Case study on employees provident fund act 1952

Case study on employees provident fund act 1952

M/S Gowri Shankar Theatre v/s The Assistant Provident Fund

Provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, as in force for the time being, shall apply to every cinema theater in which five or more workers are employed on any day, as if such cinema theater were an establishment to which the aforesaid Act had been applied by a notification of the Central Government under the proviso to sub-section (3) of Section 1 thereof, and as if each such worker were an employee within the meaning of that Act.

On the facts of the case, it is not in dispute that at the time when the writ petitioner has been making contribution under the Employees Provident Fund and Miscellaneous Provisions Act, 1952, the number of employees was more than 5. 

The grievance of the appellant is that the theater was closed for some time and thereafter, it was reopened with four new employees and therefore, there is reconstitution and in such view of the matter the question of applicability of Section 24 does not arise. A reference to the pleadings made in the affidavit filed in support of the writ petition it is stated that due to financial disability the theater was closed and thereafter it was re-opened and at the time of reopening, there were only four employees. 

It is not the case of the writ petitioner in the affidavit filed in support of the writ petition as if the establishment was closed and thereafter it was reconstituted with new four employees, even though that is the submission made by the learned counsel now before this Court. In any event, whether there was a closure of the theater and reopening of the same with the new employees is an immaterial fact. What is required is that the theater which is run by the writ petitioner which has in fact made contribution under the Employees Provident Funds and Miscellaneous Provisions Act, 1952(19 of 1952)in respect of its workers as per Section 24 of the Cine Workers and Cinema Theater Workers (Regulation of Employment) Act, 1981(50 of 1981). Under Section 1(3)(b) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 which is as extracted here under, "(b)to any other establishment employing [twenty] or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette, specify in this behalf:

Provided that the Central Government may, after giving not less than two months' notice or its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any establishment employing the number of persons less than [twenty] as may specified in the notification.

Enables the Central Government by notification in the Official Gazette to extend the applicability of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, to any other establishment wherein the number of employees are less than 20. The provision is made in order to bring within the purview of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 even the establishments wherein less than 20 numbers are employed as workers. The Cine Workers and Cinema Theater Workers (Regulation of Employment) Act, 1981 (50 of 1981) in respect of the Cinema Workers makes it clear that in respect of the Cinema Theaters, the Employees  Provident Fund and Miscellaneous Provisions Act 1952 is applicable in cases where number of employees are 5 or more and therefore, the enactment should be taken as a notification as per the provisions of Section 1(3) (b) to the Employees Provident Fund and Miscellaneous Provisions Act, 1952. As per Section 1(5) of the Employee Provident Fund and Miscellaneous Provisions Act, 1952 which is extracted here under "(5)An establishment to which this Act applies shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time falls below twenty"

Judgment

Once an establishment is covered under the Employees  Provident Fund and Miscellaneous Provisions Act, 1952, merely because the number of employees has come down, that will not take away the applicability of that Act. The contention of the learned counsel for the appellant that Section 1(5) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 speaks only 20, but as far as the appellants case is concerned, the number of employees which was 5, came down to 4 and therefore Section 1 (5) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 cannot apply, has no meaning. When once the applicability of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 has been extended to Cine Workers as per Section 24 of the Cine Workers and Cinema Theatre Workers (Regulation and Employment) Act 1981, necessarily all provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 are to be applied by harmonious construction of Section 1(5) of the Act in respect of Cine Theater. Therefore, it should be taken as 5 instead of 20 since under the Cine Workers and Cinema Theatre Workers (Regulation and Employment) Act 1981, the minimum requirement is 5. In this view of the matter, there is no difficulty to come to the conclusion that Section 1(5) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 is applicable to the appellant establishment.