1. Heard. Rule. Rule made returnable forthwith with the consent of the parties.

2. By this petition the petitioner Society challenged the order dated 28.6.2019, passed by respondent No.1, bearing No.NG/AKL/14731/PF/ENF/901 and the order dated 6.2.2020 passed by respondent No.2 in the matter.

3. In brief the submission of the petitioner is that petitioner is a Co-operative Society registered under the provisions of the Maharashtra Co-operative Societies Act bearing registration No.1012. The Society runs a Ginning Factory at Karasgaon. Initially the E.P.F. Code was allotted to the Society by the respondents and accordingly the Society was paying the provident fund of the employees.

4. It is the case of the petitioner that the establishment of Ginning Factory has been closed in the year 2003. Since then, there are no employees working in the establishment, consequently there was no need to pay any contribution of the employers as per the provisions of Employees’ Provident Funds and Miscellaneous Provisions Act, 1952.

5. The petitioner in support of their submission states that since the year 2003 the Ginning Factory is closed, placed on record the communication of the M.S.E.D.C.L. stating that since 31st August 2003 the electric supply is disconnected to the Society and thereby all activities of Society are stopped till date.

6. The petitioner further submitted that the President of the Society has taken the charge of the post in the month of July 2015. After taking the charge he has attempted to secure the documents as to when the establishment of the Ginning Factory stopped working and the document about the closure of the establishment. In this regard, he has placed on record the copy of application dated 24.5.2016 filed before the Cotton Federation Amravati to provide information in this regard.

7. In this background, it is the submission of the petitioner that though the notices were issued by the respondents for verification of record, the petitioner Society which was not actually working tried to reply to the various notices issued by the respondents by collecting relevant documents.

8. The petitioner has pointed out that the Society received the notice under Section (7-A) of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, dated 25.1.2019 whereby proceedings were initiated for assessment of dues for the period January 2000 to March 2014.

9. The petitioner further pointed out that the Society on 8th February 2019 has made communication with the respondent No.2 and specifically pointed out that since 31st August 2003 the electric supply to the Ginning Factory is disconnected and consequently the entire working of the establishment is closed. In support of this submission petitioner also enclosed the copy of communication from the M.S.D.C.L. dated 19.4.2016.

10. The communication dated 8.2.2019 from the petitioner to respondent No.2 is duly acknowledged by the respondent No.2. However, though this fact was specifically brought to the notice of respondent No.2 the impugned order under Section (8-F) of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 came to be passed by respondent No.2 in the matter and consequently further order date 28th June 2019 passed by the respondent No.1 in the matter thereby determining the amount of Rs.10,35,575/- towards due against the establishment for the period from 1.1.2000 to 31.3.2014. The same is under challenge by way of present petition.

11. In response to the notices issued by this Court respondent Nos.1 and 2 appeared in the matter and strongly opposed the present petition. According to the respondents, there is an alternative remedy available to the petitioner to prefer appeal in the matter and, therefore, the present petition is not tenable. Secondly, it is stated that no justified reason has been putforth by the petitioner to invoke the extraordinary jurisdiction of this Court. According to respondents, there is no prima facie error committed by the respondent Nos.1 and 2 in the matter. Hence, petition deserves to be dismissed.

12. I have heard both the parties at length.

13. In respect of the preliminary objection which is raised by the respondents in the matter, the respondents have relied upon the judgment of this Court, in the case of Siddhi Engineering Aurangabad Vs. Regional Provident Fund Commissioner, reported in 2024(2) Mh.L.J. 792. Perusal of the Judgment of this Court show, particularly para 10, it is held that, from the pleading in the petition there is no explanation as to why the petitioner did not file an appeal within the limitation period in order to get the appeal registered in the office of C.J.I.T. Hence, in absence of any explanation the petitioner cannot approach before this Court to invoke the extraordinary jurisdiction.

14. In this regard it will be proper to refer the Judgment of Hon’ble Supreme Court of India in the case of Commissioner of Income Tax and Ors. Vs. Chhabil Dass Agarwal, (2014) 1 SCC 603 and Whirlpool Corporation Vs. Registrar of Trade Mark, reported in (1998) 8 SCC 1, wherein the Hon’ble Supreme Court of India has held that this Court can entertain the petitions in exceptional cases where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defines of the fundamental principles of judicial procedure or when an order is passed in violation of the principles of natural justice. In the circumstances, it would be first therefore required to look into whether the petitioner has pleaded in his petition as to why he did not approach to the Appellate Court and whether the case falls in the exceptions which are carved out by the Hon’ble Supreme Court of India in the case of Chhabil Dass Agarwal and Whirlpool Corporation (supra).

