LAW OF CRIMES (IPC)

IN THE HON’BLE HIGH COURT OF KERALA

MOHANRAJ
V.
REGIONAL PROVIDED FUND COMMISSIONER

ON SUBMISSION TO THE HON’BLE HIGH COURT OF KERELA

MEMORANDUM ON BEHALF OF PETITIONERS

MOHANRAJ

SUBMITTED ON 03-10-2019

COUNSEL FOR THE PETITIONER:

MUSKAN KHATRI
ROLL NO. - 87
SEM - V

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 MOHANRAJ V. REGIONAL PROVIDED FUND COMMISSIONER

TABLE OF CONTENTS

1. List of Abbreviations ...................................................................................................... 3

2. Index of Authorities ........................................................................................................ 4

3. Statement of Jurisdiction ................................................................................................ 5

4. Summary of Facts .......................................................................................................... 6

5. Issues Raised… ............................................................................................................. 7

6. Summary of Arguments ................................................................................................. 8

7. Body of Arguments .......................................................................................................9

8. Prayer for Relief ............................................................................................................ 12

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 MOHANRAJ V. REGIONAL PROVIDED FUND COMMISSIONER

LIST OF ABBREVIATIONS

& AND

A.I.R. ALL INDIA REPORTER

CO. COMPANY

HC HIGH COURT

HON’BLE HONOURABLE

LTD. LIMITED

LLJ LABOUR LAW JOURNAL

MP MEMBER OF PARLIAMENT

NO. NUMBER

ORS. OTHERS

RPFC REGIONAL PROVIDED FUND COMMISSIONER

UOI UNION OF INDIA

V. VERSUS

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INDEX OF AUTHORITIES

JUDICIAL DECISIONS:

 Aluminium Corporation of India (Ltd.) v. Regional Provident Fund Commissioner and

Ors AIR 1958 Cal 570.
 K.R. Subbaier v. Regional Provided Fund Commissioner 1963 I LLJ 23.
 The District Exhibitors Association, Muzaffarnagar and others Vs. Union of India and
others AIR1991SC 1381.

LIST OF STATUTES:

 The Employees’ Provident Fund Scheme, 1952.

 The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952.

LIST OF BOOKS:

 Labour and Industrial Laws, S.N. Mishra, Central Law Publications, 28th Edition.

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STATEMENT OF JURISDICTION

The Petitioner humbly submits the memorandum for the Appellants before the Hon’ble High Court
of Kerala in the case filed by Mohanraj in the matter of Mohanraj v. Regional Provided Fund
Commissioner in exercise of its jurisdiction under Article 226 of the Constitution of India, 1950.

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SUMMARY OF FACTS

1. The Petitioner has started a small scale unit to manufacture household utensils by letter dated
30th March 1983 and intimated the 2nd respondent to introduce the Provident Fund scheme in the
unit from January 1983. This unit was started in 1980 but by virtue of being a sick unit was closed
down due to recurring loss incurred by previous proprietor. The same has been revived by the
present petitioner of the case and at his initiative only; the authorities took steps to cover it under
provident fund scheme.

2. Though the unit started in 1980, no steps were taken by the statutory authority against the
previous proprietor or the petitioner until the receipt of intimation in 1983. It is true that existence
of the factory was discovered only on receiving of the information. The factory had engaged more
than 20 employees.

3. The Regional Provident Fund Commissioner, on 15th June 1983, replied that the scheme is
applicable to the petitioner's establishment from 1980 onwards.

4. On 28th June, 1983 the petitioner pointed out that he is liable to pay provident fund contribution
only with effect from 1983.

5. On 13th July 1983, after remitting the contribution and dues for the year 1983 further intimation
was given.

6. On 18th September 1985, the RPFC informed that the petitioner is liable to pay the contribution
from 30th November 1980 onwards.

7. Petitioner has challenged proceedings of the Regional Provident Fund Commissioner and prays
for appropriate directions setting aside the same.

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ISSUES RAISED

1. WHETHER THE ACTION OF RESPONDENT IN REQUIRING THE PETITIONER TO

PAY CONTRIBUTION FOR THE PERIOD ANTERIOR TO 30TH MARCH 1983 IS
ILLEGAL AND CONTRARY TO STATUTORY PROVISIONS?

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SUMMARY OF ARGUMENTS

1. THE ACTION OF THE RPFC IN REQUIRING THE PETITIONER TO PAY

CONTRIBUTION FOR THE PERIOD ANTERIOR TO IS ILLEGAL AND
CONTRARY TO STATUTORY PROVISIONS AND RPFC IS THEREFORE TO
BE RESTRAINED FROM ENFORCING SUCH PAYMENT.

Para 32 of the Employees Provident Fund Scheme confers upon the employer the right to
recover the employees contribution that has been paid by him under Para 30. In the case of
The District Exhibitors Association, Muzaffarnagar and others v. Union of India and
others, the employer was not made liable to pay the contribution for the period of which,
he had already paid full wages to the employees.

The Madras High Court in K.R. Subbaier v. Regional Provided Fund Commissioner1 held
that any demand for a back period would not merely be illogical and oppressive, but also
inconsistent with the terms of the enactment which are manifestly prospective in their
operation.

The Calcutta High Court in Aluminum Corporation of India (Ltd.) v. Regional Provident
Fund Commissioner and Ors. 2 held that no retrospective operation could be granted to the
scheme and as such the Corporation could not be directed to pay the contribution for the
period from the date when the Act is sought to be applied.

