EMPLOYEES'
PROVIDENT FUNDS & MISCELLANEOUS PROVISIONS ACT, 1952
[Act No. 9 of
Year 1952, dated 4th. March, 1952]
An Act
to provide for the institution of provident funds,
1[pension fund] and deposit linked insurance fund for
employees in factories and other establishment
Be it enacted
by Parliament as follows: -
1. Short title, extent and
application
2[(1) This Act may be called the Employees'
Provident Funds and Miscellaneous Provisions Act, 1952.]
(2) It extends
to the whole of India except the State of Jammu and Kashmir.
(3) Subject to
the provisions contained in section 16, it applies
(a) to every
establishment which is a factory engaged in any industry specified
in Schedule I and in which 4[twenty] or more persons are
employed, and
(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 of its intention so to do, by notification in the Official
Gazette, apply the provisions of this Act to any establishment
employing such number of persons less than [twenty] as may be
specified in the notification.]
(4)
Notwithstanding anything contained in sub-section (3) of this
section or sub-section (1) of section 16, where it appears to the
Central Provident Fund Commissioner, whether on an application made
to him in this behalf or otherwise, that the employer and the
majority of employees in relation to any establishment have agreed
that the provisions of this Act should be made applicable to the
establishment, he may, by notification in the Official Gazette,
apply the provisions of this Act to that establishment on and from
the date of such agreement or from any subsequent date specified in
such agreement.]
(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.]
2. Definitions
In this Act,
unless the context otherwise requires,
(a)
"appropriate government" means-
(i) in
relation to an establishment belonging to, or under the control of,
the Central Government or in relation to an establishment connected
with a railway company, a major port, a mine or an oilfield or a
controlled industry, or in relation to an establishment having
departments or branches in more than one State], the Central
Government; and
(ii) in
relation to any other establishment, the State Government;
(aa)
"authorised officer" means the Central Provident Fund Commissioner,
Additional Central Provident Fund Commissioner, Deputy Provident
Fund Commissioner, Regional Provident Fund Commissioner or such
other officer as may be authorised by the Central Government, by
notification in the Official Gazette];
(b) "basic
wages" means all emoluments which are earned by an employee while on
duty or on leave or on holidays with wages in either case] in
accordance with the terms of the contract of employment and which
are paid or payable in cash to him, but does not include:
(i) the cash
value of any food concession;
(ii) any
dearness allowance (that is to say, all cash payments by whatever
name called paid to an employee on account of a rise in the cost of
living), house-rent allowance, overtime allowance, bonus, commission
or any other similar allowance payable to the employee in respect of
his employment or of work done in such employment;
(iii) any
presents made by the employer;
(c)
"contribution" means a contribution payable in respect of a member
under a scheme [or the contribution payable in respect of an
employee to whom the Insurance Scheme applies] ;
(d)
"controlled industry" means any industry the control of which by the
Union has been declared by a Central Act to be expedient in the
public interest;
(e) "employer"
means:
(i) in
relation to an establishment which is a factory, the owner or
occupier of the factory, including the agent of such owner or
occupier, the legal representative of a deceased owner or occupier
and, where a person has been named as a manager of the factory under
clause (f) of sub-section (1) of section 7 of the Factories Act,
1948, the person so named; and
(ii) in
relation to any other establishment, the person who, or the
authority which, has the ultimate control over the affairs of the
establishment, and where the said affairs are entrusted to a
manager, managing director or managing agent, such manager, managing
director or managing agent];
(f) "employee"
means any person who is employed for wages in any kind of work,
manual or otherwise, in or in connection with the work of [an
establishment], and who gets his wages directly or indirectly from
the employer, [and includes any person
(i) employed
by or through a contractor in or in connection with the work of the
establishment;
(ii) engaged
as an apprentice, not being an apprentice engaged under the
Apprentices Act, 1961, or under the standing orders of the
establishment];
(ff)"exempted
employee" means an employee to whom a Scheme or the Insurance
Scheme, as the case may be,] would, but for the exemption granted
under section 17, have
applied;
(fff)
"exempted [establishment]" means [an establishment] in respect of
which an exemption has been granted under section 17 from the
operation of all [or any of the provisions of any Scheme or the
Insurance Scheme, as the case may be], whether such exemption has
been granted to the 16[establishment] as such or to any
person or class of persons employed therein];
(g) "factory"
means any premises, including the precincts thereof, in any part of
which a manufacturing process is being carried on or is ordinarily
so carried on, whether with the aid of power or without she aid of
power;
(gg) ***
(ggg) ***
]
(h) "Fund"
means the provident fund established under a Scheme;
(i) "industry"
means any industry specified in Schedule I, and includes any other
industry added to the Schedule by notification under section 4;
(ia)
"Insurance Fund" means the Deposit-linked Insurance Fund established
under sub-section (2) of section 6C;
(ib)
"Insurance Scheme" means the Employees' Deposit-linked Insurance
Scheme framed under sub-section (1) of section 6C];
(ic)]
"manufacture" or "manufacturing process" means any process for
making, altering, repairing, ornamenting, finishing, packing,
oiling, washing, cleaning, breaking up, demolishing, or otherwise
treating or adapting any article or substance with a view to its
use, sale, transport, delivery or disposal] ;
(j) "member"
means a member of the fund;
(k) "occupier
of a factory" means the person who has ultimate control over the
affairs of the factory, and, where the said affairs are entrusted to
a managing agent, such agent shall be deemed to be the occupier of
the factory;
(kA) "Pension
Fund" means the Employees' Pension Fund established under
sub-section (2) of section 6A;
(kB) "Pension
Scheme" means the Employees' Pension Scheme framed under sub-section
(1) of section 6A; ]
(ka)
"prescribed" means prescribed by rules made under this Act;
(kb) "Recovery
Officer" means any officer of the Central Government, State
Government or the Board of Trustees constituted under section 5A,
who may be authorised by the Central Government, by notification in
the Official Gazette, to exercise the powers of a Recovery Officer
under this Act] ;
(l) "scheme"
means the Employees' Provident Fund Scheme framed under section
5];
(ll)
"superannuation", in relation to an employee who is the member of
the Pension Scheme, means the attainment, by the said employee, of
the age of fifty-eight years".]
(m) "Tribunal"
means the Employees' Provident Funds Appellate Tribunal constituted
under section 7D].
2A. Establishment to include all
departments and branches
For the
removal of doubts, it is hereby declared that where an establishment
consists of different departments or has branches, whether situate
in the same place or in different places, all such departments or
branches shall be treated as parts of the same establishment.]
3. Power to apply the Act to an
establishment which has a common provident fund with another
establishment
Where immediately before this Act becomes applicable to an establishment there is in existence a provident fund which is common to the employees employed in that establishment and employees in any other establishment, the Central Government may, by notification in the Official Gazette, direct that the provisions of this Act shall also apply to such other establishment.]
AIR 1971 SUPREME COURT
2577
(V 58 C 555)
(From: BOMBAY)*
G.K. MITTER,
C.A. VAIDIALINGAM AND P. JAGANMOHAN REDDY, JJ.
Union of India
and another, Appellants v. Ogale Glass Works Ltd.
4. Power to add to Schedule I
(1) The
Central Government may, by notification in the Official Gazette, add
to Schedule I any other industry in respect of the employees whereof
it is of opinion that a provident fund scheme should be framed under
this Act, and thereupon the industry so added shall be deemed to be
an industry specified in Schedule I for the purposes of this
Act.
(2) All
notifications under sub-section (1) shall be laid before Parliament,
as soon as may be, after they are issued.
5. Employees Provident Funds
Scheme
(1)] The
Central Government may, by notification in the Official Gazette,
frame a Scheme to be called the Employees' Provident Funds Scheme
for the establishment of provident funds under this Act for
employees or for any class of employees and specify the
[establishments] or class of [establishments] to which the said
Scheme shall apply [and there shall be established, as soon as may
be after the framing of the Scheme, a Fund in accordance with the
provisions of this Act and the Scheme.]
(1A) The Fund
shall vest in, and be administered by, the Central Board constituted
under section 5A.
(1B) Subject
to the provisions of this Act, a Scheme framed under sub-section (1)
may provide for all or any of the matters specified in Sch. II.
]
[(2) A Scheme
framed under sub-section (1) may provide that any of its provisions
shall take effect either prospectively or retrospectively on such
date as may be specified in this behalf in the Scheme.
5A. Central Board
(1) The
Central Government may, be notification in the Official Gazette,
constitute, with effect from such date as may be specified therein,
a Board of Trustees for the territories to which this Act extends
(hereinafter in this Act referred to as the Central Board)
consisting of the following [persons as members], namely:
(a) a Chairman
and a Vice-Chairman] to be appointed by the Central Government;
(aa) the
Central Provident Fund Commissioner, ex officio];
(b) not more
than five persons appointed by the Central Government from amongst
its officials;
(c) not more
than fifteen persons representing Governments of such States as the
Central Government may specify in this behalf, appointed by the
central Government;
(d) [ten
persons] representing employers of the establishments to which the
Scheme applies, appointed by the Central Government after
consultation with such organizations of employers as may be
recognised by the Central Government in this behalf; and
(e) [ten
persons] representing employees in the establishments to which the
Scheme applies, appointed by the Central Government after
consultation with such organizations of employees as may be
recognised by the Central Government in this behalf.
(2) The terms
and conditions subject to which a member of the Central Board may be
appointed and the time, place and procedure of the meetings of the
Central Board shall be such as may be provided for in the
Scheme.
(3) The
Central Board shall, [subject to the provisions of section 6A] [and
section 6C], administer the fund vested in it in such manner as may
be specified in the Scheme.
(4) The
Central Board shall perform such other functions as it may be
required to perform by or under any provisions of the Scheme,
[Family Pension Scheme and the Insurance Scheme].
(5) The
Central Board shall maintain proper accounts of its income and
expenditure in such form and in such manner as the Central
Government may, after consultation with the Comptroller and
Auditor-General of India, specify in the Scheme.
(6) The
accounts of the Central Board shall be audited annually by the
Comptroller and Auditor-General of India and any expenditure
incurred by him in connection with such audit shall be payable by
the Central Board to the Comptroller and Auditor General of
India.
(7) The
Comptroller and Auditor-General of India and any person appointed by
him in connection with the audit of the accounts of the Central
Board shall have the same rights and privileges and authority in
connection with such audit as the Comptroller and Auditor-General
has, in connection with the audit of Government accounts and, in
particular, shall have the right to demand the production of books,
accounts, connected vouchers, documents and papers and inspect any
of the offices of the Central Board.
(8) The
accounts of the Central Board as certified by the Comptroller and
Auditor-General of India or any other person appointed by him in
this behalf together with the audit report thereon shall be
forwarded to the Central Board which shall forward the same to the
Central Government along with its comments on the report of the
Comptroller and Auditor-General.
(9) It shall
be the duty of the Central Board to submit also to the Central
Government an annual report of its work and activities and the
Central Government shall cause a copy of the annual report, the
audited accounts together with the report of the Comptroller and
Auditor-General of India and the comments of the Central Board
thereon to be laid before each House of Parliament.]
5AA. Executive
Committee
(1) The
Central Government may, by notification in the Official Gazette,
constitute, with effect from such date as may be specified therein,
an Executive Committee to assist the Central Board in the
performance of its functions.
(2) The
Executive Committee shall consist of the following persons as
members, namely :
(a) a Chairman
appointed by the Central Government from amongst the members of the
Central Board;
(b) two
persons appointed by the Central Government from amongst the persons
referred to in clause (b) of sub-section (1) of section 5A;
(c) three
persons appointed by the Central Government from amongst the persons
referred to in clause (c) of sub-section (1) of section 5A;
(d) three
persons representing the employers elected by the Central Board from
amongst the persons referred to in clause (d) of sub-section (1) of
section 5A;
(f) the
Central Provident Fund Commissioner, ex officio.
(3) The terms
and conditions subject to which a member of the Central Board may be
appointed or elected to the Executive Committee and the time, place
and procedure of the meetings of the Executive Committee shall be
such as may be provided for in the Scheme.]
5B. State Board
(1) The
Central Government may, after consultation with the Government of
any State, by notification in the Official Gazette, constitute for
that State a Board of Trustees (hereinafter in this Act referred to
as the State Board) in such manner as may be provided for in the
Scheme.
(2) A State
Board shall exercise such powers and perform such duties as the
Central Government may assign to it from time to time.
(3) The terms
and conditions subject to which a member of a State Board may be
appointed and the time, place and procedure of the meetings of a
State Board shall be such as may be provided for in the Scheme.]
5C. Board of Trustees to be body
corporate
Every Board of
Trustees constituted under section 5A or section 5B shall be a body
corporate under the name specified in the notification constituting
it, having perpetual succession and a common seal and shall by the
said name sue and be sued.
5D. Appointment of
officers
(1) The
Central Government shall appoint a Central Provident Fund
Commissioner who shall be the chief executive officer of the Central
Board and shall be subject to the general control and
superintendence of that Board.
(2) The
Central Government may also appoint 32[a Financial
Adviser and Chief Accounts Officer] to assist the Central Provident
Fund Commissioner in the discharge of his duties.
(3) The
Central Board may appoint, 26[subject to the maximum
scale of pay, as may be specified in the Scheme, as many Additional
Central Provident Fund Commissioners, Deputy Provident Fund
Commissioners, Regional Provident Fund Commissioners, Assistant
Provident Fund Commissioners and such other officers and employees
as it may consider necessary for the efficient administration of the
Scheme, the 33[Pension] Scheme and the Insurance
Scheme.
(4) No
appointment to 34[the post of the Central Provident Fund
Commissioner or a Financial Advisor and Chief Accounts Officer or
any other post under the Central Board carrying a scale of pay
equivalent to the scale of pay of any Group 'A' or Group 'B' post
under the Central Government] shall be made except after
consultation with the Union Public Service Commission:
PROVIDED that
no such consultation shall be necessary in regard to any such
appointment
(a) for a
period not exceeding one year, or
(b) if the
person to be appointed is at the time of his appointment
(i) a member
of the Indian Administrative Service, or
(ii) in the
service of the Central Government or a State Government or the
Central Board in a [Group 'A' or Group 'B' post.]
(5) A State
Board may, with the approval of the State Government concerned,
appoint such staff as it may consider necessary.
(6) The method
of recruitment, salary and allowances, discipline and other
conditions of service of the Central Provident Fund Commissioner,
36[and the Financial Adviser and Chief Accounts Officer]
shall be such as may be specified by the Central Government and such
salary and allowances shall be paid out of the Fund.
(7)(a) The
method of recruitment, salary and allowances, discipline and other
conditions of service of the Additional Central Provident Fund
Commissioner, Deputy Provident Fund Commissioner, Regional Provident
Fund Commissioner, Assistant Provident Fund Commissioner and other
officers and employees of the Central Board shall be such as may be
specified by the Central Board in accordance with the rules and
orders applicable to the officers and employees of the Central
Government drawing corresponding scales of pay:
PROVIDED that
where the Central Board is of the opinion that it is necessary to
make a departure from the said rules or orders in respect of any of
the matters aforesaid, it shall obtain the prior approval of the
Central Government.
(b) In
determining the corresponding scales of pay of officers and
employees under cl.(a), the Central Board shall have regard to the
educational qualifications, method of recruitment, duties and
responsibilities of such officers and employees under the Central
Government and in case of any doubt, the Central Board shall refer
the matter to the Central Government whose decision thereon shall be
final.]
(8) The method
of recruitment, salary and allowances, discipline and other
conditions of service37 of officers and employees of
State Board shall be such as may be specified by that Board, with
the approval of the State Government concerned.
5DD. Acts and proceedings of the
Central Board or its Executive Committee or the State Board not to
be invalidated on certain grounds
No act done or
proceeding taken by the Central Board or the Executive Committee
constituted under section 5AA or the State Board shall be questioned
on the ground merely of the existence of any vacancy in, or any
defect in the constitution of, the Central Board or the Executive
Committee or the State Board, as the case may be.]
5E. Delegation
The Central
Board may delegate to the Executive Committee or to the Chairman of
the Board or to any of its officers and a State Board may delegate
to its Chairman or to any of its officers] subject to such
conditions and limitations, if any, as it may specify, such of its
powers and functions under this Act as it may deem necessary for the
efficient administration of the Scheme, the 33[Pension
Scheme and the Insurance Scheme].]
6. Contributions and matters
which may be provided for in the Scheme
The
contribution which shall be paid by the employer to the Fund shall
be [ten per cent] of the basic wages, [dearness allowance and
retaining allowance (if any)], for the time being payable to each of
the employees [(whether employed by him directly or by or through a
contractor)] and the employees' contribution shall be equal to the
contribution payable by the employer in respect of him and may, [if
any employee so desires be an amount not exceeding [ten per cent] of
his basic wages, dearness allowance and retaining allowance (if
any), subject to the condition that the employer shall not be under
an obligation to pay any contribution over and above his
contribution payable under this section]:
[PROVIDED that
in its application to any establishment or class of establishments
which the Central Government, after making such inquiry as it deems
fit, may, by notification in the Official Gazette specify, this
section shall be subject to the modification that for the words [ten
per cent], at both the places where they occur, the words [twelve
per cent] shall be substituted]:
[PROVIDED
FURTHER that] where the amount of any contribution payable under
this Act involves a fraction of a rupee, the Scheme may provide for
the rounding off of such fraction to the nearest rupee, half of a
rupee or quarter of a rupee.
Explanation [11 : For the
purposes of this [section], dearness allowance shall be deemed to
include also the cash value of any food concession allowed to the
employee.
[Explanation 2 : For the
purposes of this [section], "retaining allowance" means an allowance
payable for the time being to an employee of any factory or other
establishment during any period in which the establishment is not
working, for retaining his services.]
[6A. Employees' Pension
Scheme
(1) The
Central Government may, by notification in the Official Gazette,
frame a scheme to be called the Employees' Pension Scheme for the
purpose of providing for:
(a)
superannuation pension, retiring pension or permanent total
disablement pension to the employees of any establishment or class
of establishments to which this Act applies; and
(b) widow or
widower's pension, children pension or orphan pension payable to the
beneficiaries of such employees.