15. In this regard the perusal of the memo of the petition it is clear that the petitioner has came with a submission before this Court by stating that respondents have acted extraneously and failed to consider the important aspect of Section 16 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 and, secondly, no hearing opportunity was granted to the petitioner, nor the reply filed before respondent No.2 was not taken into consideration in the matter. Hence, according to the petitioner, the respondent authority has not acted in accordance with the provisions of the enactment and, secondly, the impugned order came to be passed in defines of the fundamental principles of judicial procedure. Therefore, in my considered opinion, the case of the petitioner is governed by the principles laid down in the case of Chhabil Dass Agarwal and Whirlpool Corporation (supra) and, therefore, the present petition can be entertained on merits. Furthermore, question of law raised in the matter is required to be dealt with by this Court and, therefore, I am inclined to interfere in the present matter.

16. The petitioner in the present case has heavily relied upon Section 16 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 which reads as under :

                   “16. Act not to apply to certain establishments. -

                   [(1) This Act shall not apply-

                   (a) to any establishment registered under the Co-operative Societies Act 1912 (2 of 1912), or under any other law for the time being in force in any working without the aid of power; or

                   [(b) to any other establishment belonging to or under the control of the Central Government or a State Government and whose employees are entitled to the benefit of contributory Provident Fund or old age pension in accordance with any Scheme or rule framed by the Central Government or the State Government Governing such benefits; or

                   (c) to any other establishment set up under any Central, Provincial or State Act and whose employees are entitled to the benefits of contributory provident fund or old age pension in accordance with any Scheme or rule framed under that Act governing such benefits;

                   [(2) If the Central Government is of opinion that having regard to the financial position of any class of [establishments] or other circumstances of the case, it is necessary or expedient so to do, it may, by notification in the Official Gazette, and subject to such conditions as may be specified in the notification, exempt [whether prospectively or retrospectively,] that class of [establishments] from the operation of this Act for such period as may be specified in the notification.]

The petitioner has specifically relied upon clause 1(a) of this provision by making a submission that sub-clause (a),(b) and (c) of the clause (1) are independent and exception to each provision and, therefore, same is required to be considered independently.

17. It is the submission of the petitioner that the provisions of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 cannot be made applicable to an establishment registered under the Co-operative Societies Act, wherein working employees are less than fifty persons and working without the aid of power. As such, it is his submission that the provisions of this Act cannot be made applicable to a co-operative Society like petitioner which is not having the power supply since year 2003 and, therefore, the proceeding initiated by the respondents for assessment from year 2000 to 2014 is not in terms of the provisions of the Act and therefore indulgence of this Court is necessary in the matter.

18. It is clear from statement of object and reasons of the Act that provisions of this Act is a piece of social welfare legislation and, therefore, same needs a liberal construction so as effectuate the intention of the legislature. So also it is well settled position of law that any provision, which provides for exemption from beneficial social welfare legislation must be construed strictly. I am also alive to the legal position that if the words are neither ambiguous or obscure while interpreting a social welfare legislation, the Court should adopt a beneficial rule of construction when language is plain and unambiguous without considering the consequences of such interpretation. It will be relevant to refer the judgment of this Court in the case of Aniket College of Social Work Aniket Shikshan Sanstha, Dighori Vs. Assistant Provident Fund Commissioner, Sub-Regional Office, Nagpur and another, 2017(5) Mh.L.J. 437 wherein this Court observed in Para 15 as under :

                   “15. We are alive to the legal position that a provision providing for an exemption from the provisions of a beneficial statute must be strictly construed. This juristic principle is as deeply entrenched in our jurisprudence as the principle of liberal construction or interpretation of beneficial or social welfare statute. However, neither the principle of liberal construction of a beneficial or social welfare legislation nor the principle of interpretation that a provision providing exemption from the applicability or rigor of a beneficial or social welfare legislation, permits or justifies doing violence to the language of the statute. The principle of liberal construction of beneficial social welfare legislation or the principle of strict construction of an exemption provision would come into play only if there is more than one possible interpretation. If the words are neither ambiguous or obscure, the anxiety or urge to advance the object of the legislation must not result in an artificial expansion of the category of beneficiaries.”

19. In this regard, it would be further pertinent to note that Section 16(1)(a) made it clear that the Society which is established under the Co-operative Societies Act, 1912 is exempted from the provisions of this Act if the Society is having employees less than fifty persons and, secondly, working without the aid of power. Here from the documentary evidence which is placed on record by the petitioner, it is clear that the working of the Society is closed since year 2003 and the electric supply was disconnected from the year 2003. It is clear from the record that there were not more than fifty employees working in the establishment of Ginning Factory. Hence, in my considered opinion, in view of Section 16(1)(a) the provisions of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 are not applicable to the petitioner Society.

