The issue involved in these appeals is of interpretation of clause (b) of sub-Section (3) of Section 1 of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 (for short, ‘the 1952 Act’). (Para 1)
The appellant is engaged in manufacturing, assembling, and selling umbrellas. The respondent (the Regional Provident Fund Commissioner) issued a notice dated 30th December 1997 to the appellant, alleging that the 1952 Act was applicable to the appellant. It was alleged in the notice that the business of the appellant fell in the category of ‘trading and commercial establishments’ notified under the notification dated 7th March 1962, issued by the Central Government in the exercise of powers under clause (b) of sub-Section (3) of Section 1 of the 1952 Act. The respondent made an Inquiry under Section 7A of the 1952 Act. The respondent held that the case of the appellant was covered by the notification dated 7th March 1962. A Review Petition was filed by the appellant, which was rejected by the respondent. An appeal preferred by the appellant to the Appellate Authority against the decision of the respondent was dismissed. Being aggrieved by the said orders, a Writ Petition was filed by the appellant. The learned Single Judge dismissed the Writ Petition, and the order of the learned Single Judge has been confirmed by the impugned judgment by a Division Bench of the Kerala High Court in a Writ Appeal filed by the respondent. (Para 2)
It is not the case of the appellant that her establishment has been exempted under Section 16 of the 1952 Act. Under the notification dated 7th March 1962, there is a category of ‘trading and commercial establishments’. Admittedly, the appellant is carrying on the business of assembling/manufacturing umbrellas and selling the same. The respondent has recorded a finding of fact that the business of establishment of the appellant was of assembling umbrellas and selling the same in her own outlet. Thus, the establishment of the appellant is a commercial establishment. It is an establishment predominantly carrying on commercial activity. Therefore, it cannot be denied that the business of the appellant will fall in the category of ‘trading and commercial establishments’. In the circumstances, the case of the appellant will be governed by the said notification issued under clause (b) of sub-Section (3) of Section 1. The decision of this Court in the case of Regional Provident Funds Commissioner. Vs. Shibn Metal Works (Supra) does not deal with clause (b) of sub-Section (3) of Section 1. (Para 8)
SUPREME COURT OF INDIA
2023 STPL(Web) 411 SC
2023 INSC 987
Thankamma Baby Vs. The Regional Provident Fund Commissioner, Kochi, Kerala
Civil Appeal No. 4619 of 2010 with Civil Appeal No. 4620 of 2010-Decided on 7-11-2023
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