(2)
Notwithstanding anything contained in section 6, there shall be
established, as soon as may be after framing of the Pension Scheme,
a Pension Fund into which there shall be paid, from time to time, in
respect of every employee who is a member of the Pension
Scheme:
(a) such sums
from the employer's contribution under section 6, not exceeding
eight and one-third per cent of the basic wages, dearness allowance
and retaining allowance, if any, of the concerned employees, as may
be specified in the Pension Scheme;
(b) such sums
as are payable by the employers of exempted establishments under
sub-section (6) of section 17;
(c) the net
assets of the Employees' Family Pension Fund as on the date of the
establishment of the Pension Fund;
(d) such sums
as the Central Government may, after due appropriation by Parliament
by law in this behalf, specify.
(3) On the
establishment of the Pension Fund, the Family Pension Scheme
(hereinafter referred to as the ceased scheme) shall cease to
operate and all assets of the ceased scheme shall vest in and shall
stand transferred to, and all liabilities under the ceased scheme
shall be enforceable against, the Pension Fund and the beneficiaries
under the ceased scheme shall be entitled to draw the benefits, not
less than the benefits, they were entitled to under the ceased
scheme, from the Pension Fund.
(4) The
Pension Fund shall vest in and be administered by the Central Board
in such manner as may be specified in the Pension Scheme.
(5) Subject to
the provisions of this Act, the Pension Scheme may provide for all
or any of the matters specified in Schedule III.
(6) The
Pension Scheme may provide that all or any of its provisions shall
take effect either prospectively or retrospectively on such date as
may be specified in that behalf in that Scheme.
(7) A Pension
Scheme, framed under sub-section (1) shall be laid, as soon as may
be after it is made, before each House of Parliament, while it is in
session, for a total period of thirty days which may be comprised in
one session or in two or more successive sessions, and if, before
the expiry of the session immediately following the session or the
successive sessions aforesaid, both Houses agree in making any
modification in the scheme or both Houses agree that the scheme
should not be made, the scheme shall thereafter have effect only in
such modified form or be of no effect, as the case may be; so,
however, that any such modification or annulment shall be without
prejudice to the validity of anything previously done under that
scheme.
6B. *** ]
6C. Employees' Deposit Linked
insurance Scheme
(1) The
Central Government may, by notification in the Official Gazette,
frame a Scheme to be called the Employees' Deposit-linked Insurance
Scheme for the purpose of providing life insurance benefits to the
employees of any establishment or class of establishments to which
this Act applies.
(2) There
shall be established, as soon as may be after the framing of the
Insurance Scheme, a Deposit-linked Insurance Fund into which shall
be paid by the employer from time to time in respect of every such
employee in relation to whom he is the employer, such amount, not
being more than one per cent of the aggregate of the basic wages,
dearness allowance and retaining allowance (if any) for the time
being payable in relation to such employee as the Central Government
may, by notification in the Official Gazette, specify.
Explanation: For the
purposes of this sub-section, the expressions "dearness allowance"
and "retaining allowance" have the same meanings as in section
6.
(3) ***]
(4)(a) The
employer shall pay in to the Insurance Fund such further sums of
money, not exceeding one-fourth of the contribution which he is
required to make under sub-section (2), as the Central Government
may, from time to time, determine to meet all the expenses in
connection with administration of the Insurance Scheme other than
the expenses towards the cost of any benefits provided by or under
that Scheme.
(b) ***]
(5) The
Insurance Fund shall vest in the Central Board and be administered
by it in such manner as may be specified in the Insurance
Scheme.
(6) The
Insurance Scheme may provide for all or any of the matters specified
in Schedule IV.
(7) The
Insurance Scheme may provide that any of its provisions shall take
effect either prospectively or retrospectively on such date as may
be specified in this behalf in that Scheme.]
6D. Laying of Schemes before
Parliament
Every Scheme
framed under section 5, section 6A and Section 6C shall be laid, as
soon as may be after it is framed, before each House of Parliament,
while it is in session, for a total period of thirty days which may
be comprised in one session or in two or more successive sessions,
and if, before the expiry of the session immediately following the
session or the successive sessions aforesaid, both Houses agree in
making any notification in the Scheme, or both Houses agree that the
scheme should not be framed, the Scheme shall thereafter have effect
only in such modified form or be of no effect, as the case may be;
so, however, that any such modification or annulment shall be
without prejudice to the validity of anything previously done under
the Scheme.]
7. Modification of
Scheme
(1) The
Central Government may, by notification in the Official Gazette, add
to, [amend or vary, either prospectively or retrospectively, the
Scheme, the [Pension] Scheme or the Insurance Scheme, as the case
may be.]
[(2) Every
notification issued under sub-section (1) shall be laid, as soon as
may be after it is issued, before each House of Parliament while it
is in session, for a total period of thirty days, which may be
comprised in one session or in two or more successive sessions, and
if, before the expiry of the session immediately following the
session or the successive sessions aforesaid, both Houses agree in
making any modification in the notification, or both houses agree
that the notification should not be issued, the notification shall
thereafter have effect only in such modified form or be of no
effect, as the case may be ; so however, that any such modification
or annulment shall be without prejudice to the validity of anything
previously done under that notification.]
7A. Determination of moneys due
from employers
(1) The
Central Provident Fund Commissioner, any Additional Central
Provident Fund Commissioner, any Deputy Provident Fund Commissioner,
any Regional Provident Fund Commissioner or any Assistant Provident
Fund Commissioner may, by order,
(a) in a case
where a dispute arises regarding the applicability of this Act to an
establishment, decide such dispute; and
(b) determine
the amount due from any employer under any provision of this Act,
the Scheme or the 33[Pension] Scheme or the Insurance
Scheme, as the case may be,
and for any of
the aforesaid purposes may conduct such inquiry as he may deem
necessary.]
(2) The
officer conducting the inquiry under sub-section (1) shall, for the
purposes of such inquiry, have the same powers as are vested in a
court under the Code of Civil Procedure, 1908, for trying a suit in
respect of the following matters, namely:
(a) enforcing
the attendance of any person or examining him on oath;
(b) requiring
the discovery and production of documents;
(c) receiving
evidence on affidavit;
(d) issuing
commissions for the examination of witnesses;
and any such
inquiry shall be deemed to be judicial proceeding within the meaning
of sections 193 and 228, and for the purpose of section 196 of the
Indian Penal Code.
(3) No
order shall be made
under sub-section (1), unless [the employer concerned] is given a
reasonable opportunity of representing his case.
(3A) Where the
employer, employee or any other person required to attend the
inquiry under sub-section (1) fails to attend such inquiry without
assigning any valid reason or fails to produce any document or to
file any report or return when called upon to do so, the officer
conducting the inquiry may decide the applicability of the Act or
determine the amount due from any employer, as the case may be, on
the basis of the evidence adduced during such enquiry and other
documents available on record.]
(4) Where an
order under sub-section (1) is passed against an employer ex parte,
he may, within three months from the date of communication of such
order, apply to the officer for setting aside such order and if he
satisfies the officer that the show cause notice was not duly served
or that he was prevented by any sufficient cause from appearing when
the inquiry was held, the officer shall make an order setting aside
his earlier order and shall appoint a date for proceeding with the
inquiry:
PROVIDED that
no such order shall be set aside merely on the ground that there has
been an irregularity in the service of the show cause notice if the
officer is satisfied that the employer had notice of the date of
hearing and had sufficient time to appear before the officer.
Explanation: Where an appeal
has been preferred under this Act against an order passed ex parte
and such appeal has been disposed of otherwise than on the ground
that the appellant has withdrawn the appeal, no application shall
lie under this sub-section for setting aside the ex-pert order.
(5) No order
passed under this section shall be set aside on any application
under sub-section (4) unless notice thereof has been served on the
opposite party.]
7B. Review of orders passed under
section 7A
(1) Any person
aggrieved by an order made under sub-section (1) of section 7A, but
from which no appeal has been preferred under this Act, and who,
from the discovery of new and important matter or evidence which,
after the exercise of due diligence was not within his knowledge or
could not be produced by him at the time when the order was made, or
on account of some mistake or error apparent on the face of the
record or for any other sufficient reason, desires to obtain for a
review of such order may apply for a review of that order to the
officer who passed the order:
PROVIDED that
such officer may also on his own motion review his order if he is
satisfied that it is necessary so to do on any such ground.
(2) Every
application for review under sub-section (1) shall be filed in such
form and manner and within such time as may be specified in the
Scheme.
(3) Where it
appears to the officer receiving an application for review that
there is no sufficient ground for review, he shall reject the
application.
(4) Where the
officer is of the opinion that the application for review should be
granted, he shall grant the same:
PROVIDED that,
(a) no such
application shall be granted without previous notice to all the
parties before him to enable them to appear and be heard in support
of the order in respect of which a review is applied for, and
(b) no such
application shall be granted on the ground of discovery of new
matter or evidence which the applicant alleges was not within his
knowledge or could not be produced by him when the order was made,
without proof of such allegation.
(5) No appeal
shall lie against the order of the officer rejecting an application
for review, but an appeal under this Act shall lie against an order
passed under review as if the order passed under review were the
original order passed by him under section 7A.
7C. Determination of escaped
amount
Where an order
determining the amount due from an employer under section 7A or
section 7B has been passed and if the officer who passed the
order
(a) has reason
to believe that by reason of the omission or failure on the part of
the employer to make any document or report available, or to
disclose, fully and truly, all material facts necessary for
determining the correct amount due from the employer, any amount so
due from such employer for any period has escaped his notice;
(b) has, in
consequence of information in his possession, reason to believe that
any amount to be determined under section 7A or section 7B has
escaped from his determination for any period notwithstanding that
there has been no omission or failure as mentioned in cl. (a) on the
part of the employer,
he may, within
a period of five years from the date of communication of the order
passed under section 7A or section 7B, re-open the case and pass
appropriate orders re-determining the amount due from the employer
in accordance with the provisions of this Act:
PROVIDED that
no order re-determining the amount due from the employer shall be
passed under this section unless the employer is given a reasonable
opportunity of representing his case.
7D. Employees' Provident Funds
Appellate Tribunal
(1) The
Central Government may, by notification in the Official Gazette,
constitute one or more Appellate Tribunals to be known as the
Employees' Provident Funds Appellate Tribunal to exercise the powers
and discharge the functions conferred on such Tribunal by this Act
and every such Tribunal shall have jurisdiction in respect of
establishments situated in such area as may be specified in the
notification constituting the Tribunal.
(2) A Tribunal
shall consist of one person only to be appointed by the Central
Government.
(3) A person
shall not be qualified for appointment as a Presiding Officer of a
Tribunal (hereinafter referred to as the Presiding Officer) unless
he is or has been, or is qualified to be-
(i) a Judge of
a High Court; or
(ii) a
District Judge.]
7E. Term of office
The Presiding
Officer of a Tribunal shall hold office for a term of five years
from the date on which he enters upon his office or until he attains
the age of sixty-two years, whichever is earlier.
7F. Resignation
(1) The
Presiding Officer may, by notice in writing under his hand addressed
to the Central Government, resign his office:
PROVIDED that
the Presiding Officer shall, unless he is permitted by the Central
Government to relinquish his office sooner, continue to hold office
until the expiry of three months from the date of receipt of such
notice or until a person duly appointed as his successor enters upon
his office or until the expiry of his term of office, whichever is
the earliest.
(2) The
Presiding Officer shall not be removed from his office except by an
order made by the President on the ground of proved misbehaviour or
incapacity after an inquiry made by a Judge of the High Court in
which such Presiding Officer had been informed of the charges
against him and given a reasonable opportunity of being heard in
respect of those charges.
(3) The
Central Government may, by rules, regulate the procedure for the
investigation of misbehaviour or incapacity of the Presiding
Officer.]
7G. Salary and allowances and
other terms and conditions of service of Presiding
Officer
The salary and
allowances payable to, and the other terms and conditions of service
(including pension, gratuity and other retirement benefits) of, the
Presiding Officer shall be such as may be prescribed:
PROVIDED that
neither the salary and allowances nor the other terms and conditions
of service of the Presiding Officer shall be varied to his
disadvantage after his appointment.
7H. Staff of Tribunal
(1) The
Central Government shall determine the nature and categories of the
officers and other employees required to assist a Tribunal in the
discharge of its functions and provide the Tribunal with such
officers and other employees as it may think fit.
(2) The
officers and other employees of a Tribunal shall discharge their
functions under the general superintendence of the Presiding
Officer.
(3) The
salaries and allowances and other conditions of service of the
officers and other employees of a Tribunal shall be such as may be
prescribed.
7-I. Appeals to
Tribunal
(1) Any person
aggrieved by a notification issued by the Central Government, or an
order passed by the Central Government or any authority, under the
proviso to sub-section (3), or sub-section (4), of section 1, or
section 3, or sub-section (1) of section 7A, or section 7B [except
an order rejecting an application for review referred to in
sub-section (5) thereof], or section 7C, or section 14B, may prefer
an appeal to a Tribunal against such notification or order.
(2) Every
appeal under sub-section (1) shall be filed in such form and manner,
within such time and be accompanied by such fees, as may be
prescribed.
7J. Procedure of
Tribunal
(1) A Tribunal
shall have power to regulate its own procedure in all matters
arising out of the exercise of its powers or of the discharge of its
functions including the places at which the Tribunal shall have its
sittings.
(2) A Tribunal
shall, for the purpose of discharging its functions, have all the
powers which are vested in the officers referred to in section 7A
and any proceeding before the Tribunal shall be deemed to be a
judicial proceeding within the meaning of sections 193 and 228, and
for the purpose of section 196 of the Indian Penal Code, 1860 (45 of
1860), and the Tribunal shall be deemed to be a Civil Court for all
the purposes of section 195 and Chapter XXVI of the Code of Criminal
Procedure, 1973 (2 of 1974).
7K. Right of appellant to take
assistance of legal practitioner and of government, etc. to appoint
presenting officers
(1) A person
preferring an appeal to a Tribunal under this Act may either appear
in person or take the assistance of a legal practitioner of his
choice to present his case before the Tribunal.
(2) The
Central Government or a State Government or any other authority
under this Act may authorise one or more legal practitioners or any
of its officers to act as presenting officers and every person so
authorised may present the case with respect to any appeal before a
Tribunal.
7L. Orders of
Tribunal
(1) A Tribunal
may, after giving the parties to the appeal an opportunity of being
heard, pass such orders thereon as it thinks fit, confirming,
modifying or annulling the order appealed against or may refer the
case back to the authority which passed such order with such
directions as the Tribunal may think fit, for a fresh adjudication
or order, as the case may be, after taking additional evidence, if
necessary.
(2) A Tribunal
may, at any time within five years from the date of its order, with
a view to rectifying any mistake apparent from the record, amend any
order passed by it under sub-section (1) and shall make such
amendment in the order if the mistake is brought to its notice by
the parties to the appeal:
PROVIDED that
an amendment which has the effect of enhancing the amount due from,
or otherwise increasing the liability of, the employer shall not be
made under this sub-section, unless the Tribunal has given notice to
him of its intention to do so and has allowed him a reasonable
opportunity of being heard.
(3) A Tribunal
shall send a copy of every order passed under this section to the
parties to the appeal.
(4) Any order
may by a Tribunal finally disposing of an appeal shall not be
questioned in any Court of law.
7M. Filling up of
vacancies
If, for any
reason, a vacancy occurs in the office of the Presiding Officer, the
Central Government shall appoint another person in accordance with
the provisions of this Act, to fill the vacancy and the proceedings
may be continued before a Tribunal from the stage at which the
vacancy is filled.
7N. Finality of orders
constituting a Tribunal
No order of
the Central Government appointing any person as the Presiding
Officer shall be called in question in any manner, and no act or
proceeding before a Tribunal shall be called in question in any
manner on the ground merely of any defect in the constitution of
such Tribunal.
7-O. Deposit of amount due, on
filing appeal
No appeal by
the employer shall be entertained by a Tribunal unless he has
deposited with it seventy-five per cent of the amount due from him
as determined by an officer referred to in section 7A :
PROVIDED that
the Tribunal may, for reasons to be recorded in writing, waive or
reduce the amount to be deposited under this section.
7P. Transfer of certain
applications to Tribunal
All
applications which are pending before the Central Government under
section 19A before its repeal, shall stand transferred to a Tribunal
exercising jurisdiction in respect of establishments in relation to
which such applications had been made as if such applications were
appeals preferred to the Tribunal.
7Q. Interest payable by the
employer
The employer
shall be liable to pay simple interest at the rate of twelve per
cent per annum or at such higher rate as may be specified in the
Scheme on any amount due from him under this Act from the date on
which the amount has become so due till the date of its actual
payment:
PROVIDED that
higher rate of interest specified in the Scheme shall not exceed the
lending rate of interest charged by any scheduled bank.]
8. Mode of recovery of moneys due
from employers
Any amount
due:
(a) from the
employer in relation to [an establishment] to which any [Scheme or
the Insurance Scheme] applies in respect of any contribution payable
to [the Fund or, as the case may be, the Insurance Fund], damages
recoverable under section 14B, accumulations required to be
transferred under sub-section (2) of section 15 [or under
sub-section (5) of section 17] or any charges payable by him under
any other provision of this Act or of any provision of the [Scheme
or the Insurance Scheme] ; or
(b) from the
employer in relation to an exempted [establishment] in respect of
any damages recoverable under section 14B or any charges payable by
him to the appropriate Government under any provision of this Actor
under any of the conditions specified 60[under section 17
or in respect of the contribution payable by him towards the
[Pension] [Scheme or the Insurance Scheme] under the said section
17],
may, if the
amount is in arrears, [be recovered [in the manner specified in
sections 8B to 8G.]
(1) [The
amount of contribution (that is to say, the employer's contribution
as well as the employee's contribution in pursuance of any Scheme
and the employer's contribution in pursuance of the Insurance
Scheme)]; and any charges
for meeting the cost of administering the Fund paid or
payable by an employer in respect of an employee employed by or
through a contractor may be recovered by such employer from the
contractor, either by deduction from any amount payable to the
contractor under any contract or as a debt payable by the
contractor.