20. Respondents attempted to contradict the view express by this Court by relying upon the judgment of Hon’ble Supreme Court of India in the case of Yashwant Gramin Shikshan Sanstha Vs. Assistant Provident Fund Commissioner, reported in (2017) 5 SCC 579. With due respect, the perusal of this Judgment it is clear that, Hon’ble Supreme Court of India has not dealt with issue involved in the matter. The issue which was raised and considered in the said matter about applicability of Section 16(b) of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952. This fact is clear from para 19 of the Judgment which reads as under :

                   “19. The fact that the Appellant is not falling within the ambit of Clause (a) of Section 16(1), however, can be no impediment for the Appellant to peruse the argument regarding exemption by relying on Clause (b) of Section 16(1) thereof. We say so because, the excepted categories specified in Section 16 are mutually exclusive. They are separated by the word "or". Sub-clause (b) of Section 16(1) is an independent excepted category. It is attracted to any other establishment belonging to or under the control of the Central Government or a State Government "and" whose employees are entitled to the benefits of contributory provident fund-or old age pension in accordance with any scheme or Rule framed by the Central Government or the State Government governing such benefits. These twin conditions are required to be satisfied by the concerned establishment, seeking exemption from the provisions of the Central Act. In the present case, the employees working in the concerned schools/colleges of the Appellant are covered by the contributory provident fund scheme framed by the State Government, subject to eligibility. The second condition required for seeking exemption under the Central Act is thus fulfilled.”

Therefore, submission of respondents is not acceptable in the matter.

21. The consequential issue then arose whether the respondent Nos.1 and 2 while dealing with this matter can consider all these legal issues or not. In this regard, it would be irrelevant to refer the judgment of Hon’ble Supreme Court of India in the case of Food Corporation of India Vs. Provident Fund Commissioner and others, reported in (1990) 1 SCC 68 wherein the Hon’ble Supreme Court has held that under Section (7-A) of the Act the Commissioner is having the same powers as are vested in a Code under the Code of Civil Procedure for trying a suit. It would be relevant to refer the para 9 of this judgment, whereby the powers available to the Commissioner under the Act are determined by the Hon’ble Supreme Court of India which reads as under :

                   “9. It will be seen from the above provisions that the Commissioner is authorised to enforce attendance in person and also to examine any person on oath. He has the power requiring the discovery and production of documents. This power was given to the Commissioner to decide not abstract questions of law, but only to determine actual concrete differences in payment of contribution and other dues by identifying the workmen. The Commissioner should exercise all his powers to collect all evidence and collate all material before coming to proper conclusion. That is the legal duty of the Commissioner. It would be failure to exercise the jurisdiction particularly when a party to the proceedings requests for summoning evidence from a particular person.”

22. In the light of this legal position, it was expected from respondents that when the petitioner submitted his reply dated 8.2.2019 and specifically stated from 31st August 2003 the electric supply is permanently disconnected to the Ginning Factory and produce the document in that regard on record ought to have considered this aspect while passing the order under Section (7-A). But, bare perusal of the order nowhere shows any consideration of this material fact. Consequently, the applicability of Section 16(1)a) was not dealt with by the respondents authorities.

23. It is further pertinent to note that as per the notice issued by the Enforcement Officer of the respondent Department dated 25.1.2019 the assessment was required to be done for the period January 2000 to March 2014 of the establishment of petitioner Society. Admittedly, though petitioner came with a case that since the year 2003 the electricity power has been disconnected, but in their reply, dated 8.2.2019 specifically stated that they are ready to pay the provident fund from the period April 2000 to 31st August 2003. As such, the respondents are expected to look into this matter in terms of reply to notice of the assessment which was filed by the petitioner before respondent No.2 in the matter. However, perusal of the impugned order nowhere shows any consideration of the reply submitted by the petitioner Society.

24. Furthermore, the issue of applicability of the Act on the ground of not having electricity power since year 2003 is also not considered in the impugned order.

25. Considering the matter in it’s entirety these disputed issues were required to be dealt with by the respondent Nos.1 and 2. Hence, it will be proper that this matter should be remanded back to the respondent No.2 to consider the case of the petitioner of afresh in light of the reply dated 8.2.2019 filed by petitioner afresh. Hence, the following order is passed :

O R D E R

(i) The petition is partly allowed.

(ii) The impugned orders dated 28.6.2019, passed by respondent No.1 by invoking powers under Section (7-A) of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 and the order passed by the respondent No.2 dated 6.2.2020 passed under Section (8-F) of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 are quashed and set aside.

(iii) The matter is remitted back to the respondent No.2 Assistant Provident Fund Commissioner, Regional Office, Akola to decide afresh the entire case of the petitioner in the light of the reply submitted by petitioner dated 8.2.2019 by granting hearing opportunity within a period of 45 days from the date of production of this Order before him by the petitioner.

(iv) The petition is disposed of. No order as to costs.