On humanitarian grounds, the employer should not be made liable as he revived a sick unit
and at his initiative only the authorities took steps to cover it under provident fund scheme.

1
1963 I LLJ 23
2
AIR 1958 Cal 570
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BODY OF ARGUMENTS

I. THE ACTION OF THE RPFC IN REQUIRING THE PETITIONER TO PAY

CONTRIBUTION FOR THE PERIOD ANTERIOR TO IS ILLEGAL AND CONTRARY
TO STATUTORY PROVISIONS AND RPFC IS THEREFORE TO BE RESTRAINED
FROM ENFORCING SUCH PAYMENT.

The action of the RPFC in requiring the petitioner to pay contribution for the period anterior to is
illegal and contrary to statutory provisions and RPFC is therefore to be restrained from enforcing
such payment.

The Madras High Court in K.R. Subbaier v. Regional Provided Fund Commissioner3 held that
any demand for a back period would not merely be illogical and oppressive, but also inconsistent
with the terms of the enactment which are manifestly prospective in their operation.

The Calcutta High Court in Aluminium Corporation of India (Ltd.) v. Regional Provident Fund
Commissioner and Ors4. held that no retrospective operation could be granted to the scheme and
as such the Corporation could not be directed to pay the contribution for the period from the date
when the Act is sought to be applied. Therefore, any demand for a back period would be illogical
and oppressive. Para 30 and 32 of the Employees’ Provident Fund Scheme, 1952 states that-
30. Payment of contributions:

(1) The employer shall, in the first instance, pay both the contribution payable by himself (in this
Scheme referred to as the employer’s contribution) and also, on behalf of the member employed
by him directly or by or through a contractor, the contribution payable by such member (in this
Scheme referred to as the member’s contribution).

32. Recovery of a member’s share of contribution:

3
1963 I LLJ 23
4
AIR 1958 Cal 570

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(1) The amount of a member’s contribution paid by the employer [or a contractor] shall,
notwithstanding the provisions in this scheme or any law for the time being in force or any contract
to the contrary, be recoverable by means of deduction from the wages of the member and not
otherwise

Provided further that where no such deduction has been made on account of an accidental mistake
or a clerical error, such deduction may, with the consent in writing of the Inspector, be made from
the [subsequent] wages.

Para 32 confers upon the employer the right to recover the employees contribution that has been
paid by him under Para 30. That could be recovered by the employer by means of deduction
from the wage of the employees who are liable to pay Para 32 confers upon the employer the
right to recover the employees contribution that has been paid by him under Para 30. That could
be recovered by the employer by means of deduction from the wage of the employees who are
liable to pay. The liability under the Act is only to make payment after deduction of the
contribution towards provident fund from the wages of the employees and not otherwise.

In the case of The District Exhibitors Association, Muzaffarnagar and others V. Union of India
and others,5 the Hon’ble Supreme Court observed that for the period from 1st October, 1984 up
to the date of the impugned Notification the employer has paid the full wages to the employees
since during that period, there was no scheme applicable to his establishment. The Act and the
Scheme do not permit any payment or deduction by retrospectively applying the scheme. He
cannot be saddled with the liability to pay the employees' contribution for the retrospective
period, since he has no right to deduct the same from the future wages payable to the employees.
The payment of employees contribution by the employer with the corresponding right to deduct
the same from the wages of the employees could be only for the current period during which the
employer has also to pay his contribution.

Therefore the contribution to the Provident Fund is to be borne equally by the employer and the
employee and that the employer is to pay the whole of it, half on his account, and the other half on

5
AIR1991SC 1381
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account of the employee and he is to recoup himself by deducting it from the wages of the
employee. We declare that the appellants are not liable to pay the employees contribution for the
period from 1st October, 1984 to 30th April, 1986. 4

In the instant case also, the obligation of the notification to pay by the employer is very harsh and
unjust as the appellants are being asked to pay the contribution of the employees share to the
Provident Fund Account retrospectively without the corresponding right of employer to recover
it from the wages of employees.

The demands in question are arbitrary and unreasonable in violation of Article 14 of the
Constitution in view of the admitted position that the appellant had bona fide not deducted the
employees' contribution from the wages of the employees due to various uncertainties arising out
of litigation before the Courts.

On humanitarian grounds, the employer should not be made liable as he revived a sick unit and at
his initiative only the authorities took steps to cover it under provident fund scheme. So long as a
statutory authority has not initiated action under the provisions of the Act against the prior
employer and the undertaking remained undiscovered the petitioner cannot be saddled with the
liability to pay contribution for any period anterior.

Therefore, it is humbly prayed that the employer shall not be made liable for paying contribution
anterior to the period 30th March 1983.

4 The District Exhibitors Association, Muzaffarnagar and others Vs. Union of India and others AIR1991SC 1381

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PRAYER FOR RELIEF

Wherefore, in the light of facts of the case, issues raised, arguments advanced and authorities
Cited, this Hon’ble Supreme Court of India may be pleased to adjudge and declare:

1. The appeal should be allowed.

2. To set aside the proceedings of Regional Provident Fund Commissioner.
3. That the employer shall not be liable to pay the contribution for the period anterior to 30 th
March 1983.
And/or pass any other order in favor of the Petitioner that it may deem fit in the light of
justice, equity, and good conscience.

All of which is most humbly prayed.

Place: Kerala MUSKAN KHATRI

Date: 03.10.2019 (Counsel for the Petitioner)

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