16 September 2019


Judgments

High Court of Calcutta

The Kolkata Municipal Corporation and Ors. Vs. The Union of India and Ors.

MANU/WB/0350/2018

18.05.2018

Labour and Industrial

Pure question of law can be urged at any point of time before any forum provided it does not require any further adjudication of any disputed fact

The Petitioners have primarily challenged the Notification, dated January 8, 2011, issued by the Ministry of Labour and Employment applying the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 to the municipal councils and municipal corporations constituted under Article 243Q (1)(b) and (c) of the Constitution of India and employing 20 or more persons. The principal thrust of the petitioners is that, till the publication of the notification the Act was not applicable to Kolkata Municipal Corporation (Corporation) in view of Section 16 of the Act. The Corporation maintains a schedule of posts which includes the designation and number of posts under each designation of officers and employees constituting the establishment of the Corporation. The Corporation mainly discharges civic services to the municipal area of Kolkata including supply of water, sewerage and drainage, solid waste management, construction and maintenance of streets, so on and so forth. It also discharges other duties as provided in the Kolkata Municipal Corporation Act.

In order to claim exclusion for an establishment from the operation of the Act under Section 16(1)(c) of Employees Provident Funds And Miscellaneous Provisions Act, 1952, two conditions have to be fulfilled, viz., i) it must be set up under any Central, Provincial or State Act and ii) 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. The Corporation does not fulfill the first requirement. It cannot be said that, it is an establishment which has been set up under any Central, Provincial or State Act. It has certainly been constituted by a State Act, namely, Kolkata Municipal Corporation Act, but not set up under the same.

There is always a subtle difference between an establishment being constituted by an Act and set up under an Act. In the present case the earlier Kolkata Municipal Act or the present Kolkata Municipal Corporation Act constituted the Corporation, but it is not an establishment which has been set up under the Act. The legal meaning attached to the word "under" is either 'pursuant to' or 'in terms of'. It can never be said that, the Corporation was either set up pursuant to or in terms of the Kolkata Municipal Corporation Act. The Corporation has been constituted by that Act. There is no scope for granting exclusion to the Corporation under Section 16(1)(c) of the Act as it does not satisfy the criteria for such exclusion.

However, the second point taken by the Petitioners merits a favourable consideration. The impugned notification by which the Act has been sought to be applied to the Corporation specifically says that, in exercise of the powers conferred by Section 1(3)(b) of the Act, the Central Government has specified the municipal councils and municipal corporations constituted under Article 243Q (1)(b) &(c) of the Constitution of India as the class of establishments to which said Act shall apply with effect from the date of publication of the notification in the official gazette. Thus, the class of establishments to which the Act shall apply in terms of the said notification are those which have been or shall be constituted by Article 243Q (1)(b)&(c) of the Constitution of India, and not otherwise.

The present notification seeking to apply the provision of the Act to the municipal councils and municipal corporations constituted under Article 243Q of the Constitution of India, as mentioned in the notification, has no manner of application to the present Corporation. Thus, it cannot be said that, by the impugned notification, the Act has been made applicable to the Corporation.

A Court can also take into cognizance legal issues arising out of the factual conspectus of the case without necessarily requiring the parties to plead the same separately. Even without a formal pleading, a point of law can be taken into cognizance and adjudicated upon by a Court if no denial on fact is necessary. A party is not only entitled to rely on a point of law, he can also take it even before the highest court for the first time. A pure question of law can be urged at any point of time before any forum provided it does not require any further adjudication of any disputed fact.

The Court is satisfied that the Notification cannot be made applicable to the Corporation for the same not being constituted under Article 243Q of the Constitution of India. Refusal to consider this point of law on the technical ground of pleading would have the undesirable effect of driving the Petitioners to a separate litigation which can never be the object of any adjudication. Consequently, all the steps taken by the provident fund authorities pursuant to the Notification are declared to be not sustainable in law and are set aside. The provident fund authorities are directed not to take any further step in connection with the proceeding initiated against the Corporation. The writ petition is allowed.

Tags : Publication Notification Applicability

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