(2) A
contractor from whom the amounts mentioned in sub-section (1) may be
recovered in respect of any employee employed by or through him, may
recover from such employee the employee's contribution [under any
Scheme] by deduction from the basic wages, dearness allowance and
retaining allowance (if any) payable to such employee.
(3)
Notwithstanding any contract to the contrary, no contractor shall be
entitled to deduct the employer's contribution or the charges
referred to in sub-section (1) from the basic wages, dearness
allowance, and retaining allowance (if any) payable to an employee
employed by or through him or otherwise to recover such contribution
or charges from such employee.
Explanation: In this
section, the expression "dearness allowance" and "retaining
allowance" shall have the same meanings as in section 6.]
8B. Issue of certificate to the
Recovery Officer
(1) Where any
amount is in arrears under section 8, the authorised officer may
issue, to the Recovery Officer, a certificate under his signature
specifying the amount of arrears and the Recovery Officer, on
receipt of such certificate, shall proceed to recover the amount
specified therein from the establishment or, as the case may be, the
employer by one or more of the modes mentioned below:
(a) attachment
and sale of the movable or immovable property of the establishment
or, as the case may be, the employer;
(b) arrest of
the employer and his detention in prison;
(c) appointing
a receiver for the management of the movable or immovable properties
of the establishment or, as the case may be, the employer:
PROVIDED that
the attachment and sale of any property under this section shall
first be effected against the properties of the establishment and
where such attachment and sale is insufficient for recovering the
whole of the amount of arrears specified in the certificate, the
Recovery Officer may take such proceedings against the property of
the employer for recovery of the whole or any part of such
arrears.
(2) The
authorised officer may issue a certificate under sub-section (1),
not withstanding that proceedings for recovery of the arrears by any
other mode have been taken.
8C. Recovery Officer to whom
certificate is to be forwarded
(1) The
authorised officer may forward the certificate referred to in
section 8B to the Recovery Officer within whose jurisdiction the
employer
(a) carries on
his business or profession or within whose jurisdiction the
principal place of his establishment is situate; or
(b) resides or
any movable or immovable property of the establishment or the
employer is situate.
(2) Where an
establishment or the employer has property within the jurisdiction
of more than one Recovery Officers and the Recovery Officer to whom
a certificate is sent by the authorised officer
(a) is not
able to recover to the entire amount by the sale of the property,
movable or immovable, within his jurisdiction; or
(b) is of the
opinion that, for the purpose of expediting or securing the recovery
of the whole or any part of the amount, it is necessary so to do,
he may send
the certificate or, where only a part of the amount is to be
recovered, a copy of the certificate certified in the prescribed
manner and specifying the amount to be recovered to the Recovery
Officer within whose jurisdiction the establishment or the employer
has property or the employer resides, and thereupon that Recovery
Officer shall also proceed to recover the amount due under this
section as if the certificate or the copy thereof had been the
certificate sent to him by the authorised officer.
8D. Validity of certificate and
amendment thereof
(1) When the
authorised officer issues a certificate to Recovery Officer under
section 8B, it shall not be open to the employer to dispute before
the Recovery Officer the correctness of the amount, and no objection
to the certificate on any other ground shall also be entertained by
the Recovery Officer.
(2)
Notwithstanding the issue of a certificate to a Recovery Officer,
the authorised officer shall have power to withdraw the certificate
or correct any clerical or arithmetical mistake in the certificate
by sending an intimation to the Recovery Officer.
(3) The
authorised officer shall intimate to the Recovery Officer any order
withdrawing or cancelling a certificate or any correction made by
him under sub-section (2) or any amendment made under sub-section
(4) of section 8E.
8E. Stay of proceedings under
certificate and amendment or withdrawal thereof
(1)
Notwithstanding that a certificate has been issued to the Recovery
Officer for the recovery of any amount, the authorised officer may
grant time for the payment of the amount, and thereupon the Recovery
Officer shall stay the proceedings until the expiry of the time so
granted.
(2) Where a
certificate for the recovery of amount has been issued, the
authorised officer shall keep the Recovery Officer informed of any
amount paid or time granted for payment, subsequent to the issue of
such certificate.
(3) Where the
order giving rise to a demand of amount for which a certificate for
recovery has been issued has been modified in appeal or other
proceeding under this Act, and, as a consequence thereof, the demand
is reduced but the order is the subject-matter of a further
proceeding under this Act, the authorised officer shall stay the
recovery of such part of the amount of the certificate as pertains
to the said reduction for the period for which the appeal or other
proceeding remains pending.
(4) Where a
certificate for the recovery of amount has been issued and
subsequently the amount of the outstanding demand is reduced as a
result of an appeal or other proceeding under this Act, the
authorised officer shall, when the order which was the
subject-matter of such appeal or other proceeding has become final
and conclusive, amend the certificate or withdraw it, as the case
may be.
8F. Other modes of
recovery
(1)
Notwithstanding the issue of a certificate to the Recovery Officer
under section 8B, the Central Provident Fund Commissioner or any
other officer authorised by the Central Board may recover the amount
by any one or more of the modes provided in this section.
(2) If any
amount is due from any person to any employer who is in arrears, the
Central Provident Fund Commissioner or any other officer authorised
by the Central Board in this behalf may require such person to
deduct from the said amount the arrears due from such employer under
this Act, and such person shall comply with any such requisition and
shall pay the sum so deducted to the credit of the Central Provident
Fund Commissioner or the officer so authorised, as the case may
be:
PROVIDED that
nothing in this sub-section shall apply to any part of the amount
exempt from attachment in execution of a decree of a civil court
under section 60 of the Code of Civil Procedure, 1908.
(3) (i) The
Central Provident Fund Commissioner or any other officer authorised
by the Central Board in this behalf may, at any time or from time to
time, by notice in writing, require any person from whom money is
due or may become due to the employer or, as the case may be, the
establishment or any person who holds or may subsequently hold money
for or on account of the employer or as the case may be, the
establishment, to pay to the Central Provident Fund Commissioner
either forthwith upon the money becoming due or being held or at or
within the time specified in the notice (not being before the money
becomes due or is held) so much of the money as is sufficient to pay
the amount due from the employer in respect of arrears or the whole
of the money when it is equal to or less than that amount.
(ii) A notice
under this sub-section may be issued to any person who holds or may
subsequently hold any money for or on account of the employer
jointly with any other person and for the purposes of this
sub-section, the shares of the joint-holders in such account shall
be presumed, until the contrary is proved, to be equal.
(iii) A copy
of the notice shall be forwarded to the employer at his last address
known to the Central Provident Fund Commissioner or, as the case may
be, the officer so authorised and in the case of a joint account to
all the joint-holders at their last addresses known to the Central
Provident Fund Commissioner or the officer so authorised.
(iv) Save as
otherwise provided in this sub-section, every person to whom a
notice is issued under this sub-section shall be bound to comply
with such notice, and, in particular, where any such notice is
issued to a post office, bank or an insurer, it shall not be
necessary for any pass book, deposit receipt, policy or any other
document to be produced for the purpose of any entry, endorsement or
the like being made before payment is made notwithstanding any rule,
practice or requirement to the contrary.
(v) Any claim
respecting any property in relation to which a notice under this
sub-section has been issued arising after the date of the notice
shall be void as against any demand contained in the notice.
(vi) Where a
person to whom a notice under this sub-section is sent objects to it
by a statement on oath that the sum demanded or any part thereof is
not due to the employer or that he does not hold any money for or on
account of the employer, then, nothing contained in this sub-section
shall be deemed to require such person to pay any such sum or part
thereof, as the case may be, but if it is discovered that such
statement was false in any material particular, such person shall be
personally liable to the Central Provident Fund Commissioner or the
officer so authorised to the extent of his own liability to the
employer on the date of the notice, or to the extent of the
employer's liability for any sum due under this Act, whichever is
less.
(vii) The
Central Provident Fund Commissioner or the officer so authorised
may, at any time or from time to time, amend or revoke any notice
issued under this sub-section or extend the time for making any
payment in pursuance of such notice.
(viii) The
Central Provident Fund Commissioner or the officer so authorised
shall grant a receipt for any amount paid in compliance with a
notice issued under this sub-section, and the person so paying shall
be fully discharged from his liability to the employer to the extent
of the amount so paid.
(ix) Any
person discharging any liability to the employer after the receipt
of a notice under this sub-section shall be personally liable to the
Central Provident Fund Commissioner or the officer so authorised to
the extent of his own liability to the employer so discharged or to
the extent of the employer's liability for any sum due under this
Act, whichever is less.
(x) If the
person to whom a notice under this sub-section is sent fails to make
payment in pursuance thereof to the Central Provident Fund
Commissioner or the officer so authorised he shall be deemed to be
an employer in default in respect of the amount specified in the
notice and further proceedings may be taken against him for the
realisation of the amount as if it were an arrear due from him, in
the manner provided in sections 8B to 8E and the notice shall have
the same effect as an attachment of a debt by the Recovery Officer
in exercise of his powers under section 8B.
(4) The
Central Provident Fund Commissioner or the officer authorised by the
Central Board in this behalf may apply to the court in whose custody
there is money belonging to the employer for payment to him of the
entire amount of such money, or if it is more than the amount due,
an amount sufficient to discharge the amount due.
(5) The
Central Provident Fund Commissioner or any officer not below the
rank of Assistant Provident Fund Commissioner may, if so authorised
by the Central Government by general or special order, recover any
arrears of amount due from an employer or, as the case may be, from
the establishment by distraint and sale of his or its movable
property in the manner laid down in the Third Schedule to the Income
Tax Act, 1961 (43 of 1961).
8G. Application of certain
provisions of Income Tax Act
The provisions
of the Second and Third Schedules to the Income Tax Act, 1961 (43 of
1961), and the Income Tax (Certificate Proceedings) Rules, 1962, as
in force from time to time, shall apply with necessary modifications
as if the said provisions and the rules referred to the arrears of
the amount mentioned in section 8 of this Act instead of to the
Income Tax:
PROVIDED that
any reference in the said provisions and the rules to the "assessee"
shall be construed as a reference to an employer as defined in this
Act.
9. Fund to be recognised under
Act 11 of 1922
For the
purposes of the Indian Income Tax Act, 1922, the Fund shall be
deemed to be a recognised provident fund within the meaning of
Chapter IX-A of that Act:
[PROVIDED that
nothing contained in the said Chapter shall operate to render
ineffective any provision of the Scheme (under which the Fund is
established) which is repugnant to any of the provisions of that
Chapter or of the rules made thereunder.]]
10. Protection against
attachment
(1) The amount
standing to the credit of any member in the Fund [or of any exempted
employee in a provident fund] shall not in any way be capable of
being assigned or charged and shall not be liable to attachment
under any decree or order of any Court in respect of any debt or
liability incurred by the member [or the exempted employee], and
neither the official assignee appointed under the Presidency Towns
Insolvency Act, 1909, nor any receiver appointed under the
Provincial Insolvency Act, 1920, shall be entitled to, or have any
claim on, any such amount.
(2) Any amount
standing to the credit of a member in the Fund or of an exempted
employee in a provident fund at the time of his death and payable to
his nominee under the Scheme or the rules of the Provident Fund
shall, subject to any deduction authorised by the said Scheme or
rules, vest in the nominee and shall be free from any debt or other
liability incurred by the deceased or the nominee before the death
of the member or of the exempted employee [and shall also not be
liable to attachment under any decree or order of any Court.]
(3) The
provisions of sub-section (1) and sub-section (2) shall, so far as
may be, apply in relation to the family pension or any other amount
payable under the 33[Pension] Scheme 11[and
also in relation to any amount payable under the Insurance Scheme]
as they apply in relation to any amount payable out of the
Fund.]
11. Priority of payment of
contributions over other debts
(1) Where any
employer is adjudicated in solvent or, being a company, an order for
winding up is made, the amount due
(a) from the
employer in relation to [an establishment] to which any [Scheme or
the insurance Scheme] applies in respect of any contribution payable
to the Fund [or, as the case may be, the Insurance Fund], damages
recoverable under section 14B, accumulations required to be
transferred under sub-section (2) of section 15 or any charges
payable by him under any other provision of this Act or of any
provision of the [Scheme or the Insurance Scheme]; or
(b) from the
employer in relation to an exempted [establishment] in respect of
any contribution to the provident fund or any insurance fund] (in so
far as it relates to exempted employees), under the rules of [the
provident fund or any insurance fund] [any contribution payable by
him towards the [Pension] Fund under sub-section (6) of section 17,]
damages recoverable under section 14B or any charges payable by him
to the appropriate Government under any provision of this Act under
any of the conditions specified under section 17, shall where the
liability therefor has accrued before the order of adjudication or
winding up is made, be deemed to be included] among the debts which
under section 49 of the Presidency Towns Insolvency Act, 1909, or
under section 61 of the Provincial Insolvency Act, 1920, or under
[section 530 of the Companies Act, 1956], are to be paid in priority
to all other debts in the distribution of the property of the
insolvent or the assets of the company being wound up, as the case
may be.
[Explanation: In this
sub-section and in section 17, "insurance fund" means any fund
established by an employer under any Scheme for providing benefits
in the nature of life insurance to employees, whether linked to
their deposits in provident fund or not, without payment by the
employees of any separate contribution or premium in that
behalf.]
[(2) Without
prejudice to the provisions of sub-section (1), if any amount is due
from an employer, [whether in respect of the employee's contribution
(deducted from the wages of the employee) or the employer's
contribution], the amount so due shall be deemed to be the first
charge on the assets of the establishment, and shall,
notwithstanding anything contained in any other law for the time
being in force, be paid in priority to all other debts.]
12. Employer not to reduce wages,
etc.
No employer in
relation to [an establishment] to which any [Scheme or the Insurance
Scheme] applies shall, by reason only of his liability for the
payment of any contribution to [the Fund or the Insurance Fund] or
any charges under this Act or the [Scheme or the Insurance Scheme],
reduce, whether directly or indirectly, the wages of any employee to
whom the [Scheme or the Insurance Scheme] applies or the total
quantum of benefits in the nature of old age pension, gratuity
74[provident fund or life insurance] to which the
employee is entitled under the terms of his employment, express or
implied.]
13. Inspectors
(1) The
appropriate government may, by notification in the Official Gazette,
appoint such persons as it thinks fit to be Inspectors for the
purposes of this Act [, the Scheme [, the [Pension ] Scheme or the
Insurance Scheme]], and may define their jurisdiction.
(2) Any
Inspector appointed under sub-section (1) may, for the purpose of
inquiring into the correctness of any information furnished in
connection with this Act or with any [Scheme or the Insurance
Scheme] or for the purpose of ascertaining whether any of the
provisions of this Act or of any [Scheme or the Insurance Scheme]
have been complied with [ in respect of [an establishment] to which
any [Scheme or the Insurance Scheme] applies or for the purpose of
ascertaining whether the provisions of this Act or any [Scheme or
the Insurance Scheme] are applicable to any [establishment] to which
the [Scheme or the Insurance Scheme] has not been applied or for the
purpose of determining whether the conditions subject to which
exemption was granted under section 17 are being complied with by
the employer in relation to an exempted
[establishment].
(a) require an
employer [or any contractor from whom any amount is recoverable
under section 8A] to furnish such information as he may consider
necessary;
(b) at any
reasonable time [and with such assistance, if any, as he may think
fit, enter and search] any [establishment], or any premises
connected therewith and require any one found in charge thereof to
produce before him for examination any accounts, books, registers
and other documents relating to the employment of persons or the
payment of wages in the [establishment];
(c) examine,
with respect to any matter relevant to any of the purposes
aforesaid, the employer [or any contractor from whom any amount is
recoverable under sections 8A], his agent or servant or any other
person found in charge of the [establishment], or any premises
connected there with or whom the Inspector has reasonable cause to
believe to be or to have been, an employee in the
[establishment];
(d) makes
copies of, or take extracts from, any book, register or other
document maintained in relation to the establishment and, where he
has reason to believe that any offence under this Act has been
committed by an employer, seize with such assistance as he may think
fit, such book, register or other document or portions thereof as he
may consider relevant in respect of that offence;]
(e) exercise
such other powers as the [Scheme or the Insurance Scheme] may
provide.
(2A) Any
Inspector appointed under sub-section (1) may, for the purpose of
inquiring into the correctness of any information furnished in
connection with the [Pension] Scheme or for the purpose of
ascertaining whether any of the provisions of this Act or of the
[Pension] Scheme have been complied with in respect of an
establishments to which the [Pension] Scheme applies, exercise all
or any of the powers conferred on him under clause (a), (b), (c) or
(d) of sub-s. (2).]
(2B) The
provisions of the [Code of Criminal Procedure, 1898], shall, so far
as may be, apply to any search or seizure under sub-section (2) [or
under sub-section (2A), as the case may be,] as they apply to any
search and seizure made under the authority of a warrant issued
under [section 98] of the said Code.
14. Penalties
(1) Whoever,
for the purpose of avoiding any payment to be made by himself under
this Act [the Scheme, ,the [Pension] Scheme] or the Insurance
Scheme] or of enabling any other person to avoid such payment
knowingly makes or causes to be made any false statement or false
representation shall be punishable with imprisonment for a term
which may extend to one year, or with fine of five thousand rupees,
or with both].
(1A) An
employer who contravenes, or makes default in complying with, the
provisions of section 6 or clause (a) of sub-section (3) of section
17 in so far as it relates to the payment of inspection charges, or
para 38 of the Scheme insofar as it relates to the payment of
administrative charges, shall be punishable with imprisonment for a
term which may extend to [three years] but
(a) which
shall not be less than [one year and fine of ten thousand rupees] in
case of default in payment of employees' contribution which has been
deducted by the employer from the employees' wages;
(b) which
shall not be less than six months and fine of five thousand rupees,
in any other case:]
PROVIDED that
the court may, for any adequate and special reasons to be recorded
in the judgement, impose a sentence of imprisonment for a lesser
term
(1B) An
employer who contravenes, or makes default in complying with, the
provisions of section 6C, or clause (a) of sub-section (3A) of
section 17 in so far as it relates to payment of inspection charges,
shall be punishable with imprisonment for a term which may extend
to [one year] but which shall not be less than [Six
months] and shall also be liable to fine which may extend to [five
thousand rupees]:
PROVIDED that
the court may, for any adequate and special reasons to be recorded
in the judgement, impose a sentence of imprisonment for a lesser
term ]
(2) [Subject
to the provisions of the Act, the Scheme,] the Pension Scheme or the
Insurance Scheme] may provide that any person who contravenes, or
makes default in complying with any of the provisions thereof shall
be punishable with imprisonment for a term which may extend to [one
year, or with fine which may extend to four thousand rupees, or with
both].]
