JYOTHI HOME INDUSTRIES REGISTERED PARTNERSHIP FIRM MYSORE Vs. REGIONAL PROVIDENT FUND COMMISSIONER IN KARNATAKA BANGALORE

JUDGEMENT

(1.) all these writ appeals are preferred against the order dated 22-1-1993 passed by the learned single judge in writ petilion nos. 25471 and 25472 of 1990 and other writ petitions. Except writ appeal nos. 681 and 682 of 1993, which are preferred by the respondents in the writ petitions, all other writ appeals are preferred by the petitioners in the writ petitions. Hence all the writ appeals are heard together and are disposed of by this common judgment.

(2.) in the writ petitions, the petitioners sought for a declaration that para 26(l)(a) of the employees' provident funds scheme, 1952 (hereinafter referred to as the 'scheme') as amended by the notification No. S - 35012 of 1990-ss. Ii, dated 19-10-1990 is ultra-vires being beyond the scope of the Provisions of the employees' provident funds and miscellaneous Provisions Act, 1952 (hereinafter referred to as the 'act'). The petitioners challenged the aforesaid notification dated 19-10-1990 on another ground viz., that it was not placed before the parliament as required by Section 7(2) of the act. However it was noticed by the learned single judge in para 6 of his order that the notification had, in fact, been placed before the parliament on 7-1-1991 and 8-1-1991 in terms of Section 7(2) of the act. Therefore, the learned single judge has ob served that the above contention need not be considered. Before us, such a contention was not urged having regard to the fact that the impugned notification dated 19-10-1992 was placed before the parliament.

(3.) the learned single judge has held that the notification dated 19-10-1990 which modified para 26(l)(a) of the scheme has to be read in the light of the decision of the Supreme Court in the provident fund inspector, guntur v t.s. hariharan, AIR 1971 SC 1519. The learned single judge has specifically held thus: "it is not merely in relation to the coverage that the principles are set down in that decision it is in relation to concept of employment itself as to the applicability of the act that is considered. The Supreme Court took into consideration that the act is intended to apply only to establishments which have attained financial stability and is prosperous enough to be able to afford regular contribution and contribution by the employer is an essential part of the statutory scheme for effectuating the object of inducing the workmen to save something and therefore, must possess stable financial capacity to bear the burden of regular contribution under the act." it is also further observed by the learned single judge in the light of the observations made in the judgment of the Supreme Court in hariharan's case, AIR 1971 SC 1519 thus : "it must be dictated by the normal regular requirement of the establishment reflecting its financial capacity and stability and therefore, the employment in the context must mean that those who have been employed by the establishment by taking into account the general requirement of the establishment for its regular work which would have a commercial nexus with its general financial capacity and stability. The concept of employment is construed as employment in the regular course of business of the establishment and such employment obviously would not include employment of a few persons for a short period on account of some exigencies and necessarily it requires determination of the question in each case on its own peculiar facts. If this be the true legal position as to the concept of employment whether any period is prescribed by the respondents under the scheme or not would not be of much relevance. It only gives an indication or guidance. What is of importance is whether an employee is regularly employed for the purpose of establishment in the light of the test laid down by the Supreme Court in hariharan's case. If such an interpretation is placed on the expression "every employee employed in connection with the factory or establishment", no difficulty would arise." while referring to the contention of the learned counsel for the petitioners that the difficulty would arise only in applying the scheme, the learned single judge has further observed thus: