Back
2009 Supreme(Mad) 1279
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE P. JYOTHIMANI & THE HONOURABLE MRS. JUSTICE ARUNA JAGADEESAN
M/s Gowri Shankar Theatre Represented by its Proprietor N. Shivaji Rao
Versus
The Assistant Provident Fund Commissioner Employee’ Provident Fund Organization Sub-Regional Office & Another
W.A.No.1155 of 2007 & M.P.No.1 of 2007
Decided on: 20-04-2009
For the Petitioner:K. Umar, Advocate.
For the Respondent:R1 & R2, K. Ramu, Advocate.
The main legal point established in the judgment is that the Employees Provident Funds and Miscellaneous Provisions Act, 1952, applies to a cinema theatre under Section 24 of the Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981, regardless of the number of employees.
Headnote:
Employees Provident Funds and Miscellaneous Provisions Act - Applicability to Cinema Theatre - Section 24 of the Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981 - [Employees Provident Funds and Miscellaneous Provisions Act, 1952] - [Section 24 of the Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981] - The court discussed the applicability of the Employees Provident Funds and Miscellaneous Provisions Act to a cinema theatre under Section 24 of the Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981. It interpreted the provisions of the Acts and concluded that the E.P.F. Act applies even if the number of employees is five, and if it comes down below 5, then section 1(5) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 has to be applied. The court also emphasized that once an establishment is covered under the Employees Provident Fund and Miscellaneous Provisions Act, 1952, merely because the number of employees has come down, that will not take away the applicability of that Act.
Fact of the Case:
The appellant, a theatre owner, contested the obligation to contribute under the Employees Provident Funds and Miscellaneous Provisions Act, 1952, as the number of employees had fallen below the threshold. The appellant argued that the Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981, should apply instead.
Finding of the Court:
The court found that the Employees Provident Funds and Miscellaneous Provisions Act, 1952, applied to the cinema theatre under Section 24 of the Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981, regardless of the number of employees, and dismissed the writ appeal.
Issues: The main issue was the applicability of the Employees Provident Funds and Miscellaneous Provisions Act, 1952, to the appellant's theatre under the Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981.
Ratio Decidendi: The court held that the E.P.F. Act applies even if the number of employees is five, and if it comes down below 5, then section 1(5) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 has to be applied. Once an establishment is covered under the Employees Provident Fund and Miscellaneous Provisions Act, 1952, merely because the number of employees has come down, that will not take away the applicability of that Act.
Final Decision: The Writ Appeal was dismissed, and the court rejected the appellant's request for leave to file an appeal to the Supreme Court.
P. Jyothimani, J.
1. The writ petition is filed against the order of the learned single Judge dated 24.07.2007 in W.P.No.21503/2007 by which the learned single Judge while dismissing the writ petition has held that the petitioner theatre would continue to be bound by Employees Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952).
2. The case of the appellant/writ petitioner is that the appellant has been running a theatre in Vaniyambadi and the number of employees employed in the said theatre was only 4. By mistake the appellant writ petitioner has been making contribution towards Employees Provident Fund. By order dated 14. 2007 passed by the second respondent which is impugned in the writ petition, the second respondent has directed the contribution by the appellant saying that when originally the contribution was made under the Employees Provident Funds and Miscellaneous Provisions Act, 1952(19 of 1952) even if the number of employees has fallen below, the appellant theatre is bound to contribute under the Employees Provident Funds and Miscellaneous Provisions Act, 1952.
3. The learned counsel appearing for the appellant would vehemently contend that inasmuch as the appellant writ petitioner is bound by the provisions of the Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981 (50 of 1981) which contemplates an obligation on the part of the employer to make contribution under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952(19 of 1952) only if the number of workmen employed is 5 or more and if the petitioner by mistake has contributed payment of Employees Provident Fund, that would not be taken as a contribution under the Employees Provident Funds and Miscellaneous Provisions Act, 1952(19 of 1952) and his submission is when the number of workers has come down to 4, necessarily the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952) should not be made applicable. He would further contend that Section 1 (5) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952(19 of 1952) which contemplates that when an establishment was originally covered under the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952) and subsequently if the number of persons comes down below 20, nevertheless the Employees Provident Funds and Miscellaneous Provisions Act, 1952(19 of 1952) would continue to apply and that provision is not applicable to the facts of the present case. The Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981 (50 of 1981) has not contained such clause. Therefore, according to him, the decision of the learned single Judge dismissing the writ petition and thereby making an obligation on the appellant writ petitioner to continue to contribute under the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952) is not sustainable in law.
4. On the other hand, Mr. K. Ramu, learned counsel appearing for the respondents would bring to the notice of this Court that under Section 1(3) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952) it is open to the Central Government by notification in the Official Gazette to apply the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 to any establishment and make them to contribute E.P.F. even in cases where less than 20 employees are employed and therefore the Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981 (50 of 1981) which is deemed to be a notification, since it is a statutory provision, enables the authorities to impose the obligation of payment of contribution in cases where 5 or more persons are employed in theatre. By harmoniously construing it means that the E.P.F. Act applies even if the number of employees is five. If it comes down below 5, then section 1(5) of the Employees Provident Fund and Miscellaneous Provisions A
