JUDGMENT :

Paresh Upadhyay, J.

In this group of petitions, which are filed by both-employees and employers, the point which fall for consideration before this Court is, whether an employer can be compelled to pay in excess of his statutory liability towards contribution in the provident fund of an employee under the provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 ('the Act' for short).

2. Heard Mr. Girish Patel, learned senior advocate with Mr. Mawlankar learned advocate and, learned advocates Mr. P.J. Kanabar, Mr. A.J. Shastri, and Mr. Mehul Sharad Shah, on behalf of employees. On behalf of employers, Mr. K.M. Patel, learned senior advocate with Mr. Varun K. Patel, learned advocate, as well as Mr. A.S. Vakil, learned advocate, have made their submissions. On behalf of Regional Provident Fund Commissioner, submissions are made by Mr. N.K. Majmudar and Ms. Vasavdatta Bhatt, learned advocates.

3. Learned counsel for the employees have, in substance, stated that, from the beginning, the management of the Banks have provided for the benefit of Provident Fund to its officers and other employees. The management of the Banks and employees, by joint request in writing to the Assistant Provident Fund Commissioner, agreed for payment of provident fund even by those employees who were getting more than stipulated emoluments, per month, which at present is Rs. 6500/-. Suddenly, this benefit was unilaterally withdrawn by the management. The said benefit, had become a part of service condition, which was withdrawn without any notice to the employees. The employees affected, protested to the Management, but the Management did not accept the demand of the employees. It is this action on the part of the management of the Banks, which is the subject matter of the petitions which are filed by employees.

4. The case of the management of the Banks, in the petitions filed by them, in substance is to the effect that, the request of the management to discontinue the erroneous remittance of employer's contribution, in excess of its statutory liability has been rejected by the Regional Provident Commissioner and thereby the management of the Bank is required to continue to remit employer's contribution in excess of its statutory liability. It is contended that this is done by the Regional Provident Fund Commissioner, on the basis of erroneous reading of Section 12 of the Act and it is further contended by the management that Section 12 of the Act will not be attracted in this case. It is further contended that the conjoint reading of the provisions of the Act and Scheme framed there under, shows that even in the cases where the employee is desirous of and permitted to remit contribution in excess of statutory ceiling, which at present is Rs. 6500/-, the liability of the employer to pay employers' contribution is restricted to the said statutory ceiling. As against that, under erroneous and mistaken belief, the management of the Banks was remitting contribution equal to the contribution of employees far in excess of statutory ceiling, as if it was required to make contribution of employer equal to the contribution of employee, even if, it is beyond statutory ceiling. It is indicated that even in respect of exempted employees, this had continued. It is pointed out that the wages of the employees increased manifold, rate of contribution also increased, statutory ceiling which was Rs. 1600/- in 1982 also gradually increased upto Rs. 6500/-. This had the spiraling effect on Bank's liability, which compelled the Bank to request the authorities for discontinuance of the practise of remitting contribution beyond statutory requirement and bring it to the statutory limit, which was denied by the authorities which is challenged in the petitions filed by the management of the Banks. It is also claimed by the management of the Banks that the amount which they have contributed in excess of their legal obligation be permitted to be recov