The Act applies to establishments even if the number of employees falls below 20, and the employer is liable to pay interest despite the pendency of a writ petition. Overtime allowance should not be included in the calculation of provident fund liability.

Deepak Gupta, J.

The petitioner is the editor, printer and publisher of a Bengali daily newspaper named Dainik Ganadoot being published from Agartala.

2. Vide order dated 28.7.1998 passed under Section 7A of the Employee’s Provident Funds and Miscellaneous Provisions Act, 1952(hereinafter referred to as the Act), the dues of the petitioner under the Act were determined at Rs.1,76,206.50 paisa. The petitioner was directed to pay the amount. Aggrieved by the said order the petitioner filed a writ petition being Civil Rule No.475 of 1998 in the Agartala Bench of the Gauhati High Court which then exercised jurisdiction over the State of Tripura. During the pendency of the petition the operation of the order passed under Section 7A of the Act was stayed. The writ petition was finally dismissed on 22.5.2007. Thereafter the petitioner filed Writ Appeal No.52 of 2007 challenging the aforesaid judgment. Stay was granted in respect of the recovery till disposal of the writ appeal. Finally the writ appeal was dismissed on 11.10.2007 and the order of the learned single Judge was affirmed.

3. After the writ appeal had been dismissed the authorities(respondent no.2) under the Act issued notice of demand on 17.9.2008 directing the petitioner to make payment of the amount of Rs.1,76,206.50 paisa within 15 days. The petitioner deposited this amount in 4 instalments and the last such instalment was deposited on 27.02.2009. The petitioner was directed to appear before the Regional Provident Fund Commissioner and he then determined the employees’ provident fund contribution dues for the period from May, 1998 to September, 2008. The petitioner produced the original pay register. The authorities kept Xerox copies of the same and returned the original to the petitioner. Thereafter, demand notice was issued to the petitioner asking him to deposit a sum of Rs.5,15,241/- and a sum of Rs.3,21,352/- as interest up to 21.8.2009. The petitioner filed an application for review of this order which has been rejected. Hence the present petition.

4. Four points have been raised in the petition. Firstly the number of staff had been reduced and since these employees were less than 20, the petitioner was not liable to pay employees’ provident fund. Secondly, it is contended that because the writ petition was pending and stay order was granted, the petitioner had not collected the contribution of the employees. Therefore, the petitioner cannot be held liable to pay interest for the period when the matter was sub-judice before this Court. Thirdly it is contended that overtime allowance could not have been made part of the wages to determine provident fund liability. Lastly, it is contended that the petitioner cannot be held liable to pay the amount of the employees’ contribution. In this behalf it is also urged that paras 30 and 32 of the Employees’ Provident Funds Scheme, 1952 are violative of the provisions of the Act.

5. Mr. A K Bhowmik learned senior counsel for the petitioner has stressed that the impugned order passed is totally illegal and is liable to be set aside. On the other hand, it is urged by Mr. A Lodh learned counsel appearing for the Union of India and the Regional Provident Fund Commissioner that the order is totally valid. Certain judgments have also been cited by both sides.

6. With regard to the first submission that the establishment of the petitioner is not covered under the Act, in view of the earlier decision given against the petitioner no other questions need be gone into except the contention that since the number of employees is less than 20 the Act does not apply. Reference has been made to Sections 1(3) and 1(5) of the Act which read as follows :

“1(3) Subject to the provisions contained in section 16, it applies –

(a) to every establishment which is a factory engaged in any industry specified in Schedule I and in which twenty or more persons are employed, and

(b) to any other establishment employing twenty or more persons or class of su