1. This is an application under Articles 226 and 227 of the Constitution of India made on behalf of the Balasore Motor Association through its manager challenging a demand raised by the Regional Provident Fund Commissioner by virtue of the powers conferred upon him under Section 7A of the Employees' Provident Funds Act, 1952. The petitioner contends that it is not an establishment employing 20 or more persons, and as a matter of fact, apart from being an Association of bus owners, it does not carry on any business by itself. It does not employ 20 persons or more and therefore' is not able under the provisions of the Central Act No. XIX of 1952 to make any contribution as provided for under Section 6 of the Act. In the circumstances, the determination of the amount alleged to be due from it under the provisions of the Act is without jurisdiction and incompetent. In the counter affidavit filed by the opposite party it was asserted that enquiries had been made by an Inspector, under the establishment of the Regional Provident Fund Commissioner, before whom two statements had been given by the petitioner. Therein, it is alleged in the counter-affidavit, it has been conceded that there are more than 20 employees in the establishment.
2. Section 1 (3) (b) of 'the Act provides that the provisions of the Act would apply to any establishment employing 20 or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette, specify. A notification dated 29-7-61 published in the Gazette of India on 5-8-61 has been placed before us along with the counter affidavit to show that the provisions of the Act have been extended to Road Motor Transport Establishments. For convenience, the notification may be extracted:--
Government of India
Ministry of Labour & Employment
Dated, New Delhi, the 29th July, 1961,
G. S. R. 1013. Whereas the Employees' Provident Funds Act, 1952 (19 of 1952), hasalready been applied to the following classes of establishments wherein 50 or more persons are employed.
Now, in exercise of the powers conferred by clause (b) of Sub-section (3) of Section 1 of the said Act, as amended by Act No. 48 of 1960, the Central Government hereby directs that, with effect from the 31st July, 1961 the said Act shall apply to the following classes of establishments, in each of which 20 or more persons are employed, namely:--
1. Plantations of Tea (other than those in the State of Assam), and Plantations of Coffee, rubber, cardamom and pepper.
2. Iron, Ore, Lime Stone, manganese, Gold and mica mines.
3. Coffee curing establishments.
4. Road Motor Transport Establishments.
5. Every cane farm owned by a sugar factory.
It is on the basis of this notification that the opposite party contends that the petitioner is an establishment to which the provisions of the Act must be taken to have been made applicable.
3. The two statements appended to the counter affidavit as Annexures B and C clearly go to show that employees who constituted 'drivers, cleaners and conductors were being employed under individual bus owners, and therefore cannot be taken to be employees under the petitioner-Association Annexure B shows that there were 7 employees under the petitioner who were paid on monthly basis, while Annexure C shows that there were 6 such employees. On the basis of this information it is difficult to accept the contention in the counter-affidavit that the requirement of Section 1 (3) (b) of the Act is satisfied in this case to confer jurisdiction on the authorities set up under the Act to require the petitioner to comply with the provisions of the Statute.'
4. This is all the more so on account of the fact that the order purporting to be under Section 7-A of the Act does not record any findings of liability nor does it indicate the basis which has led the Regional Provident Fund Commissioner to hold that the petitioner is liable under the Act. The impugned order dated 17-2-1965 reads as follows :--
'Office of the Regional, Provident Fund
No. Enf. 80-64/1280/RPF,
Dated, Cuttack the 17th February, 1965.