[(2A) Whoever
contravenes or makes default in complying with any provision of this
Act or of any condition subject to which exemption was granted under
section 17 shall, if no other penalty is elsewhere provided by or
under this Act for such contravention or non-compliance, be
punishable with imprisonment which may extend to 146[six
months, but which shall not be less than one month, and shall also
be liable to fine which may extend to five thousand rupees].]
14A. Offences by
companies
(1) If the
person committing offence under this Act, the Scheme , the [Pension]
Scheme or the Insurance Scheme] is a company, every person, who at
the time the offence was committed was in charge of, and was
responsible to, the company for the conduct of the business of the
company, as well as the company, shall be deemed to be guilty of the
offence and shall be liable to be proceeded against and punished
accordingly:
PROVIDED that
nothing contained in this sub-section shall render any such person
liable to any punishment, if he proves that the offence was
committed without his knowledge or that he exercised all due
diligence to prevent the commission of such offence.
(2)
Notwithstanding anything contained in sub-section (1), where an
offence under this Act , the Scheme, the [Pension] Scheme or the
Insurance Scheme]] has been committed by a company and it is proved
that the offence has been committed with the consent or connivance
of, or is attributable to, any neglect on the part of, any director
or manager, secretary or other officer of the company, such
director, manager, secretary or other officer shall be deemed to be
guilty of that offence and shall be liable to be proceeded against
and punished accordingly.
Explanation: For the
purposes of this section
(i) "company"
means any body corporate and includes a firm and other association
of individuals; and
(ii)
"director", in relation to a firm, means a partner in the
firm.]
14AA. Enhanced punishment in
certain cases after previous conviction
Whoever,
having been convicted by a court of an offence punishable under this
Act, the Scheme, , the [Pension] Scheme or the Insurance Scheme],
commits the same offence shall be subject for every such subsequent
offence to imprisonment for a term which may extend to five years,
but which shall not be less than two years, and shall also be liable
to a fine of twenty-five thousand rupees.]
14AB. Certain offences to be
cognizable
(1)
Notwithstanding anything contained in [Code of Criminal Procedure,
1898 (5 of 1898)], an offence relating to default in payment of
contribution by the employer punishable under this Act shall be
cognizable.
14AC. Cognizance and trial of
offences
(1) No court
shall take cognizance of any offence punishable under this Act, the
Scheme or, the [Pension] Scheme or the Insurance Scheme], except on
a report in writing of the facts constituting such offence made with
the previous sanction of the Central Provident Fund Commissioner or
such other officer as may be authorised by the Central Government,
by notification in the Official Gazette, in this behalf, by an
inspector appointed under section 13.
(2) No court
inferior to that of a Presidency Magistrate or a Magistrate of the
first class shall try any offence under this Act or the Scheme or ,
the [Pension] Scheme or the Insurance Scheme.]
14B. Power to recover
damages
Where an
employer makes default in the payment of any contribution to the
Fund [, the [Pension] Fund or the Insurance Fund] or in the transfer
of accumulations required to be transferred by him under sub-section
(2) of section 15 [or sub-section (5) of section 17] or in the
payment of any charges payable under any other provision of this Act
or of [any Scheme or Insurance Scheme] or under any of the
conditions specified under section 17, [the Central Provident Fund
Commissioner or such other officer as may be authorised by the
Central Government, by notification in the Official Gazette, in this
behalf] may recover [from the employer by way of penalty such
damages, not exceeding the amount of arrears, as may be specified in
the Scheme:]
PROVIDED that
before levying and recovering such damages, the employer shall be
given a reasonable opportunity of being heard:]
PROVIDED
FURTHER that the Central Board may reduce or waive the damages
levied under this section in relation to an establishment which is a
sick industrial company and in respect of which Scheme for
rehabilitation has been sanctioned by the Board for Industrial and
Financial Reconstruction established under section 4 of the Sick
Industrial Companies (Special Provisions) Act, 1985 (1 of 1986),
subject to such terms and conditions as may be specified in the
Scheme.]
14C. Power of court to make
orders
(1) Where an
employer is convicted of an offence of making default in the payment
of any contribution to the Fund , the [Pension] Fund or the
Insurance Fund] or in the transfer of accumulations required to be
transferred by him under sub-section (2) of section 15 or
sub-section (5) of section 17, the court may, in addition to
awarding any punishment, by order in writing require him within a
period specified in the order (which the court may, if it thinks fit
and on application in that behalf, from time to time, extend), to
pay the amount of contribution or transfer the accumulations, as the
case may be, in respect of which the offence was committed.
(2) Where an
order is made under sub-section (1), the employer shall not be
liable under this Act in respect of the continuation of the offence
during the period or extended period, if any, allowed by the court,
but if, on the expiry of such period or extended period, as the case
may be, the order of the court has not been fully complied with, the
employer shall be deemed to have committed a further offence and
shall be punished with imprisonment in respect thereof under section
14 and shall also be liable to pay fine which may extend to one
hundred rupees for every day after such expiry on which the order
has not been complied with.
15. Special provisions relating
to existing provident funds
(1) Subject to
the provisions of section 17, every employee who is a subscriber to
any provident fund of [an establishment] to which this Act applies
shall, pending the application of a Scheme to] the [establishment]
in which he is employed, continue to be entitled to the benefits
accruing to him under the provident fund, and the provident fund
shall continue to be maintained in the same manner and subject to
the same conditions as it would have been if this Act had not been
passed.
(2) On the
application of any Scheme to [establishment], the accumulations in
any provident fund of the [establishment], standing to the credit of
the employees who become members of the fund established under the
Scheme] shall, notwithstanding anything to the contrary contained in
any law for the time being in force or in any deed or other
instrument establishing the provident fund but subject to the
provisions, if any, contained in the Scheme, be transferred to the
Fund established under the Scheme, and shall be credited to the
accounts of the employees entitled thereto in the Fund.
16. Act not to apply to certain
establishments
(1) This Act
shall not apply
(a) to any
establishment registered under the Co-operative Societies Act, 1912,
or under any other law for the time being in force in any State
relating to co-operative societies, employing less than fifty
persons and working without the aid of power, or
(b) to any
other establishment belonging to or under the control of the Central
Government or a State Government and whose employees are entitled to
the benefit of Contributory provident fund or old age pension in
accordance with any scheme or rule framed by the Central Government
or the State Government governing such benefits, or
(c) to any
other establishment set up under any Central, Provincial or State
Act and whose employees are entitled to the benefits of contributory
provident fund or old age pension in accordance with any scheme or
rule framed under that Act governing such benefits.
(2) If the
Central Government is of opinion that having regard to the financial
position of any class of 163[establishments] or other
circumstances of the case, it is necessary or expedient so to do, it
may, by notification in the Official Gazette, and subject to such
conditions as may be specified in the notification, exempt , whether
prospectively or retrospectively,] that class of [establishments]
from the operation of this Act or such period as may be specified in
the notification.]
16A. Authorising certain
employers to maintain provident fund accounts
(1) The
Central Government may, on an application made to it in this behalf
by the employer and the majority of employees in relation to an
establishment employing one hundred or more persons, authorise the
employer, by an order in writing, to maintain a provident fund
account in relation to the establishment, subject to such terms and
conditions as may be specified in the Scheme:
PROVIDED that
no authorisation shall be made under this sub-section if the
employer of such establishment had committed any default in the
payment of provident fund contribution or had committed any other
offence under this Act during the three years immediately preceding
the date of such authorisation.
(2) Where an
establishment is authorised to maintain a provident fund account
under sub-section (1), the employer in relation to such
establishment shall maintain such account, submit such return,
deposit the contribution in such manner, provide for such facilities
for inspection, pay such administrative charges, and abide by such
other terms and conditions, as may be specified in the Scheme.
(3) Any
authorisation made under this section may be cancelled by the
Central Government by order in writing if the employer fails to
comply with any of the terms and conditions of the authorisation or
where he commits any offence under any provision of this Act:
PROVIDED that
before cancelling the authorisation, the Central Government shall
give the employer a reasonable opportunity of being heard.]
17. Power to exempt
(1) The
appropriate government may, by notification in the Official Gazette,
and subject to such conditions as may be specified in the
notification, 165[exempt, whether prospectively or
retrospectively, from the operation] of all or any of the provisions
of any Scheme:
(a) any
[establishment] to which this Act applies if, in the opinion of the
appropriate government, the rules of its provident fund with respect
to the rates of contribution are not less favourable than those
specified in section 6 and the employees are also in enjoyment of
other provident fund benefits which on the whole are not less
favourable to the employees than the benefits provided under this
Act or any Scheme in relation to the employees in any other
1establishment] of similar character, or
(b) any
[establishment] if the employees of such [establishment] are in
enjoyment of benefits in the nature of provident fund, pension or
gratuity and the appropriate government is of opinion that such
benefits, separately or jointly, are on the whole not less
favourable to such employees than the benefits provided under this
Act or any Scheme in relation the employees in any other
[establishment] of a similar character.
[PROVIDED that
no such exemption shall be made except after consultation with the
Central Board which on such consultation shall forward its views on
exemption to the appropriate government within such time limit as
may be specified in the Scheme.]
(1A) Where an
exemption has been granted to an establishment under clause (a) of
sub-section (1),
(a) the
provisions of sections 6, 7A, 8 and 14B shall, so far as may be,
apply to the employer of the exempted establishment in addition to
such other conditions as may be specified in the notification
granting such exemption, and where such employer contravenes, or
makes default in complying with any of the said provisions or
conditions or any other provision of this Act, he shall be
punishable under section 14 as if the said establishment had not
been exempted under the said clause (a);
(b) the
employer shall establish a Board of Trustees for the administration
of the Provident Fund consisting of such number of members as may be
specified in the Scheme;
(c) the terms
and conditions of service of members of the Board of Trustees shall
be such as may be specified in the Scheme;
(d) the Board
of Trustees constituted under clause (b) shall-
(i) maintain
detailed accounts to show the contributions credited, withdrawals
made and interest accrued in respect of each employee;
(ii) submit
such returns to the Regional Provident Fund Commissioner or any
other officer as the Central Government may direct from time to
time;
(iii) invest
the provident fund monies in accordance with the directions issued
by the Central Government from time to time;
(iv) transfer,
where necessary, the provident fund account of any employee;
and
(v) perform
such other duties as may be specified in the Scheme.
(1B) Where the
Board of Trustees established under clause (b) of sub-section (1A)
contravenes, or makes default in complying with, any provisions of
clause (d) of that sub-section, the Trustees of the said Board shall
be deemed to have committed an offence under sub-section (2A) of
section 14 and shall be punishable with the penalties provided in
that sub-section.
(1C) The
appropriate government may,by notification in the Official
Gazette,and subject to the condition on the pattern of investment of
pension fund and such other conditions as may be specified therein,
exempt any establishment or class of establishments from the
operation of the Pension Scheme if the employees of such
establishment or class of establishments are either members of any
other pension scheme or propose to be members of such pension
scheme, where the pensionary benefits are at par or more favourable
than the Pension Scheme under this Act,]
(2) Any Scheme
may make provision for exemption of any person or class of persons
employed in any [establishment] to which the Scheme applies from the
operation of all or any of the provisions of the Scheme, if such
person or class of persons is entitled to benefits in the nature of
provident fund, gratuity or old age pension and such benefits,
separately or jointly, are on the whole not less favourable than the
benefits provided under this Act or the Scheme:
PROVIDED that
no such exemption shall be granted in respect of a class of persons
unless the appropriate government is of opinion that the majority of
persons constituting such class desire to continue to be entitled to
such benefits.
(2A) The
Central Provident Fund Commissioner may, if requested so to do by
the employer, by notification in the Official Gazette, and subject
to such conditions as may be specified in the notification, exempt,
whether prospectively or retrospectively, any establishment from the
operation of all or any of the provisions of the Insurance Scheme,
if he is satisfied] that the employees of such establishment are,
without making any separate contribution or payment of premium, in
enjoyment of benefits in the nature of life insurance, whether
linked to their deposits in provident fund or not, and such benefits
are more favourable to such employees than the benefits admissible
under the Insurance Scheme.
(2B) Without
prejudice to the provisions of sub-section (2A), the Insurance
Scheme may provide for the exemption of any person or class of
persons employed in any establishment and covered by that Scheme
from the operation of all or any of the provisions thereof, if the
benefits in the nature of life insurance admissible to such person
or class of persons are more favourable than the benefits provided
under the Insurance Scheme.]
(3) Where in
respect of any person or class of persons employed in an
establishment an exemption is granted under this section from the
operation of all or any of the provisions of any scheme (whether
such exemption has been granted to the establishment wherein such
person or class of persons is employed or to the person or class of
persons as such), the employer in relation to such
establishment-
(a) shall, in
relation to the provident fund, pension and gratuity to which any
such person or class of persons is entitled, maintain such accounts,
submit such returns, make such investment, provide for such
facilities for inspection and pay such inspection charges, as the
Central Government may direct;
(b) shall not,
at any time after the exemption, without the leave of the Central
Government, reduce the total quantum of benefits in the nature of
pension, gratuity or provident fund to which any person or class of
persons was entitled at the time of the exemption; and
(c) shall,
where any such person leaves his employment and obtains
re-employment in another establishment to which this Act applies,
transfer within such time as may be specified in this behalf by the
Central Government, the amount of accumulations, to the credit of
that person in the provident fund of the establishment left by him
to the credit of that person's account in the provident fund of the
establishment in which he is re-employed or, as the case may be, in
the fund established under the Scheme applicable to the
establishment.]
(3A) Where, in
respect of any person or class of persons employed in any
establishment, an exemption is granted under sub-section (2A) or
sub-section (2B) from the operation of all or any of the provisions
of the Insurance Scheme (whether such exemption is granted to the
establishment wherein such person or class of persons is employed or
to the person or class of persons as such), the employer in relation
to such establishment:
(a) shall, in
relation to the benefits in the nature of life insurance, to which
any such person or class of persons is entitled, or any insurance
fund, maintain such accounts, submit such returns, make such
investments, provide for such facilities for inspection and pay such
inspection charges, as the Central Government may direct;
(b) shall not,
at any time after the exemption without the leave of the Central
Government, reduce the total quantum of benefits in the nature of
life insurance to which any such person or class of persons was
entitled immediately before the date of the exemption;
(4) any
exemption granted under this section may be cancelled by the
authority which granted it, by order in writing, if an employer
fails to comply, -
(a) in the
case of an exemption granted under sub-section (1), with any of the
conditions imposed under that sub-section or sub-section(1A)or with
any of the provisions of the sub-section (3);
(aa) in the
case of an exemption granted under sub-section (1C), with any of the
conditions imposed under that sub-section; and
(b) in the
case of an exemption granted under sub-section (2), with any of the
provisions of sub-section (3);
(c) in the
case of an exemption granted under sub-section (2A), with any of the
conditions imposed under that sub-section or with any of the
provisions of sub-section (3A);
(d) in the
case of an exemption granted under sub-section (2B), with any of the
provisions of sub-section (3A).]
(5) Where any
exemption granted under sub-section (1), sub-section (1C),
sub-section (2), sub-section (2A) or sub-section (2B)] is cancelled,
the amount of accumulations to the credit of every employee to whom
such exemption applied, in the provident fund, [the [Pension] Fund
or the Insurance Fund] of the establishment in which he is employed
together with any amount forfeited from the employer's share of
contribution to the credit of the employee who leaves the employment
before the completion of the full period of service] shall be
transferred within such time and in such manner as may be specified
in the Scheme or the [Pension] Scheme [or the Insurance Scheme] to
the credit of his account in the Fund or the [Pension] Fund [or the
Insurance Fund], as the case may be.]
(6) Subject to
the provisions of sub-section [(1C)], the employer of an exempted
establishment to which the provisions of the [Pension] Scheme apply,
shall, notwithstanding any exemption granted under sub-section (1)
or sub-section (2), pay to the [Pension] Fund such portion of the
employers contribution
to its provident fund within such time and in such manner as
may be specified in the [Pension] Scheme.]
17A. Transfer of
accounts
(1) Where an
employee employed in an establishment to which this Act applies
leaves his employment and obtains re-employment in another
establishment to which this Act does not apply, the amount of
accumulations to the credit of such employee in the Fund, or as the
case may be, in the provident fund of the establishment left by him
shall be transferred, within such time as may be specified by the
Central Government in this behalf, to the credit of his account in
the provident fund of the establishment in which he is re-employed,
if the employee so desires and the rules in relation to that
provident fund permit such transfer.
(2) Where an
employee employed in an establishment to which this Act does not
apply leaves his employment and obtains re-employment in another
establishment to which this Act applies, the amount of accumulations
to the credit of such employee in the provident fund of the
establishment left by him may, if the employee so desires and the
rules in relation to such provident fund permit, be transferred to
the credit of his account in the Fund or as the case may be, in the
provident fund of the establishment in which he is
re-employed.]
17AA. Act to have effect
notwithstanding anything contained in Act 31 of 1956
The provisions
of this Act shall have effect notwithstanding anything inconsistent
therewith contained in the Life Insurance Act, 1956.]
17B. Liability in case of
transfer of establishment
Where an
employer, in relation to an establishment, transfers that
establishment in whole or in part, by sale, gift, lease or license
or in any other manner whatsoever, the employer and the person to
whom the establishment is so transferred shall jointly and severally
be liable to pay the contribution and other sums due from the
employer under any provision of this Act or the Scheme or the
[Pension] Scheme, as the case may be, in respect of the period up to
the date of such transfer:
PROVIDED that
the liability of the transferee shall be limited to the value of the
assets obtained by him by such transfer.]
