The court emphasized the statutory exclusions under Section 16(1) of the Act, the lack of authority of the Regional Provident Fund Commissioner and the State Government to grant exclusion, and the necessity of obtaining exemption under Section 17(1C) of the Act.

1. The petitioners in this bunch of writ petitions are employees of the State Co-operative Bank and the District Co-operative Banks. They challenge the orders of exclusion purportedly passed under the Employees’ Provident funds and Miscellaneous Provisions Act, 1952 (the ‘Act’ for short). I shall refer to the parties and the exhibits in WP(C) No.15150/2011 for the sake of convenience. Two of the writ petitions have been filed seeking to enforce the exclusion orders impugned in the other writ petitions.

2. The petitioners enrolled themselves under the Employees’ Pension Scheme, 1995 framed under Section 6A of the Act while in service. The petitioners retired from service during the years 2000-2005 and have since been drawing pension under the scheme aforesaid. The disbursement was abruptly halted by an order of exclusion passed by the Employees’ Provident Fund Organisation. Ext.P3 is the order of exclusion passed by the Regional Provident Fund Commissioner I, Kerala, it inter alia reads as follows:

“The applications filed by the State Co-operative Bank and 14 District Co-operative Banks seeking exemption from the Employees Pension Scheme 1995 under Section 17 (1C) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 read with para 9 of Employees’ Pension Scheme 1995, have been examined by this Office. The Self Financing Pension Scheme introduced by the Government of Kerala for the benefit of the employees of these institutions is having certain provisions which are incompatible with the provisions of the Employees Provident Fund and Miscellaneous Provisions Act 1952 and the schemes framed thereunder. In view of such incompatibilities the question of granting exemption under Section 17(1C) of the Act is found not feasible and hence the possibility of granting exclusion under 16(1)(b) of the Act has been examined by the undersigned as instructed by the Ministry of Labour, Government of India and our Head Office.

….In view of the Legal provisions explained above and of the fact that the State sponsored Self Financing Pension Scheme is applicable to employees of the Cooperative Institutions listed below, these institutions are hereby excluded from the purview of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 under Section 16(1)(b) with effect from 01.04.2005, the date from which the Self Financing Pension Scheme has been made applicable to the employees of these institutions”.

3. Section 16(1) of the Act which has been called in aid by the Employees Provident Fund Organisation is extracted below.

“This Act shall not apply—

(a) to any establishment registered under the Co-operative Societies Act, 1912 (2 of 1912), or under any other law for the time being in force in any State relating to Cooperative Societies, employing less than fifty persons and working without the aid of power; or

(b) to any other establishment belonging to or under the control of the Central Government or a State Government and whose employees are entitled to the benefit of contributory provident fund or old age pension in accordance with any scheme or rule framed by the Central Government or the State Government governing such benefits; or

(c) to any other establishment set up under any Central, Provincial or State Act and whose employees entitled to the benefits of contributory provident fund or old age pension in accordance with any scheme or rule framed under that Act governing such benefits.”

4. It could thus be seen that there is a statutory exclusion under sub clauses (a), (b) and (c) of Section 16(1) of the Act of the establishments mentioned therein. Section 16(1)(a) clarifies that the Act does not apply to any establishment registered under the Cooperative Societies Act employing less than fifty persons and working without the aid of power. The State Co-operative Bank and the District Co-operative Banks admittedly employ more than fifty persons and hence there is no statutory exclusion under Section 16(1