(Aniruddha Bose and Vikram Nath, JJ.)
Raiganj Municipality ________________________________ Appellant;
v.
Central Provident Fund Commissioner Employees Provident Fund Organization and Others _________________________ Respondent(s).
Civil Appeal No. 5913 of 2022 [Arising out of SLP(C) No. 27227/2019], decided on September 1, 2022
The Order of the court was delivered by
Order
1. Leave granted.
2. The Raiganj Municipality, constituted under the provisions of the West Bengal Municipal Act, 1993 is before us questioning the legality of a judgment delivered by a Division Bench of the High Court at Calcutta regarding certain steps taken against them by the Central Provident Fund Commissioner Employees Provident Fund Organization. Learned counsel appearing for the Organization submits that the dispute actually relates to payment of provident fund dues in relation to contractual employees engaged by a municipality. The appellant was partly successful before the Single Judge of the High Court and the question of exemption under Section 17 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 was directed to be explored. Certain protection from coercive action was also given, pending decision on that count. That writ petition was heard with a similar writ petition filed by another municipal body, Tarakeswar Municipality. Both the writ petitions were disposed of in the following terms:
“Mr. Anjan Bhattacharya and Mr. Biswaroop Bhattacharyya, learned advocates respectively appear on behalf of petitioners in writ petitions listed under serial nos. 14 and 15 of day’s list. They submit, their respective clients are to be exempted either under sections 16 or 17 of Employees’ Provident Fund and Miscellaneous Provisions Act, 1952. Mr. Siddiqui, learned advocate, Senior Government Advocate, appears on behalf of State in WP8964(W) of 2018 and submits, by letter dated 2nd September, 2013 his client had requested this exemption with regard to petitioners. Request was made to joint Secretary, Ministry of Labour and Employment, Government of India. This should be seen as compliance of proviso under sub-section(1) in Section 17. On query from Court Mr. Prasad, learned advocate appearing on behalf of the Authority submits, Central Board has been duly constituted under Section 5A and is functioning. Central Provident Fund Commissioner is ex-officio member of the Board. Mr. Pattanayak, learned advocate appears on behalf of Union of India in writ petition listed as item no. 15 and submits, his instructions are, Central Board has not communicated its decision in the matter.
Paries are to approach Central Board for its opinion on consultation sought by State as in letter dated 2nd September, 2013, addressed to joint Secretary, Ministry of Labour and employment, Government of India. In vent the Board requires fresh consultation, it might direct so. On opinion of the Board being made known, the matter is exemption is to be dealt with by appropriate Government under Section 17 of the said Act. Till that time, the authority will restrain itself from seeking to recover in distress of petitioners.
With the above, the writ petitions are disposed of.”
3. Admitted position is that the Provident Fund Authorities preferred a Letters Patent Appeal against the judgment of the learned Single Judge in the case of Tarakeswar Municipality only and there was no appeal vis-a-vis the case of Raiganj Municipality, who is the appellant before us. The Division Bench, however, set aside the judgment of the learned Single Judge in relation to Raiganj Municipality as well. It was held by the Division Bench:
“In these facts and circumstances, if the Municipal authorities want themselves to be exempted from the scheme, they have to approach the authority concerned as provided in the Act of 1952. The letter issued by the Government of West Bengal, Department of Municipal Affairs on 2nd September, 2013, cannot be said to be an application made by the concerned Municipalities in terms of the provisions laid down in the Act of 1952 for seeking exemption.
The order impugned, therefore, is liable to be set aside ad should be set aside. Since we find that the two writ petitions are devoid of merit, the same are also dismissed.
Dismissal of the writ petitions will, however, not prevent the two Municipal authorities from approaching the authority concerned in terms of the provisions of the said Act of 1952 to seek exemption.”
4. The sole point urged before us on behalf of the appellant is that the Division Bench ought not to have passed any judgment against it considering the fact that in their case, no appeal was preferred by the Provident Fund Authorities and they had no opportunity to be represented before the Division Bench. On this count, there is no dispute. In this factual situation, in our opinion, the judgment of the Division Bench ought to be set aside so far as the appeal against the judgment delivered in the case of Raiganj Municipality is concerned as there was no appeal before the Division Bench against the judgment delivered in the writ petition filed by the present appellant. It is ordered accordingly. The order of the learned Single Judge shall stand restored so far as the present appellant is concerned.
5. In course of hearing before us, on behalf of the Provident Fund Authorities, it has been submitted that the dispute involved stand settled now and for contractual employees also the Municipal Authorities are bound to comply with the provisions of the 1952 Act.
6. If that is the case, it will be open to the Provident Fund Organization to take steps as may be permissible in law but this stand of theirs cannot cure the defect in the judgment impugned in this appeal.
7. The appeal is allowed in the above terms.
8. There shall be no order as to the costs.
9. Pending application, if any, also stands disposed of.
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