18. Protection of action taken in
good faith
No suit,
prosecution of other legal proceeding shall lie against the Central
Government, a State Government, the Presiding Officer of a Tribunal,
any authority referred to in section 7A, an Inspector or any other
person for anything which is in good faith done or intended to be
done in pursuance of this Act, the Scheme, the
127[Pension] or the Insurance Scheme.
18A. Presiding officer and other
officers to be public servants
The Presiding
Officer of a Tribunal, its officers and other employees, the
authorities referred to in section 7A and every Inspector shall be
deemed to be public servants within the meaning of section 21 of
Indian Penal Code (45 of 1860).]
19. Delegation of
powers
The
appropriate government may direct that any power or authority or
jurisdiction exercisable by it under this Act, the Scheme
183[, the 127[Pension] Scheme or the Insurance
Scheme] shall, in relation to such matters and subject to such
conditions, if any, as may be specified in the direction, be
exercisable also:
(a) where the
appropriate government is the Central Government, by such officer or
authority subordinate to the Central Government or by the State
Government or by such officer or authority sub-ordinate to the State
Government, as may be specified in the notification; and
(b) where the
appropriate government is a State Government, by such officer or
authority subordinate to the State Government as may be specified in
the notification.]
20. Power of Central Government
to give directions
The Central
Government may, from time to time, give such directions to the
Central Board as it may think fit for the efficient administration
of this Act and when, any such direction is given, the Central Board
shall comply with such direction.
21. Power to make
rules
(1) The
Central Government may, by notification in the Official Gazette,
make rules to carry out the provisions of this Act.
(2) Without
prejudice to the generality of the foregoing power, such rules may
provide for all or any of the following matters, namely:
(a) the salary
and allowances and other terms and conditions of service of the
Presiding Officer and the employees of a Tribunal;
(b) the form
and the manner in which, and the time within which, an appeal shall
be filed before a Tribunal and the fees payable for filing such
appeal;
(c) the manner
of certifying the copy of the certificate, to be forwarded to the
Recovery Officer under sub-section (2) of section 8C; and
(d) any other
matter, which has to be, or may be, prescribed by rules under this
Act.
(3) Every rule
made under this Act shall be laid, as soon as may be after it is
made, before each House of Parliament, while it is in session, for a
total period of thirty days which may be comprised in one session or
in two or more successive sessions, and if, before the expiry of the
session immediately following the session or the successive sessions
aforesaid, both Houses agree in making any modification in the rule
or both Houses agree that the rule should not be made, the rule
shall thereafter have effect only in such modified form or be of no
effect, as the case may be; so, however, that any such modification
or annulment shall be without prejudice to the validity of anything
previously done under that rule.
22. Power to remove
difficulties
(1) If any
difficulty arises in giving effect to the provisions of this Act, as
amended by the Employees' Provident Funds and Miscellaneous
Provisions (Amendment) Act, 1988, the Central Government may, by
order published in the Official Gazette, make such provisions, not
inconsistent with the provisions of this Act as appear to it to be
necessary or expedient for the removal of the difficulty:
PROVIDED that
no such order shall be made after the expiry of a period of three
years from the date on which the said Amendment Act receives the
assent of the President.
(2) Every
order made under this section shall, as soon as may be after it is
made, be laid before each House of Parliament.]
SCHEDULE I
(See
sections 2(i) and 4)
Any industry
engaged in the manufacture [***] of any of the following,
namely:
Cement.
Cigarettes.
Electrical,
mechanical or general engineering products.
Iron and
steel.
Paper.
Textiles (made
wholly or in part of cotton or wool or jute or silk, whether natural
or artificial).
1.
Matches.
2. Edible oils
and fats.
3. Sugar.
4. Rubber and
rubber products.
5.
Electricity, including the generation, transmission and distribution
thereof.
6. Tea.
7. Printing
[other than printing industry relating to newspaper establishments
as defined in the Working Journalists (Conditions of Service) and
Miscellaneous Provisions Act, 1955 (45 of 1955), including the
process of composing types for printing, printing by letter-press,
lithography, photogravure or other similar process or
bookbinding.]
8. Glass.
9. Stone-ware
pipes.
10. Sanitary
wares.
11. Electrical
porcelain insulators of high and low tension.
12.
Refractories.
13.
Tiles.]
1. Heavy and
fine chemicals, including:
(i)
Fertilisers,
(ii)
Turpentine,
(iii)
Resin,
(iv) Medical
and pharmaceutical preparations,
(v) Toilet
preparations,
(vi)
Soaps,
(vii)
Inks,
(viii)
Intermediates, dyes, colour lacs and toners,
(ix) Fatty
acids, and
(x) Oxygen,
acetylene and carbon-dioxide gases industry.]
2.
Indigo.
3. Lac
including shellac.
4. Non-edible,
vegetable and animal oils and fats.]
[Mineral oil
refining industry.]
[(i)
Industrial and power alcohol industry; and
(ii) Asbestos
cement sheets industry.]
[Biscuit-making industry including composite units making
biscuits and products such as bread, confectionery and milk and milk
powder.]
[Mica
industry.]
[Plywood
industry.]
[Automobile
repairing and servicing industry.]
[1. Rice
milling.
2. Flour
milling
3. Dal
milling.]
[Starch
industry.]
[1. Petroleum
or natural gas exploration, prospecting, drilling or
production.
2. Petroleum
or natural gas refining.]
[Leather and
leather products industry.]
[1. Stone-ware
jars.
2.
Crockery.]
[The fruit and
vegetable preservation industry, that is to say, any industry which
is engaged in the preparation or production of any of the following
articles, namely:
(i) canned and
bottled fruits, juices and pulps,
(ii) canned
and bottled vegetables,
(iii) frozen
fruits and vegetables,
(iv) jams,
jellies and marmalades,
(v) tomato
products, ketchups and sauces,
(vi) squashes,
crushes, cordials and ready-to-serve beverages or any other
beverages containing fruit juice or fruit pulp,
(vii)
preserved, canned and crystallised fruits and peels,
(viii)
chutneys,
(ix) any other
unspecified item relating to the preservation or canning of fruits
and vegetables.]
[Cashewnut
industry.]
[Confectionery
industry.]
[1.
Buttons.
2.
Brushes.
3. Plastic and
plastic products.
4. Stationery
products.]
[The aerated
water industry, that is to say, any industry engaged in the
manufacture of aerated water, soft drinks or carbonated water.]
[The
distilling and rectifying of spirits (not falling under industrial
and power alcohol) and blending of spirits industry.]
[The paint and
varnish industry.]
[Bone crushing
industry.]
[Pickers
industry.]
[Milk and milk
products industry.]
[Non-ferrous
metals and alloys in the form of ingots industry.]
[Bread
industry.]
[Stemming or
re-drying of tobacco leaf industry, that is to say, any industry
engaged in the stemming, re-drying, handling, sorting, grading or
packing of tobacco leaf.]
[Agarbattee
(including dhoop and dhoopbattee) industry.]
[Coir
(excluding the spinning sector) industry.]
[Tobacco
industry, that is to say, any industry engaged in the manufacture of
cigars, zarda, snuff, quivam and guraku from tobacco.]
[Paper
products industry.]
[Licensed salt
industry, that is to say, any industry engaged in the manufacture of
salt for which a license is necessary and which has land not less
than 4.05 hectares.]
[Linoleum
industry and indoleum industry.]
[Explosive
industry.]
[Jute bailing
or pressing industry.]
[Fire-works
and percussion cap works industry.]
[Tent making
industry.]
[Ferro-manganese industry.]
[Ice or
ice-cream industry.]
[Winding of
thread and yarn reeling industry.]
[Cotton
ginning, baling and pressing industry.]
[Katha making
industry.]
[Beer
manufacturing industry, that is to say, any industry engaged in the
manufacture of the product of alcoholic fermentation of a mash in
potable water of malted barley and hops, or of hops concentrated
with or without the addition of other malted or unmalted cereals or
other carbohydrate preparations.]
[Beedi
industry, that is to say, any industry engaged in manufacture of
beedies.]
[Ferro-chrome
industry.]
[Diamond
cutting industry.]
[Myrobalan
extract powder, myrobalan extract solid and vegetable tannin blended
extract industries.]
[Brick
industry.]
[All
industries based on asbestos as principal raw material.]
[Industries
manufacturing iron ore pellets.]
[Explanation: In this
Schedule, without prejudice to the ordinary meaning of the
expressions used therein,:
(a) the
expression "Electrical, mechanical or general engineering products"
includes :
(1) machinery
and equipment for the generation, transmission, distribution or
measurement of electrical energy and motors including cables and
wires,
(2)
telephones, telegraph and wireless communication apparatus,
(3) electric
lamps (not including glass bulbs),
(4) electric
fans and electrical domestic appliances,
(5) storage
and dry batteries,
(6) radio
receivers and sound reproducing instruments,
(7) machinery
used in industry (including textile machinery) other than electrical
machinery and machine tools,
(8) boilers
and prime movers, including internal combustion engines, marine
engines and locomotives,
(9) machines
tools, that is to say, metal and wood working machinery,
(10) grinding
wheels,
(11)
ships
(12)
automobiles and tractors,
(13) bolts,
nuts and rivets,
(14)
power-driven pumps,
(15)
bicycles,
(16) hurricane
lanterns,
(17) sewing
and knitting machines,
(18)
mathematical and scientific instruments,
(19) products
of metal rolling and re-rolling,
(20) wires,
pipes, tubes and fittings,
(21) ferrous
and non-ferrous castings,
(22) safes,
vaults and furniture made of iron and steel or steel alloys,
(23) cutlery
and surgical instruments,
(24) drums and
containers,
(25) parts and
accessories of products specified in items 1 to 24;
(b) the
expression 'iron and steel' includes pig iron, ingots, blooms,
billets and rolled or re-rolled products into basic forms and tool
and alloy steel;
(c) the
expression 'paper' includes pulp, paperboard and straw-board;
(d) the
expression 'textiles' includes the products of carding, spinning,
weaving, finishing and dyeing yarn and fabrics, printing, knitting
and embroidering.]
SCHEDULE II : MATTERS FOR WHICH PROVISION MAY BE MADE IN A
SCHEME
[See
section 5(1B)]
1. The
employees or class of employees who shall join the Fund, and the
conditions under which employees may be exempted from joining the
Fund or from making any contribution.
2. The time
and manner in which contribution shall be made to the Fund by
employers and by, or on behalf of, employees, [whether employed by
him directly or by or through contractor)], the contributions which
an employee may, if he so desires, make under section 6, and the
manner in which such contributions may be recovered.
2A. The manner
in which employees' contribution may be recovered by contractors
from employees employed by or through such contractors.]
3. The payment
by the employer of such sums of money as may be necessary to meet
the cost of administering the Fund and the rate at which and the
manner in which the payment shall be made.
4. The
constitution of any committee for assisting any Board of
Trustees.
5. The opening
of regional and other offices of any Board of Trustees.]
6. The manner
in which accounts shall be kept, the investment of moneys belonging
to the Fund in accordance with any directions issued or conditions
specified by the Central Government, the preparation of the budget,
the audit of accounts and the submission of reports to the Central
Government or to any specified State Government.
7. The
conditions under which withdrawals from the Fund may be permitted
and any deduction or forfeiture may be made and the maximum amount
of such deduction or forfeiture.
8. The
fixation by the Central Government in consultation with the board of
trustees concerned of the rate of interest payable to members.
9. The form in
which an employee shall furnish particulars about himself and his
family whenever required.
10. The
nomination of a person to receive the amount standing to the credit
of a member after his death and the cancellation or variation of
such nomination.
11. The
registers and records to be maintained with respect to employees and
the returns to be furnished by employers 152[or
contractors].
12. The form
or design of any identity card, token or disc for the purpose of
identifying any employee, and for the issue, custody and replacement
thereof.
13. The fees
to be levied for any of the purposes specified in this
Schedule.
14. The
contraventions or defaults which shall be punishable under
sub-section (2) of section 14.
15. The
further powers, if any, which may be exercised by Inspectors.
16. The manner
in which accumulations in any existing provident fund shall be
transferred to the Fund under section 15, and the mode of valuation
of any assets which may be transferred by the employers in this
behalf.
17. The
conditions under which a member may be permitted to pay premia on
life insurance, from the Fund.
18. Any other
matter [which is to be provided for in the Scheme or ] which may be
necessary or proper for the purpose of implementing the
Scheme.]
[SCHEDULE III : MATTERS FOR WHICH PROVISION MAY BE MADE IN
THE PENSION SCHEME
[See
Section 6A(5)]
1. The
employees or class of employees to whom the Pension Scheme shall
apply.
2. The time
within which the employees who are not members of the
127[Pension] Scheme under section 6A as it stood before
the commencement of the Employees Provident Funds and Miscellaneous
Provisions (Amendment) Act, 1996 (hereinafter, in this Schedule,
referred to as the amending Act) shall opt for the Pension
Scheme.
3. The portion
of employer's contribution to the Provident Fund which shall be
credited to the Pension Fund and the manner in which it is
credited.
4. The minimum
qualifying service for being eligible for pension and the manner in
which the employees may be granted the benefits of their past
service under section 6A as it stood before the commencement of the
amending Act.
5. The
regulation of the manner in which and the period of service for
which no contribution is received.
6. The manner
in which employees' interest will be protected against default in
payment of contribution by the employer.
7. The manner
in which the accounts of the Pension Fund shall be kept and
investment of moneys belonging to Pension Fund to be made subject to
such pattern of investment as may be determined by the Central
Government.
8. The form in
which an employees shall furnish particulars about himself and the
members of his family whenever required.
9. The forms,
registers and records to be maintained in respect of employees,
required for the administration of the Pension Scheme.
10. The scale
of pension and pensionary benefits and the conditions relating to
grant of such benefits to the employees.
11. The manner
in which the exempted establishments have to pay contribution
towards the Pension Scheme and the submission of returns relating
thereto.
12. The mode
of disbursement of pension and arrangements to be entered into with
such disbursing agencies as may be specified for the purpose.
13. The manner
in which the expenses for administering the Pension Scheme will be
met from the income of the Pension Fund.
14. Any other
matter which is to be provided for in the Pension Scheme or which
may be necessary or proper for the purpose of implementation of the
Pension Scheme.]
[SCHEDULE IV: MATTERS TO BE PROVIDED FOR IN THE EMPLOYEES'
DEPOSIT LINKED INSURANCE SCHEME
[See
section 6C]
1. The
employees or class of employees who shall be covered by the
Insurance Scheme.
2. The manner
in which the accounts of the Insurance Fund shall be kept and the
investment of moneys belonging to the Insurance Fund subject to such
pattern of investment as may be determined, by order, by the Central
Government.
3. The form in
which an employee shall furnish particulars about himself and the
members of his family whenever required.
4. The
nomination of a person to receive the insurance amount due to the
employee after his death and the cancellation or variation of such
nomination.
5. The
registers and records to be maintained in respect of employees, the
form or design of any identity card, token or disc for the purpose
of identifying any employee or his nominee or member of his family
entitled to receive the insurance amount.
6.
240[The scales of insurance benefits and conditions
relating to the grant of such benefits to the employees.]
8. The manner in which the amount due to the nominee or the
member of the family of the employee under the Scheme is to be paid
including a provision that the amount shall not be paid otherwise
than in the form of a deposit in a saving bank account, in the name
of such nominee or member of family, in any corresponding new bank
specified in the First Schedule to the Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1970 (5 of
1970).
9. Any other matter which is to be provided for in the
Employees' Deposit Linked Insurance Scheme or which may be necessary
or proper for the purpose of implementing that Scheme.]
EMPLOYEES' PROVIDENT FUNDS
APPELLATE TRIBUNAL (PROCEDURE) RULES, 1997
[Dated 2nd.
June, 1997]
In exercise of the powers
conferred by sub-section (1) of section 21 of the Employees'
Provident Funds and
Miscellaneous Provisions Act, 1952 (19 of 1952), the Central
Government hereby makes
the following rules namely: -
1. Short title and
commencement
(1) These
rules may be called the Employees' Provident Funds Appellate
Tribunal (Procedure) Rules, 1997.
(2) They shall
come into force from the date of their publication in the Official
Gazette.
2. Definitions
In these rules
unless the context otherwise requires,-
(a) "Act"
means the Employees' Provident Funds and Miscellaneous Provisions
Act, 1952 (19 of 1952);
(b) "agent"
means a person duly authorised by a party to present an appeal or a
written reply on its behalf, before the Tribunal;
(c)
"appellant" means a person or the establishment making an appeal to
the Tribunal under section 7-I;
(d) "Form"
means a form specified in Appendix;
(e) "legal
practitioner" shall have the same meaning as is assigned to it in
the Advocates Act, 1961 (25 of 1961);
(f) "legal
representative" means a person who in law represents the estate of
the deceased;
(g)
"Registrar" means the Registrar appointed for the Tribunal and
includes any officer to whom the powers and functions of the
Registrar may be delegated under these rules;
(h) "Registry"
means the Registry of the Tribunal;
(i) "Tribunal"
means the Employees' Provident Funds Appellate Tribunal established
under sub-section (1) of section 7(D) of the Act;
(j) The words
and expressions used and not defined in these rules but defined in
the Act shall have the same meanings respectively assigned to them
in the Act.
3. Language
of the Tribunal
The
language of the Tribunal shall be English:
PROVIDED that the parties to the proceedings before the
Tribunal may file documents drawn up in Hindi, if they so
desire:
PROVIDED FURTHER that-
(a) the
Tribunal may in its discretion permit the use of Hindi in the
proceedings but the final order shall be in English;
(b) the
Tribunal hearing the matter, may in its discretion, direct English
translation of pleadings and documents to be filed.
4. Procedure for filing
appeals
(1) An
appeal to the Tribunal shall be presented in Form I by the appellant
in person or by an agent or by a duly authorised legal practitioner
to the Registrar or any other officer authorised in writing by the
Registrar to receive the same or be sent by registered post with
acknowledgment due addressed to the Registrar of the Tribunal.
