SUN GRANITES EXPORTS LTD. Vs. COMMISSIONER

JUDGEMENT

(1.) This writ application has been filed for quashment of an order dated 18.02.1999 passed by the Commissioner, Regional Provident Fund-(II) E & R, Orissa in the matter of a proceeding under section 7(A) of the Employees Provident Fund Act and Miscellaneous Provision Act 1952 (hereinafter in short is referred to as the 'EPF Act').

(2.) The order as above is said to be wholly illegal in bringing into application, the provisions of the EPF Act to the establishment of the Petitioner-Company during the period, when it was enjoying the benefit of exemption from the application of the provisions of said Act in view of the statutory provision as it was existing at the time of commencement of the business of manufacturing of polished granites by the Petitioner-Company by engagement of employees and going for commercial production on 18.05.1996. It is stated that as per provision under section 16 of the EPF Act, the Petitioner-Company was to enjoy the exemption for a period of three years and it was so enjoying in view of section 16(1)(d) of the EPF Act. On 05.12.1997, the petitioner received a notice that the provisions of the ESI Act have become applicable in view of the omission of the provision contained under clause-(d) of sub-section 1 of section -16 of the EPF Act by way of amendment by the Ordinance duly published in the Gazette of India on 22.09.1997 coming into force at once on receiving the assent of the Hon'ble President of India. Thus, challenge to the Regional Provident Fund Commissioner. That has been turned down. The question is as to whether by such amendment by way of promulgation of the Employees Provident Fund Amendment Ordinance, 1997 (No. 17 of 1997) published in the Gazette of India on 22.09.1997, omitting Clause-d at sub-section -1 of section 16 in specific in so far as the exemption of any establishment from the provisions of EPF Act is concerned would operate against the Petitioner's Company or not. In other words, the claim is that since the Petitioner-Company when was so set up and went for commercial production as was enjoying the exemption under section 16(1)(d) of the EPF Act, the same would continue to be enjoyed till expiry of three years as stated therein notwithstanding such omission / deletion of said section 16(1)(d) of the EPF Act.

(3.) Learned counsel for the petitioner submits that the amendment has to be made applicable prospectively since no contrary intention either has been expressly stated in the said amending act or it can be so implied. According to him, the Petitioner-Company is to enjoy the exemption for a period of three years i.e., till 17.05.1999 in view of the fact that when it went for commercial production said provision of exemption was very much there in the statute. Therefore, its omission by way of amendment at a later point of time cannot take away the right of the Petitioner-Company in so far as the conferment of grant of exemption to the Petitioner-Company from the application of the provisions of the ESI Act is concerned. It is submitted that as per section-6 of the General Clauses Act, that would continue in so far as the Petitioner-Company is concerned in holding the field keeping the Petitioner-Company beyond the purview of the ESI Act notwithstanding its subsequent omission / repeal. The right already availed of under the said repealed provision of the ESI Act is not liable to be tinkered with or taken away by the amendment which has to be applicable to the establishments coming into existence subsequent thereto.