M G PODDAR Vs. REGIONAL PROVIDENT FUND COMMISSIONER

JUDGEMENT

(1.) The petitioner is a Solicitor and Advocate of this Court and is practicing in this Court. The petitioner was enrolled as a Solicitor in 1935 and as an Advocate on April 28, 1950. He is also a Supreme Court Advocate enrolled as such on November 4, 1955. It is alleged that for the purpose of carrying on the aforesaid profession of Attorney as well as Advocate, the petitioner had an office at 6, Old Post Office Street, Calcutta, and employed clerk, bearers etc. On October 27, 1964, he was served with a notice intimating that the Employees' Provident Fund Act of 1952 had been extended to the Attorneys as defined in the Advocates Act, 1961, by the notification of the Government of India dated September 17, 1964, and directed the petitioner to transfer the past accumulations in the existing provident fund. In the said notice it is, however, stated that if it is contended that the petitioner's establishment does not come within the provision of the said Act or Scheme, the petitioner may show cause. By letter dated December 1, 1964, the petitioner states that the Act and Schemes are not applicable to the petitioner and that the profession of an Attorney and/or Advocate is not an establishment within the meaning of the said Act and, as such, the notice is prima facie without jurisdiction. The petitioner's profession as an Attorney is not an establishment and by carrying out a profession as a Solicitor and/or Advocate cannot be said to be an establishment within the Employees' Provident Fund Act of 1952 and, as such, the notice issued against the petitioner is prima facie without jurisdiction and liable to be set aside.

(2.) Before I deal with the question raised it will convenient for me to set out section 1 sub-section (3) before the amendment of the said section in 1956. The said section stood as follows: (3). Subject to the provisions contained in section 16, it applies in the first instance to all factories engaged in any industry specified in Schedule I in which fifty or more persons are employed, but the Central Government may, after giving not less than two months' notice of its intention so to do. Notification in the Official Gazette, apply the provisions of this Act to all factories employing such number of persons less than fifty as may be specified in the notification and engaged in any such industry. After the amendment by the Employees' Provident Fund (Amendment) Act, 1952, the said sub-section reads as follows: -

(3.) Mr. Sankar Das Banerjee appearing for the petitioner contended that the Employees' Provident Fund Act and Schemes do not apply in the matter of the Solicitor's firm because it is argued that they are neither trade nor establishment and not a factory engaged in industry or any other establishment within the meaning of the Act. It is argued by Mr. Banerjee that in other establishment mentioned in section 1, sub-section (3)(b) there must be an establishment which is the nature of a factory or such commercial establishment which is either trade, industry or business undertaking. A Solicitor's firm, it is argued is neither a factory nor trade or industry or a commercial establishment coming within the mischief of the Act. Mr. Banerjee relied upon the cases (1) Secretary, Madras Gymkhana Club Employee's Union v. Management of the Gymkhana Club, AIR 1968 SC 554 and (2) Bombay Cricket Club v. Labour Union, AIR 1969 SC 276 and argued that the Solicitor's firms are not engaged in either any industry or trade.