(2) The
appeal under sub-rule (1) shall be presented in triplicate in a
paper-book form along with one unused file size envelope bearing
full address of the respondent.
(3)
Where the number of respondents is more than one, as many extra
copies of the appeal in paper-book form as there are respondents
together with unused file size envelopes bearing the full address of
each respondent shall be furnished by the appellant:
PROVIDED that where the number of respondents is more than
five, the Registrar may permit the appellant to file the extra
copies of the appeal at the time of issue of notice to the
respondents.
(4) The
appellant may attach to and present with his appeal a receipt slip
in Form II which shall be signed by the Registrar or the officer
receiving the appeal on behalf of the Registrar in acknowledgment of
the receipt of the appeal.
5. Presentation and scrutiny of
appeals
(1) The
Registrar, or the officer authorised by him under rule 4, shall
endorse on every appeal the date on which it is presented or deemed
to have been presented under that rule and shall sign the
endorsement.
(2) If,
on scrutiny, the appeal is found to be in order it shall be duly
registered and given a serial number.
(3) If
the appeal, on scrutiny, is found to be defective and the defect
noticed is formal in nature, the Registrar may allow the party to
rectify the same in his presence, and if the said defect is not
formal in nature, the Registrar may allow the appellant such time to
rectify the defect as he may deem fit.
(4) If
the appellant fails to rectify the defect within the time allowed
under sub-rule (3), the Registrar may, by order and for reasons to
be recorded in writing, decline to register the appeal and inform
the appellant accordingly.
6. Place of filing
appeals
The
appeal shall ordinarily be filed by the appellant with the Registrar
of the Tribunal within whose jurisdiction:-
(i) the
appellant is residing for the time being, or
(ii)
the cause of action has arisen, or
(iii)
the respondent or any of the respondents against whom relief is
sought, ordinarily resides.
7. Fee, time for filing appeal,
deposit of amount due on filing appeal
(1)
Every appeal filed with the Registrar shall be accompanied by a fee
of rupees two hundred to be remitted either in the form of crossed
demand draft on a nationalised bank in favour of the Registrar of
the Tribunal and payable at the main branch of that bank at the
station where the seat of the said Tribunal is situated, or remitted
through a crossed Indian Postal Order drawn in favour of the
Registrar of the Tribunal and payable at the post office of the
station where the said Tribunal is situate.
(2) Any
person aggrieved by a notification issued by the Central Government
or an order passed by the Central Government or any other authority
under the Act, may within 60 days from the date of issue of the
notification/ order, prefer an appeal to the Tribunal:
PROVIDED that the Tribunal may, if it is satisfied that the
appellant was prevented by sufficient cause from preferring the
appeal within the prescribed period, extend the said period by a
further period of 60 days:
PROVIDED FURTHER that no appeal by the employer shall be
entertained by a Tribunal unless he has deposited with the Tribunal
75% of the amount due from him as determined under section 7A:
PROVIDED ALSO that the Tribunal may for reasons to be
recorded in writing, waive or reduce the amount to be deposited
under section 7-O.
8. Content of the
appeal
(1)
Every appeal filed under rule 4 shall set forth concisely under
distinct heads the grounds for such appeal. Such grounds shall be
numbered consecutively. Every appeal, including any miscellaneous
appeal shall be typed in double space on one side on thick paper of
good quality.
9. Documents to accompany the
appeal
(1)
Every appeal shall be accompanied by a paper-book containing,-
(i) an
attested true copy of the order against which the appeal is
filed;
(ii)
copies of the documents relied upon by the appellant and referred to
in the appeal;
(iii)
an index of the documents.
(2) The
documents referred to in sub-rule (1) may be attested by a legal
practitioner or by a gazetted officer and each document shall be
marked serially as Annexures Al, A2, A3 and so on.
(3)
Where an appeal is filed by an agent, document authorising him to
act as such agent shall also be appended to the appeal:
PROVIDED that where an appeal is filed by a legal
practitioner, it shall be accompanied by a duly executed
"Vakalatnama".
10. Plural remedies
An
appeal shall be based upon a single cause of action and may seek one
or more reliefs provided that they are consequential to one
another.
11. Service of notices and
processes issued by the Tribunal
(1)
Notices or processes to be issued by the Tribunal may be served by
any of the following modes directed by the Tribunal:-
(i)
service by the party itself;
(ii) by
hand delivery (Dasti) through process server;
(iii)
by registered post with acknowledgment due.
(2)
Where notice issued by the Tribunal is served by the party himself
by "hand delivery" (Dasti), he shall file with the Registry of the
Tribunal, the acknowledgment, together with an affidavit of
service.
(3)
Notwithstanding anything contained in sub-rule (1) the Tribunal may,
taking into account the number of respondents and their places of
residence or work and other circumstances, direct that notice of the
appeal shall be served upon the respondents in any other manner
including any manner of substituted service, as it appears to the
Tribunal just and convenient.
(4)
Notwithstanding anything done under sub-rule (1), the Tribunal may
in its discretion, having regard to the nature and urgency of the
case, direct the service of the notice on the standing counsels
appointed as such by the Central Government or any State Government
or any other authority under the Act.
(5)
Every notice issued by the Tribunal shall, unless otherwise ordered,
be accompanied by a copy of the appeal along with a copy of the
paper-book.
(6)
Every appellant shall pay a fee for the service or execution of
processes in such manner as the Tribunal may direct under sub-rule
(3) such a sum, not exceeding the actual charges incurred in
effecting the service, as may be determined by the Tribunal.
(7) The
fee for the service or execution of processes under sub-rule (3)
shall be remitted in the manner prescribed in rule 7 within one week
of the date of the order determining the fee or within such extended
time as the Registrar may permit.
(8)
Notwithstanding anything contained in sub-rules (1) to (4), if the
Tribunal is satisfied that it is not reasonably practicable to serve
notice of appeal upon all the respondents, it may, for reasons to be
recorded in writing, direct that the appeal shall be heard
notwithstanding that some of the respondents have not been served
with notice of the application; provided that no appeal shall be
heard unless,-
(i)
notice of the appeal has been served on the Central Government or
the State Government or the Central Board, if such government or
Board is a respondent;
(ii)
notice of the appeal has been served on the authority which passed
the order against which the appeal has been filed; and
(iii)
the Tribunal is satisfied that the interests of the respondent on
whom notice of the appeal has not been served are adequately and
sufficiently represented by the respondents on whom notice of the
appeal has been served.
12. Filing of reply and other
documents by the respondents
(1)
Each respondent intending to contest the appeal, shall file in
triplicate the reply to the appeal and the documents relied upon in
paper-book form with the Registry within one month of the service of
notice of the appeal on him.
(2) In
the reply filed under sub-rule (1), the respondent shall
specifically admit, deny or explain the facts stated by the
appellant in his appeal and may also state such additional facts as
may be found necessary for the just decision of the case. It shall
be signed and verified as a written statement by the respondent or
any other person duly authorised by him in writing in the same
manner as provided for in Order VI, rule 15 of the Code of Civil
Procedure, 1908 (5 of 1908).
(3) The
documents referred to in sub-rule (2) shall also be filed along with
the reply and the same shall be marked as Rl, R2, R3 and so on.
(4) The
respondent shall also serve a copy of the reply along with documents
as mentioned in sub-rule (1) on the appellant or his legal
practitioner, if any, and file proof of such service in the
Registry.
(5) The
Tribunal may allow filing of the reply after the expiry of the
prescribed period.
13. Date and place of hearing to
be notified
The
Tribunal shall notify to the parties the date and the place of
hearing of the appeal in such manner as the Presiding Officer may,
by general or special order direct.
14. Calendar of cases
(1) The
Tribunal shall draw up a calendar for the hearing of the cases and,
as far as possible, hear and decide cases according to the
calendar.
(2)
Every appeal shall be heard and decided, as far as possible, within
six months from the date of its registration.
(3) The
Tribunal shall have the power to decline an adjournment and also to
limit the time for oral arguments.
15. Action on appeal for
appellant's default
(1)
Where on the date fixed for hearing of the appeal or on any other
date to which such hearing may be adjourned, the appellant does not
appear when the appeal is called for hearing, the Tribunal may, in
its discretion either dismiss the appeal for default or hearing and
decide it on merit.
(2)
Where an appeal has been dismissed for default and the appellant
files an appeal within thirty days from the date of dismissal and
satisfies the Tribunal that there was sufficient cause for his
non-appearance when the appeal was called for hearing, the Tribunal
shall make an order setting aside the order dismissing the appeal
and restore the same:
PROVIDED, however, where the case was disposed of on merits,
the decision shall not be reopened except by way of review.
16. Ex parte hearing and disposal
of appeal
(1)
Where on the date fixed for hearing the appeal or on any other date
to which such hearing may be adjourned, the appellant appears and
the respondent does not appear when the appeal is called for
hearing, the Tribunal may, in its discretion adjourn the hearing or
hear and decide the appeal ex parte.
(2)
Where an appeal has been heard ex parte against a respondent or
respondents, such respondent or respondents may apply to the
Tribunal for an order to set it aside and if such respondent or
respondents satisfy the Tribunal that the notice was not duly served
or that he or they were prevented by any sufficient cause from
appearing when the appeal was called for hearing, the Tribunal may
make an order setting aside the ex parte hearing as against him or
them upon such terms as it thinks fit, and shall appoint a day for
proceeding with the appeal:
PROVIDED that where the ex parte order of the appeal is of
such nature that it cannot be set aside as against one respondent
only, it may be set aside as against all or any of the other
respondents also:
PROVIDED FURTHER that in cases covered by sub-rule (8) of
rule 11, the Tribunal shall not set aside ex parte order of an
appeal merely on the ground that it was not served upon a respondent
or respondents.
17. Substitution of legal
representatives
(1) In
the case of death of a party during the pendency of the proceedings
before the Tribunal, the legal representatives of the deceased party
may apply within thirty days of the date of such death for being
brought on record as necessary parties.
(2)
Where no application is received from the legal representatives
within the period specified in sub-rule (1), the proceedings against
the deceased party shall abate:
PROVIDED that on good and sufficient reasons the Tribunal on
an application may set aside the order of abatement and substitute
the legal representatives.
18. Adjournment of
hearing
The
Tribunal may, if sufficient cause is shown at any stage of
proceedings, grant time to the parties or any of them, and adjourn
the hearing of the appeal.
19. Order to be signed and
dated
(1)
Every order of the Tribunal shall be in writing and shall be signed
by the Presiding Officer who pronounced the order.
(2) The
order shall be pronounced in open court.
20. Communication of orders to
parties
(1)
Every final order passed on any appeal shall be communicated to the
appellant and to the respondent concerned either by hand delivery or
by registered post free of cost.
(2) If
the appellant or the respondent to any proceeding requires a copy of
any document or proceeding, the same shall be supplied to him on
such terms and conditions on payment of such fees as may be fixed by
the Presiding Officer by general or special order.
21. Orders and directions in
certain cases
The
Tribunal may make such orders or give such directions as may be
necessary or expedient to give effect to its orders or to prevent
abuse of its process or to secure the ends of justice.
22. Working hours of the
Tribunal
Except
on Saturdays, Sundays and other public holidays, the office of the
Tribunal shall, subject to any order made by the Presiding Officer
remain open from 9.30 A.M. to 6.00 P.M.
23. Sitting hours of the
Tribunal
The
sitting hours of the Tribunal shall ordinarily be from 10.30 A.M. to
1.30 P.M. and 2.30 P.M. to 5.00 P.M. subject to any general or
special order made by the Presiding Officer.
24. Powers and functions of the
Registrar
(1) The
Registrar shall have the custody of the records of the Tribunal and
shall exercise such other functions as are assigned to him under
these rules or by the Presiding Officer by separate order.
(2) The
Official Seal shall be kept in the custody of the Registrar.
(3)
Subject to any general or special direction by the Presiding
Officer, the seal of the Tribunal shall not be affixed to any order,
summons or other process save under the authority in writing of the
Registrar.
(4) The
seal of the Tribunal shall not be affixed to any certified copy
issued by the Tribunal save under the authority in writing of the
Registrar.
25. Additional powers and duties
of Registrar
In
addition to the powers conferred elsewhere in these rules, the
Registrar shall have the following powers and duties subject to any
general or special order of the Presiding Officer namely,-
(i) to
receive all appeals and other documents;
(ii) to
decide all questions arising out of the scrutiny of the appeals
before they are registered;
(iii)
to require any appeal presented to the Tribunal to be amended in
accordance with the Act and the rules;
(iv)
subject to the direction of the Tribunal, to fix the date of first
hearing of the appeals or other proceedings and issue notices
thereof;
(v) to
direct any formal amendment of records;
(vi) to
order grant of copies of documents to parties to the
proceedings;
(vii)
to grant leave to inspect the records of the Tribunal;
(viii)
to dispose of all matters relating to the service of notices or
other processes, for the issue of fresh notices and for extending
the time for filing such appeals and to grant time not exceeding 15
days for filing a reply or rejoinder, if any, and to place the
matter before the Tribunal for appropriate order after the expiry of
the aforesaid period;
(ix) to
requisition records from the custody of any court or other
authority;
(x) to
receive appeals within thirty days from the date of death for
substitution of legal representatives of the deceased parties during
the pendency of the appeals;
(xi) to
receive and dispose of appeals for substitution, except where the
substitution would involve setting aside an order of abatement;
(xii)
to receive and dispose of applications by parties for return of
documents.
26. Seal and emblem
The
official seal and emblem of the Tribunal shall be in a round shape
bearing name of the Tribunal in capital letters with Ashoka Pillar
in the centre.
27. Dress of the Presiding
Officer and staff of the Tribunal
The
dress for the Presiding Officer of the Tribunal and members of the
staff of the Tribunal shall be such as the Presiding Officer may
specify.
28. Dress of the
parties
A legal
practitioner or, as the case may be, a presenting officer shall
appear before the Tribunal in his professional dress, if any, and if
there is no such dress,-
(i) if
a male, in a closed collared coat and trousers in a lounge
suit;
(ii) if
a female in a saree or any other customary dress of a sober
colour.
29. Expenses of the
Tribunals
The
entire administrative expenses of the Tribunals shall be borne by
the Central Board of Trustees, Employees' Provident Fund.
APPENDIX
FORM-I : APPEAL UNDER SECTION 7-I
OF THE EMPLOYEES' PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT,
1952
(Rule
4)
Title
of the case:-
APPEAL
INDEX
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SI. No. |
Description of
documents relied |
Page No. |
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1 |
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2 |
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3 |
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4 |
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Signature of the Applicant
For use
in Tribunal's office
Date of
filing or
Date of
Receipt by post
Registration No.
Signature for Registrar
IN THE
EMPLOYEES' PROVIDENT FUNDS
APPELLATE TRIBUNAL
BETWEEN
A. B.
APPELLANT
and
C. D.
RESPONDENT
Details of appeal
1.
Particulars of the appellant:
(i)
Name of the appellant
(ii)
Office address
(iii)
Address for service of notices
2.
Particulars of the respondent:-
(i)
Name of the respondent
(ii)
Office address
(iii)
Address for service of notices.
3.
Particulars of the order/ notification against which appeal is made:
The appeal is against the following order/ notification:-
(i)
Order/ notification No. with reference to Annexure
(ii)
Date
(iii)
Passed by
(iv)
Subject in brief
4. Jurisdiction of the
Tribunal- The appellant declares that the
subject-matter of the order against which he wants redressal is
within the jurisdiction of the Tribunal.
5. Limitation- The appellant
further declares that the appeal is within the limitation prescribed
in section 7-I of the Employees' Provident Funds and Miscellaneous
Provisions Act, 1952.
6. Facts of the case- The facts of the case are as
given below:-
(Give
here a concise statement of facts in a chronological order, each
paragraph containing as nearly as possible a separate issue, fact or
otherwise.)
7. Details of the remedies
exhausted- The appellant declares that he has availed of all the
remedies available to him under the Act.
(Give
here chronologically the details of representations made and the
outcome of such representation with reference to the Annexure
numbers.)
8. Matters not previously filed or
pending with any other court- The appellant further declares
that he had not previously filed any appeal, writ petition or suit
regarding the matter in respect of which this appeal has been made,
before any court of law or any other authority or any other Bench of
the Tribunal and or any such appeal, writ petition or suit is
pending before any of them.
In case
the appellant had previously filed any appeal, writ petition or
suit, the stage at which it is pending and if decided, the gist of
the decision should be given with reference to the Annexure.
9. Relief(s) sought- In view
of the facts mentioned in para 6 above the appellant prays for the
following relief(s):-
[Specify below the relief(s) sought explaining the ground for
relief(s) and the legal provisions (if any) relied upon.]
10. Interim order, if any prayed
for- Pending final decision on the appeal, the
appellant seeks issue of the following interim order.
(Give
here the nature of the interim order prayed for with reasons.)
11. In
the event of appeal being sent by registered post, it may be stated
whether the appellant desires to have oral hearing at the admission
stage and if so, he shall attach a self addressed post card/ inland
letter, at which intimation regarding the date of hearing could be
sent to him.
12
Particulars of bank draft/ postal order in respect of the appeal
fee:-
(1)
Name of the bank on which drawn.
(2)
Demand draft no.
(Or)
(1)
Number of Indian postal order
(2)
Name of the issuing post office
(3)
Date of issue of postal order
(4)
Post office at which payable
13.
List of enclosures-
1.
4.
2.
5.
3.
6.
VERIFICATION
I
....................................................... (Name of the
appellant), s/o, d/o,w/o ..........................……………… age
………………. working as ………......................... in the office of
............................................ resident of
.................................. do hereby verify that the
contents of paras ......……... to .......................... are true
to my personal knowledge and paras ….......... to …...........
believed to be true on legal advice and that I have not suppressed
any material fact.
Signature of the appellant.
Date:
Place:
To
The
Registrar
FORM II : RECEIPT
SLIP
(Rule 4(1))
Receipt
of the appeal filed in the Employees' Provident Funds Appellate
Tribunal by Shri/ Smt./ Kum ....……………. working in/ for ……….. of
…….......... residing at . . .….. is hereby acknowledged.
