarily on the consideration that even if coverage of the said Act has been extended to the petitioner based on the petitioner’s application, the same could not date back to the year 2009 on the basis of inclusion of textiles in the Schedule I of the said Act.

9. Mr. Bhattacharya, learned advocate representing the petitioner, by drawing attention of this Court to Section 1(3)(b) read with Section 16 of the said Act, submits that the said Act can be made applicable to a Co-operative Society provided the society engages 50 or more persons. By drawing attention of this Court to the survey report conducted by the enforcement officer at the petitioner’s establishment on 11th May, 2017, it is submitted that the respondents themselves had identified that the petitioner engages no more than 22 employees. Unfortunately, the Assistant Provident Fund Commissioner (Compliance) by overlooking the relevant provisions of the said Act, has held that the petitioner’s establishment to be covered under Section 1(3)(b) of the said Act on the basis of “Textiles” being included in Schedule I of the said Act. According