For
Registrar
EPF
Appellate Tribunal
[(d) makes
copies of, or take extracts from, any book, register or other
document maintained in relation to the establishment and, where he
has reason to believe that any offence under this Act has been
committed by an employer, seize with such assistance as he may think
fit, such book, register or other document or portions thereof as he
may consider relevant in respect of that offence;]
(e) exercise
such other powers as the 125[Scheme or the Insurance
Scheme] may provide.
(2A) Any
Inspector appointed under sub-section (1) may, for the purpose of
inquiring into the correctness of any information furnished in
connection with the 127[Pension] Scheme or for the
purpose of ascertaining whether any of the provisions of this Act or
of the [Pension] Scheme have been complied with in respect of an
establishments to which the [Pension] Scheme applies, exercise all
or any of the powers conferred on him under clause (a), (b), (c) or
(d) of sub-s. (2).]
[(2B) The
provisions of the [Code of Criminal Procedure, 1898], shall, so far
as may be, apply to any search or seizure under sub-section (2) [or
under sub-section (2A), as the case may be,] as they apply to any
search and seizure made under the authority of a warrant issued
under [section 98] of the said Code.
14. Penalties
(1) Whoever,
for the purpose of avoiding any payment to be made by himself under
this Act [the Scheme, [,the [Pension] Scheme] or the Insurance
Scheme] or of enabling any other person to avoid such payment
knowingly makes or causes to be made any false statement or false
representation shall be punishable with imprisonment for a term
which may extend to [one year, or with fine of five thousand rupees,
or with both].
(1A) An
employer who contravenes, or makes default in complying with, the
provisions of section 6 or clause (a) of sub-section (3) of section
17 in so far as it relates to the payment of inspection charges, or
para 38 of the Scheme insofar as it relates to the payment of
administrative charges, shall be punishable with imprisonment for a
term which may extend to [three years] but
(a) which
shall not be less than [one year and fine of ten thousand rupees] in
case of default in payment of employees' contribution which has been
deducted by the employer from the employees' wages;
[(b) which
shall not be less than six months and fine of five thousand rupees,
in any other case:]
PROVIDED that
the court may, for any adequate and special reasons to be recorded
in the judgement, impose a sentence of imprisonment for a lesser
term
(1B) An
employer who contravenes, or makes default in complying with, the
provisions of section 6C, or clause (a) of sub-section (3A) of
section 17 in so far as it relates to payment of inspection charges,
shall be punishable with imprisonment for a term which may extend
to [one year] but which shall not be less than [Six
months] and shall also be liable to fine which may extend to [five
thousand rupees]:
PROVIDED that
the court may, for any adequate and special reasons to be recorded
in the judgement, impose a sentence of imprisonment for a lesser
term .
(2) [Subject
to the provisions of the Act, the Scheme,] [the Pension] Scheme or
the Insurance Scheme] may provide that any person who contravenes,
or makes default in complying with any of the provisions thereof
shall be punishable with imprisonment for a term which may extend to
[one year, or with fine which may extend to four thousand rupees, or
with both].]
(2A) Whoever
contravenes or makes default in complying with any provision of this
Act or of any condition subject to which exemption was granted under
section 17 shall, if no other penalty is elsewhere provided by or
under this Act for such contravention or non-compliance, be
punishable with imprisonment which may extend to [six months, but
which shall not be less than one month, and shall also be liable to
fine which may extend to five thousand rupees].]
14A. Offences by
companies
(1) If the
person committing offence under this Act, [the Scheme [, the
[Pension] Scheme or the Insurance Scheme]] is a company, every
person, who at the time the offence was committed was in charge of,
and was responsible to, the company for the conduct of the business
of the company, as well as the company, shall be deemed to be guilty
of the offence and shall be liable to be proceeded against and
punished accordingly:
PROVIDED that
nothing contained in this sub-section shall render any such person
liable to any punishment, if he proves that the offence was
committed without his knowledge or that he exercised all due
diligence to prevent the commission of such offence.
(2)
Notwithstanding anything contained in sub-section (1), where an
offence under this Act [, the Scheme, [the [Pension] Scheme or the
Insurance Scheme]] has been committed by a company and it is proved
that the offence has been committed with the consent or connivance
of, or is attributable to, any neglect on the part of, any director
or manager, secretary or other officer of the company, such
director, manager, secretary or other officer shall be deemed to be
guilty of that offence and shall be liable to be proceeded against
and punished accordingly.
Explanation: For the
purposes of this section
(i) "company"
means any body corporate and includes a firm and other association
of individuals; and
(ii)
"director", in relation to a firm, means a partner in the
firm.]
14AA. Enhanced punishment in
certain cases after previous conviction
Whoever,
having been convicted by a court of an offence punishable under this
Act, the Scheme, [, the [Pension] Scheme or the Insurance Scheme],
commits the same offence shall be subject for every such subsequent
offence to imprisonment for a term which may extend to
150[five years, but which shall not be less than two
years, and shall also be liable to a fine of twenty-five thousand
rupees.]
14AB. Certain offences to be
cognizable
(1)
Notwithstanding anything contained in [Code of Criminal Procedure,
1898 (5 of 1898)], an offence relating to default in payment of
contribution by the employer punishable under this Act shall be
cognizable.
14AC. Cognizance and trial of
offences
(1) No court
shall take cognizance of any offence punishable under this Act, the
Scheme or, [the [Pension] Scheme or the Insurance Scheme], except on
a report in writing of the facts constituting such offence made with
the previous sanction of the Central Provident Fund Commissioner or
such other officer as may be authorised by the Central Government,
by notification in the Official Gazette, in this behalf, by an
inspector appointed under section 13.
(2) No court
inferior to that of a Presidency Magistrate or a Magistrate of the
first class shall try any offence under this Act or the Scheme or
148[, the 127[Pension] Scheme or the Insurance
Scheme.]]
14B. Power to recover
damages
Where an
employer makes default in the payment of any contribution to the
Fund 151[, the [Pension] Fund or the Insurance Fund] or
in the transfer of accumulations required to be transferred by him
under sub-section (2) of section 15 152[or sub-section
(5) of section 17] or in the payment of any charges payable under
any other provision of this Act or of 153[any Scheme or
Insurance Scheme] or under any of the conditions specified under
section 17, the Central Provident Fund Commissioner or such other
officer as may be authorised by the Central Government, by
notification in the Official Gazette, in this behalf] may recover
from the employer by way of penalty such damages, not exceeding the
amount of arrears, as may be specified in the Scheme:]
PROVIDED that
before levying and recovering such damages, the employer shall be
given a reasonable opportunity of being heard:]
PROVIDED
FURTHER that the Central Board may reduce or waive the damages
levied under this section in relation to an establishment which is a
sick industrial company and in respect of which Scheme for
rehabilitation has been sanctioned by the Board for Industrial and
Financial Reconstruction established under section 4 of the Sick
Industrial Companies (Special Provisions) Act, 1985 (1 of 1986),
subject to such terms and conditions as may be specified in the
Scheme.]
14C. Power of court to make
orders
(1) Where an
employer is convicted of an offence of making default in the payment
of any contribution to the Fund 157[, the
127[Pension] Fund or the Insurance Fund] or in the
transfer of accumulations required to be transferred by him under
sub-section (2) of section 15 or sub-section (5) of section 17, the
court may, in addition to awarding any punishment, by order in
writing require him within a period specified in the order (which
the court may, if it thinks fit and on application in that behalf,
from time to time, extend), to pay the amount of contribution or
transfer the accumulations, as the case may be, in respect of which
the offence was committed.
(2) Where an
order is made under sub-section (1), the employer shall not be
liable under this Act in respect of the continuation of the offence
during the period or extended period, if any, allowed by the court,
but if, on the expiry of such period or extended period, as the case
may be, the order of the court has not been fully complied with, the
employer shall be deemed to have committed a further offence and
shall be punished with imprisonment in respect thereof under section
14 and shall also be liable to pay fine which may extend to one
hundred rupees for every day after such expiry on which the order
has not been complied with.]
15. Special provisions relating
to existing provident funds
(1) Subject to
the provisions of section 17, every employee who is a subscriber to
any provident fund of 159[an establishment] to which this
Act applies shall, pending the application of a Scheme to] the
159[establishment] in which he is employed, continue to
be entitled to the benefits accruing to him under the provident
fund, and the provident fund shall continue to be maintained in the
same manner and subject to the same conditions as it would have been
if this Act had not been passed.
(2) On the
application of any Scheme to 159[establishment], the
accumulations in any provident fund of the
159[establishment], standing to the credit of the
employees who become members of the fund established under the
Scheme] shall, notwithstanding anything to the contrary contained in
any law for the time being in force or in any deed or other
instrument establishing the provident fund but subject to the
provisions, if any, contained in the Scheme, be transferred to the
Fund established under the Scheme, and shall be credited to the
accounts of the employees entitled thereto in the Fund.
16. Act not to apply to certain
establishments
(1) This Act
shall not apply
(a) to any
establishment registered under the Co-operative Societies Act, 1912,
or under any other law for the time being in force in any State
relating to co-operative societies, employing less than fifty
persons and working without the aid of power, or
(b) to any
other establishment belonging to or under the control of the Central
Government or a State Government and whose employees are entitled to
the benefit of Contributory provident fund or old age pension in
accordance with any scheme or rule framed by the Central Government
or the State Government governing such benefits, or
(c) to any
other establishment set up under any Central, Provincial or State
Act and whose employees are entitled to the benefits of contributory
provident fund or old age pension in accordance with any scheme or
rule framed under that Act governing such benefits.
(2) If the
Central Government is of opinion that having regard to the financial
position of any class of [establishments] or other circumstances of
the case, it is necessary or expedient so to do, it may, by
notification in the Official Gazette, and subject to such conditions
as may be specified in the notification, exempt [, whether
prospectively or retrospectively,] that class of [establishments]
from the operation of this Act or such period as may be specified in
the notification.]
16A. Authorising certain
employers to maintain provident fund accounts
(1) The
Central Government may, on an application made to it in this behalf
by the employer and the majority of employees in relation to an
establishment employing one hundred or more persons, authorise the
employer, by an order in writing, to maintain a provident fund
account in relation to the establishment, subject to such terms and
conditions as may be specified in the Scheme:
PROVIDED that
no authorisation shall be made under this sub-section if the
employer of such establishment had committed any default in the
payment of provident fund contribution or had committed any other
offence under this Act during the three years immediately preceding
the date of such authorisation.
(2) Where an
establishment is authorised to maintain a provident fund account
under sub-section (1), the employer in relation to such
establishment shall maintain such account, submit such return,
deposit the contribution in such manner, provide for such facilities
for inspection, pay such administrative charges, and abide by such
other terms and conditions, as may be specified in the Scheme.
(3) Any
authorisation made under this section may be cancelled by the
Central Government by order in writing if the employer fails to
comply with any of the terms and conditions of the authorisation or
where he commits any offence under any provision of this Act:
PROVIDED that
before cancelling the authorisation, the Central Government shall
give the employer a reasonable opportunity of being heard.]
17. Power to exempt
(1) The
appropriate government may, by notification in the Official Gazette,
and subject to such conditions as may be specified in the
notification, [exempt, whether prospectively or retrospectively,
from the operation] of all or any of the provisions of any
Scheme:
(a) any
[establishment] to which this Act applies if, in the opinion of the
appropriate government, the rules of its provident fund with respect
to the rates of contribution are not less favourable than those
specified in section 6 and the employees are also in enjoyment of
other provident fund benefits which on the whole are not less
favourable to the employees than the benefits provided under this
Act or any Scheme in relation to the employees in any other
[establishment] of similar character, or
(b) any
[establishment] if the employees of such
166[establishment] are in enjoyment of benefits in the
nature of provident fund, pension or gratuity and the appropriate
government is of opinion that such benefits, separately or jointly,
are on the whole not less favourable to such employees than the
benefits provided under this Act or any Scheme in relation the
employees in any other 166[establishment] of a similar
character.
[PROVIDED that
no such exemption shall be made except after consultation with the
Central Board which on such consultation shall forward its views on
exemption to the appropriate government within such time limit as
may be specified in the Scheme.]
(1A) Where an
exemption has been granted to an establishment under clause (a) of
sub-section (1),
(a) the
provisions of sections 6, 7A, 8 and 14B shall, so far as may be,
apply to the employer of the exempted establishment in addition to
such other conditions as may be specified in the notification
granting such exemption, and where such employer contravenes, or
makes default in complying with any of the said provisions or
conditions or any other provision of this Act, he shall be
punishable under section 14 as if the said establishment had not
been exempted under the said clause (a);
(b) the
employer shall establish a Board of Trustees for the administration
of the Provident Fund consisting of such number of members as may be
specified in the Scheme;
(c) the terms
and conditions of service of members of the Board of Trustees shall
be such as may be specified in the Scheme;
(d) the Board
of Trustees constituted under clause (b) shall-
(i) maintain
detailed accounts to show the contributions credited, withdrawals
made and interest accrued in respect of each employee;
(ii) submit
such returns to the Regional Provident Fund Commissioner or any
other officer as the Central Government may direct from time to
time;
(iii) invest
the provident fund monies in accordance with the directions issued
by the Central Government from time to time;
(iv) transfer,
where necessary, the provident fund account of any employee;
and
(v) perform
such other duties as may be specified in the Scheme.
(1B) Where the
Board of Trustees established under clause (b) of sub-section (1A)
contravenes, or makes default in complying with, any provisions of
clause (d) of that sub-section, the Trustees of the said Board shall
be deemed to have committed an offence under sub-section (2A) of
section 14 and shall be punishable with the penalties provided in
that sub-section.
(1C) The
appropriate government may,by notification in the Official
Gazette,and subject to the condition on the pattern of investment of
pension fund and such other conditions as may be specified therein,
exempt any establishment or class of establishments from the
operation of the Pension Scheme if the employees of such
establishment or class of establishments are either members of any
other pension scheme or propose to be members of such pension
scheme, where the pensionary benefits are at par or more favourable
than the Pension Scheme under this Act,]
(2) Any Scheme
may make provision for exemption of any person or class of persons
employed in any [establishment] to which the Scheme applies from the
operation of all or any of the provisions of the Scheme, if such
person or class of persons is entitled to benefits in the nature of
provident fund, gratuity or old age pension and such benefits,
separately or jointly, are on the whole not less favourable than the
benefits provided under this Act or the Scheme:
PROVIDED that
no such exemption shall be granted in respect of a class of persons
unless the appropriate government is of opinion that the majority of
persons constituting such class desire to continue to be entitled to
such benefits.
(2A) The
Central Provident Fund Commissioner may, if requested so to do by
the employer, by notification in the Official Gazette, and subject
to such conditions as may be specified in the notification, exempt,
whether prospectively or retrospectively, any establishment from the
operation of all or any of the provisions of the Insurance Scheme,
if he is satisfied] that the employees of such establishment are,
without making any separate contribution or payment of premium, in
enjoyment of benefits in the nature of life insurance, whether
linked to their deposits in provident fund or not, and such benefits
are more favourable to such employees than the benefits admissible
under the Insurance Scheme.
(2B) Without
prejudice to the provisions of sub-section (2A), the Insurance
Scheme may provide for the exemption of any person or class of
persons employed in any establishment and covered by that Scheme
from the operation of all or any of the provisions thereof, if the
benefits in the nature of life insurance admissible to such person
or class of persons are more favourable than the benefits provided
under the Insurance Scheme.]
(3) Where in
respect of any person or class of persons employed in an
establishment an exemption is granted under this section from the
operation of all or any of the provisions of any scheme (whether
such exemption has been granted to the establishment wherein such
person or class of persons is employed or to the person or class of
persons as such), the employer in relation to such
establishment-
(a) shall, in
relation to the provident fund, pension and gratuity to which any
such person or class of persons is entitled, maintain such accounts,
submit such returns, make such investment, provide for such
facilities for inspection and pay such inspection charges, as the
Central Government may direct;
(b) shall not,
at any time after the exemption, without the leave of the Central
Government, reduce the total quantum of benefits in the nature of
pension, gratuity or provident fund to which any person or class of
persons was entitled at the time of the exemption; and
(c) shall,
where any such person leaves his employment and obtains
re-employment in another establishment to which this Act applies,
transfer within such time as may be specified in this behalf by the
Central Government, the amount of accumulations, to the credit of
that person in the provident fund of the establishment left by him
to the credit of that person's account in the provident fund of the
establishment in which he is re-employed or, as the case may be, in
the fund established under the Scheme applicable to the
establishment.]
(3A) Where, in
respect of any person or class of persons employed in any
establishment, an exemption is granted under sub-section (2A) or
sub-section (2B) from the operation of all or any of the provisions
of the Insurance Scheme (whether such exemption is granted to the
establishment wherein such person or class of persons is employed or
to the person or class of persons as such), the employer in relation
to such establishment:
(a) shall, in
relation to the benefits in the nature of life insurance, to which
any such person or class of persons is entitled, or any insurance
fund, maintain such accounts, submit such returns, make such
investments, provide for such facilities for inspection and pay such
inspection charges, as the Central Government may direct;
(b) shall not,
at any time after the exemption without the leave of the Central
Government, reduce the total quantum of benefits in the nature of
life insurance to which any such person or class of persons was
entitled immediately before the date of the exemption;
(4) any
exemption granted under this section may be cancelled by the
authority which granted it, by order in writing, if an employer
fails to comply, -
(a) in the
case of an exemption granted under sub-section (1), with any of the
conditions imposed under that sub-section [or sub-section(1A)or with
any of the provisions of the sub-section (3);
(aa) in the
case of an exemption granted under sub-section (1C), with any of the
conditions imposed under that sub-section; and]
(b) in the
case of an exemption granted under sub-section (2), with any of the
provisions of sub-section (3);
(c) in the
case of an exemption granted under sub-section (2A), with any of the
conditions imposed under that sub-section or with any of the
provisions of sub-section (3A);
(d) in the
case of an exemption granted under sub-section (2B), with any of the
provisions of sub-section (3A).]
[(5) Where any
exemption granted under sub-section (1), sub-section [(1C)],
[sub-section (2), sub-section (2A) or sub-section (2B)] is
cancelled, the amount of accumulations to the credit of every
employee to whom such exemption applied, in the provident fund, [the
[Pension] Fund or the Insurance Fund] of the establishment in which
he is employed [together with any amount forfeited from the
employer's share of contribution to the credit of the employee who
leaves the employment before the completion of the full period of
service] shall be transferred within such time and in such manner as
may be specified in the Scheme or the [Pension] Scheme [or the
Insurance Scheme] to the credit of his account in the Fund or the
[Pension] Fund [or the Insurance Fund], as the case may be.]
(6) Subject to
the provisions of sub-section [(1C)], the employer of an exempted
establishment to which the provisions of the [Pension] Scheme apply,
shall, notwithstanding any exemption granted under sub-section (1)
or sub-section (2), pay to the [Pension] Fund such portion of the
employers contribution
to its provident fund within such time and in such manner as
may be specified in the 180[Pension] Scheme.]
17A. Transfer of
accounts
(1) Where an
employee employed in an establishment to which this Act applies
leaves his employment and obtains re-employment in another
establishment to which this Act does not apply, the amount of
accumulations to the credit of such employee in the Fund, or as the
case may be, in the provident fund of the establishment left by him
shall be transferred, within such time as may be specified by the
Central Government in this behalf, to the credit of his account in
the provident fund of the establishment in which he is re-employed,
if the employee so desires and the rules in relation to that
provident fund permit such transfer.
(2) Where an
employee employed in an establishment to which this Act does not
apply leaves his employment and obtains re-employment in another
establishment to which this Act applies, the amount of accumulations
to the credit of such employee in the provident fund of the
establishment left by him may, if the employee so desires and the
rules in relation to such provident fund permit, be transferred to
the credit of his account in the Fund or as the case may be, in the
provident fund of the establishment in which he is
re-employed.]
17AA. Act to have effect
notwithstanding anything contained in Act 31 of 1956
The provisions
of this Act shall have effect notwithstanding anything inconsistent
therewith contained in the Life Insurance Act, 1956.]
17B. Liability in case of
transfer of establishment
Where an
employer, in relation to an establishment, transfers that
establishment in whole or in part, by sale, gift, lease or license
or in any other manner whatsoever, the employer and the person to
whom the establishment is so transferred shall jointly and severally
be liable to pay the contribution and other sums due from the
employer under any provision of this Act or the Scheme or the
127[Pension] Scheme, as the case may be, in respect of
the period up to the date of such transfer:
PROVIDED that
the liability of the transferee shall be limited to the value of the
assets obtained by him by such transfer.]
18. Protection of action taken in
good faith
No suit,
prosecution of other legal proceeding shall lie against the Central
Government, a State Government, the Presiding Officer of a Tribunal,
any authority referred to in section 7A, an Inspector or any other
person for anything which is in good faith done or intended to be
done in pursuance of this Act, the Scheme, the
127[Pension] or the Insurance Scheme.
18A. Presiding officer and other
officers to be public servants
The Presiding
Officer of a Tribunal, its officers and other employees, the
authorities referred to in section 7A and every Inspector shall be
deemed to be public servants within the meaning of section 21 of
Indian Penal Code (45 of 1860).]
19. Delegation of
powers
The
appropriate government may direct that any power or authority or
jurisdiction exercisable by it under this Act, the Scheme
183[, the 127[Pension] Scheme or the Insurance
Scheme] shall, in relation to such matters and subject to such
conditions, if any, as may be specified in the direction, be
exercisable also:
(a) where the
appropriate government is the Central Government, by such officer or
authority subordinate to the Central Government or by the State
Government or by such officer or authority sub-ordinate to the State
Government, as may be specified in the notification; and
(b) where the
appropriate government is a State Government, by such officer or
authority subordinate to the State Government as may be specified in
the notification.]
20. Power of Central Government
to give directions
The Central
Government may, from time to time, give such directions to the
Central Board as it may think fit for the efficient administration
of this Act and when, any such direction is given, the Central Board
shall comply with such direction.
21. Power to make
rules
(1) The
Central Government may, by notification in the Official Gazette,
make rules to carry out the provisions of this Act.
(2) Without
prejudice to the generality of the foregoing power, such rules may
provide for all or any of the following matters, namely:
(a) the salary
and allowances and other terms and conditions of service of the
Presiding Officer and the employees of a Tribunal;
(b) the form
and the manner in which, and the time within which, an appeal shall
be filed before a Tribunal and the fees payable for filing such
appeal;
(c) the manner
of certifying the copy of the certificate, to be forwarded to the
Recovery Officer under sub-section (2) of section 8C; and
(d) any other
matter, which has to be, or may be, prescribed by rules under this
Act.
(3) Every rule
made under this Act shall be laid, as soon as may be after it is
made, before each House of Parliament, while it is in session, for a
total period of thirty days which may be comprised in one session or
in two or more successive sessions, and if, before the expiry of the
session immediately following the session or the successive sessions
aforesaid, both Houses agree in making any modification in the rule
or both Houses agree that the rule should not be made, the rule
shall thereafter have effect only in such modified form or be of no
effect, as the case may be; so, however, that any such modification
or annulment shall be without prejudice to the validity of anything
previously done under that rule.
22. Power to remove
difficulties
(1) If any
difficulty arises in giving effect to the provisions of this Act, as
amended by the Employees' Provident Funds and Miscellaneous
Provisions (Amendment) Act, 1988, the Central Government may, by
order published in the Official Gazette, make such provisions, not
inconsistent with the provisions of this Act as appear to it to be
necessary or expedient for the removal of the difficulty:
PROVIDED that
no such order shall be made after the expiry of a period of three
years from the date on which the said Amendment Act receives the
assent of the President.
(2) Every
order made under this section shall, as soon as may be after it is
made, be laid before each House of Parliament.]
SCHEDULE I
(See
sections 2(i) and 4)
Any industry
engaged in the manufacture
of any of the following, namely:
Cement.
Cigarettes.
Electrical,
mechanical or general engineering products.
Iron and
steel.
Paper.
Textiles (made
wholly or in part of cotton or wool or jute or silk, whether natural
or artificial).
1.
Matches.
2. Edible oils
and fats.
3. Sugar.
4. Rubber and
rubber products.
5.
Electricity, including the generation, transmission and distribution
thereof.
6. Tea.
7. Printing
[other than printing industry relating to newspaper establishments
as defined in the Working Journalists (Conditions of Service) and
Miscellaneous Provisions Act, 1955 (45 of 1955), including the
process of composing types for printing, printing by letter-press,
lithography, photogravure or other similar process or
bookbinding.]
8. Glass.
9. Stone-ware
pipes.
10. Sanitary
wares.
11. Electrical
porcelain insulators of high and low tension.
12.
Refractories.
13.
Tiles.]
1. Heavy and
fine chemicals, including:
(i)
Fertilisers,
(ii)
Turpentine,
(iii)
Resin,
(iv) Medical
and pharmaceutical preparations,
(v) Toilet
preparations,
(vi)
Soaps,
(vii)
Inks,
(viii)
Intermediates, dyes, colour lacs and toners,
(ix) Fatty
acids, and
(x) Oxygen,
acetylene and carbon-dioxide gases industry.]
2.
Indigo.
3. Lac
including shellac.
4. Non-edible,
vegetable and animal oils and fats.]
[Mineral oil
refining industry.]
[(i)
Industrial and power alcohol industry; and
(ii) Asbestos
cement sheets industry.]
191[Biscuit-making industry including composite
units making biscuits and products such as bread, confectionery and
milk and milk powder.]
Mica
industry.]
Plywood
industry.]
Automobile
repairing and servicing industry.]
1. Rice
milling.
2. Flour
milling
3. Dal
milling.]
Starch
industry.]
1. Petroleum
or natural gas exploration, prospecting, drilling or
production.
2. Petroleum
or natural gas refining.]
Leather and
leather products industry.]
1. Stone-ware
jars.
2.
Crockery.]
The fruit and
vegetable preservation industry, that is to say, any industry which
is engaged in the preparation or production of any of the following
articles, namely:
(i) canned and
bottled fruits, juices and pulps,
(ii) canned
and bottled vegetables,
(iii) frozen
fruits and vegetables,
(iv) jams,
jellies and marmalades,
(v) tomato
products, ketchups and sauces,
(vi) squashes,
crushes, cordials and ready-to-serve beverages or any other
beverages containing fruit juice or fruit pulp,
(vii)
preserved, canned and crystallised fruits and peels,
(viii)
chutneys,
(ix) any other
unspecified item relating to the preservation or canning of fruits
and vegetables.]
[Cashewnut
industry.]
[Confectionery
industry.]
[1.
Buttons.
2.
Brushes.
3. Plastic and
plastic products.
4. Stationery
products.]
[The aerated
water industry, that is to say, any industry engaged in the
manufacture of aerated water, soft drinks or carbonated water.]
[The
distilling and rectifying of spirits (not falling under industrial
and power alcohol) and blending of spirits industry.]
[The paint and
varnish industry.]
[Bone crushing
industry.]
[Pickers
industry.]
[Milk and milk
products industry.]
[Non-ferrous
metals and alloys in the form of ingots industry.]
[Bread
industry.]
[Stemming or
re-drying of tobacco leaf industry, that is to say, any industry
engaged in the stemming, re-drying, handling, sorting, grading or
packing of tobacco leaf.]
[Agarbattee
(including dhoop and dhoopbattee) industry.]
[Coir
(excluding the spinning sector) industry.]
[Tobacco
industry, that is to say, any industry engaged in the manufacture of
cigars, zarda, snuff, quivam and guraku from tobacco.]
[Paper
products industry.]
[Licensed salt
industry, that is to say, any industry engaged in the manufacture of
salt for which a license is necessary and which has land not less
than 4.05 hectares.]
[Linoleum
industry and indoleum industry.]
[Explosive
industry.]
[Jute bailing
or pressing industry.]
[Fire-works
and percussion cap works industry.]
[Tent making
industry.]
[Ferro-manganese industry.]
[Ice or
ice-cream industry.]
[Winding of
thread and yarn reeling industry.]
[Cotton
ginning, baling and pressing industry.]
[Katha making
industry.]
[Beer
manufacturing industry, that is to say, any industry engaged in the
manufacture of the product of alcoholic fermentation of a mash in
potable water of malted barley and hops, or of hops concentrated
with or without the addition of other malted or unmalted cereals or
other carbohydrate preparations.]
[Beedi
industry, that is to say, any industry engaged in manufacture of
beedies.]
[Ferro-chrome
industry.]
[Diamond
cutting industry.]
[Myrobalan
extract powder, myrobalan extract solid and vegetable tannin blended
extract industries.]
[Brick
industry.]
[All
industries based on asbestos as principal raw material.]
[Industries
manufacturing iron ore pellets.]
[Explanation: In this
Schedule, without prejudice to the ordinary meaning of the
expressions used therein,:
(a) the
expression "Electrical, mechanical or general engineering products"
includes :
(1) machinery
and equipment for the generation, transmission, distribution or
measurement of electrical energy and motors including cables and
wires,
(2)
telephones, telegraph and wireless communication apparatus,
(3) electric
lamps (not including glass bulbs),
(4) electric
fans and electrical domestic appliances,
(5) storage
and dry batteries,
(6) radio
receivers and sound reproducing instruments,
(7) machinery
used in industry (including textile machinery) other than electrical
machinery and machine tools,
(8) boilers
and prime movers, including internal combustion engines, marine
engines and locomotives,
(9) machines
tools, that is to say, metal and wood working machinery,
(10) grinding
wheels,
(11)
ships
(12)
automobiles and tractors,
(13) bolts,
nuts and rivets,
(14)
power-driven pumps,
(15)
bicycles,
(16) hurricane
lanterns,
(17) sewing
and knitting machines,
(18)
mathematical and scientific instruments,
(19) products
of metal rolling and re-rolling,
(20) wires,
pipes, tubes and fittings,
(21) ferrous
and non-ferrous castings,
(22) safes,
vaults and furniture made of iron and steel or steel alloys,
(23) cutlery
and surgical instruments,
(24) drums and
containers,
(25) parts and
accessories of products specified in items 1 to 24;
(b) the
expression 'iron and steel' includes pig iron, ingots, blooms,
billets and rolled or re-rolled products into basic forms and tool
and alloy steel;
(c) the
expression 'paper' includes pulp, paperboard and straw-board;
(d) the
expression 'textiles' includes the products of carding, spinning,
weaving, finishing and dyeing yarn and fabrics, printing, knitting
and embroidering.]
SCHEDULE II : MATTERS
FOR WHICH PROVISION MAY BE MADE IN A SCHEME
[See
section 5(1B)]
1. The
employees or class of employees who shall join the Fund, and the
conditions under which employees may be exempted from joining the
Fund or from making any contribution.
2. The time
and manner in which contribution shall be made to the Fund by
employers and by, or on behalf of, employees, [whether employed by
him directly or by or through contractor)], the contributions which
an employee may, if he so desires, make under section 6, and the manner in
which such contributions may be recovered.
[2A. The
manner in which employees' contribution may be recovered by
contractors from employees employed by or through such
contractors.]
3. The payment
by the employer of such sums of money as may be necessary to meet
the cost of administering the Fund and the rate at which and the
manner in which the payment shall be made.
238[4. The constitution of any committee for
assisting any Board of Trustees.
5. The opening
of regional and other offices of any Board of Trustees.]
6. The manner
in which accounts shall be kept, the investment of moneys belonging
to the Fund in accordance with any directions issued or conditions
specified by the Central Government, the preparation of the budget,
the audit of accounts and the submission of reports to the Central
Government or to any specified State Government.
7. The
conditions under which withdrawals from the Fund may be permitted
and any deduction or forfeiture may be made and the maximum amount
of such deduction or forfeiture.
8. The
fixation by the Central Government in consultation with the board of
trustees concerned of the rate of interest payable to members.
9. The form in
which an employee shall furnish particulars about himself and his
family whenever required.
10. The
nomination of a person to receive the amount standing to the credit
of a member after his death and the cancellation or variation of
such nomination.
11. The
registers and records to be maintained with respect to employees and
the returns to be furnished by employers 152[or
contractors].
12. The form
or design of any identity card, token or disc for the purpose of
identifying any employee, and for the issue, custody and replacement
thereof.
13. The fees
to be levied for any of the purposes specified in this
Schedule.
14. The
contraventions or defaults which shall be punishable under
sub-section (2) of section 14.
15. The
further powers, if any, which may be exercised by Inspectors.
16. The manner
in which accumulations in any existing provident fund shall be
transferred to the Fund under section 15, and the mode of valuation
of any assets which may be transferred by the employers in this
behalf.
17. The
conditions under which a member may be permitted to pay premia on
life insurance, from the Fund.
18. Any other
matter 152[which is to be provided for in the Scheme or ]
which may be necessary or proper for the purpose of implementing the
Scheme.]
SCHEDULE III :
MATTERS FOR WHICH PROVISION MAY BE MADE IN THE PENSION SCHEME
[See
Section 6A(5)]
1. The
employees or class of employees to whom the Pension Scheme shall
apply.
2. The time
within which the employees who are not members of the
127[Pension] Scheme under section 6A as it stood before
the commencement of the Employees Provident Funds and Miscellaneous
Provisions (Amendment) Act, 1996 (hereinafter, in this Schedule,
referred to as the amending Act) shall opt for the Pension
Scheme.
3. The portion
of employer's contribution to the Provident Fund which shall be
credited to the Pension Fund and the manner in which it is
credited.
4. The minimum
qualifying service for being eligible for pension and the manner in
which the employees may be granted the benefits of their past
service under section 6A as it stood before the commencement of the
amending Act.
5. The
regulation of the manner in which and the period of service for
which no contribution is received.
6. The manner
in which employees' interest will be protected against default in
payment of contribution by the employer.
7. The manner
in which the accounts of the Pension Fund shall be kept and
investment of moneys belonging to Pension Fund to be made subject to
such pattern of investment as may be determined by the Central
Government.
8. The form in
which an employees shall furnish particulars about himself and the
members of his family whenever required.
9. The forms,
registers and records to be maintained in respect of employees,
required for the administration of the Pension Scheme.
10. The scale
of pension and pensionary benefits and the conditions relating to
grant of such benefits to the employees.
11. The manner
in which the exempted establishments have to pay contribution
towards the Pension Scheme and the submission of returns relating
thereto.
12. The mode
of disbursement of pension and arrangements to be entered into with
such disbursing agencies as may be specified for the purpose.
13. The manner
in which the expenses for administering the Pension Scheme will be
met from the income of the Pension Fund.
14. Any other
matter which is to be provided for in the Pension Scheme or which
may be necessary or proper for the purpose of implementation of the
Pension Scheme.]
171[SCHEDULE IV: MATTERS TO BE PROVIDED FOR IN THE
EMPLOYEES' DEPOSIT LINKED INSURANCE SCHEME
[See
section 6C]
1. The
employees or class of employees who shall be covered by the
Insurance Scheme.
2. The manner
in which the accounts of the Insurance Fund shall be kept and the
investment of moneys belonging to the Insurance Fund subject to such
pattern of investment as may be determined, by order, by the Central
Government.
3. The form in
which an employee shall furnish particulars about himself and the
members of his family whenever required.
4. The
nomination of a person to receive the insurance amount due to the
employee after his death and the cancellation or variation of such
nomination.
5. The
registers and records to be maintained in respect of employees, the
form or design of any identity card, token or disc for the purpose
of identifying any employee or his nominee or member of his family
entitled to receive the insurance amount.
6.
240[The scales of insurance benefits and conditions
relating to the grant of such benefits to the employees.]
131[***]
8. The manner
in which the amount due to the nominee or the member of the family
of the employee under the Scheme is to be paid including a provision
that the amount shall not be paid otherwise than in the form of a
deposit in a saving bank account, in the name of such nominee or
member of family, in any corresponding new bank specified in the
First Schedule to the Banking Companies (Acquisition and Transfer of
Undertakings) Act, 1970 (5 of 1970).
9. Any other matter which is to be provided for in the Employees' Deposit Linked Insurance Scheme or which may be necessary or proper for the purpose of implementing that Scheme.]