(Act
No. 19 of 1952)
4th
March, 1952
An Act to provide for the institution of
provident funds, pension fund and deposit-linked insurance fund for employees
in factories and other establishments.
Be it
enacted by Parliament as follows:-
1. Short title, extent and application.- (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 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
section16, 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 oil-filed 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 (63 of 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 (52 of 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 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 the 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 Scheme framed 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 Funds scheme framed under section 5;
(l1)
“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.
Establishments 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
3.
Power to apply 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.
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 purpose 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 Fund 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 Schedule 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, by
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
organisations 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
organisations 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 6 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, the 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;
(e) three
persons representing the employees elected by the Central Board from amongst
the persons referred to in clause e 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 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, 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 Pension Scheme and the Insurance Scheme.
(4) No
appointment to the post of the Central Provident Fund Commissioner or an
Additional Central Provident Fund Commissioner or a Financial Adviser 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, of
(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, 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
clause 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 service of officers and employees of a 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 Pension Scheme and the Insurance Scheme.
6.
Contributions and matters which may be provided for in Schemes. – The
contribution which shall be paid by the employer to the Fund shall be
ten percent. 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 employee‟s 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 exceeding ten percent 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 percent”, at both the places where
they occur, the words “12 percent” 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 rounding off of such
fraction to the nearest rupee, half of a rupee, or quarter of a rupee.
Explanation
I –
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
II.
– For the purposes of this section, “retaining allowance” means 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 as on the date of 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) 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 the scheme.
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 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 into 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 the 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 provision 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 modification 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 that 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 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 (5 of 1908), for trying a suit
in respect of the following matters, namely:-
(a) enforcing the
attendance of any person or examining him on oath:
(c) receiving
evidence on affidavit;
(d) issuing
commissions for the examination of witnesses,
and
any such inquiry 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 45 of 1960.
(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 inquiry 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 parte 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
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 a review, he shall reject the application.
(4) Where the officer is
of opinion that the application for review should be granted, be 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 orders –
(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 clause 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
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 the 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 all 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 the 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-section4, of section I, or section3, 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 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.
7 – J.
Procedure of Tribunals. – (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 (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 made 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 Tribunals. – All
applications which are pending before the Central Government under section 19A,
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. 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 the appropriate
Government under any provision of this Act or under any of the conditions
specified under section 17 or in respect of the contribution payable by him
towards the Pension Scheme under the said section 17,
may, if the amount is
in arrear, be recovered in the manner specified in section 8B to 8G.
8A.
Recovery of moneys by employers and contractors.
(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
expressions “dearness allowance” and “retaining allowance” shall have the same
meanings as in section 6.
(1)
Where any amount is in arrear under section8, 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 recovery 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,
notwithstanding 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 situated; or
(b) resides or any
movable or immovable property of the establishment or the employer is situated.
(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
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 a 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 orders
withdrawing or canceling 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 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.
(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 (5 of 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 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
9.
Fund to be recognised under Act 11 of 1922.
For the purpose of the Indian Income-tax Act, 1922 (11 of
1922), the Fund shall be deemed to be a recognised provident fund within the
meaning of Chapter IXA 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) amount
standing to the credit of any member in 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 (3 of 1909) nor any receiver appointed under the
Provincial Insolvency Act, 1920 (5 of 1920), shall be entitled to 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 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 pension or any other amount, payable under the Pension Scheme
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 insolvent 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, or under any of the conditions specified under section 17,
shall
where the liability therefore 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 (3 of 1909) or under
section 61 of the Provincial Insolvency Act, 1920 (5 of 1920) or under section
530 of the Companies Act, 1956 (1 of 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 employees 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, 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 section
8A, his agent or servant or any other person found in charge of the
establishment or any premises connected therewith or whom the Inspector has
reasonable cause to believe to be or to have been, an employee in the
establishment;
(d) Make
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 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
establishment to which the Pension Scheme applies, exercise all or any of the
powers conferred on him under clause a, b, clause c, or clause d sub-section 2.
(2B)
The provisions of the Code of Criminal Procedure, 1898 (5 of 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 or seizure made
under the authority of a warrant issued under section 98 of the said Code.
(3)
***
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 paragraph 38 of the Scheme in so far
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 a fine of ten thousand rupees in case of
default in payment of the employees‟ contribution which has been deducted by
the employer from the employees‟ wages;
(b) which shall not be
less than six months and a 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
judgment, 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 the 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
judgment, impose a sentence of imprisonment for a lesser term.
(2)
Subject to the provisions of this 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 an offence under this Act, the Scheme or the Pension
Scheme or the Insurance Scheme is a company, every person who at the time the
offence was committed was incharge 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 or 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, -
(a) “Company”
means any body corporate and includes a firm and other association of
individuals; and
(b) “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 or 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 - Notwithstanding anything contained in the
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 a 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 or 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 an 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 (2 of
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 to do so, 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 for 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 a 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 to 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
provision 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.
(IB)
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.
(IC)
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 such person or class of persons was
entitled at the time of 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) or 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.
(c) ***
(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 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 or of an exempted employee of an 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 employer‟s 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 Corporation Act, 1956 (31 of 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 licence 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 or the Insurance
Scheme as the case may be, in respect of the period upto 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 or 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 Pension Scheme 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 the 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, the
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 subordinate 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) or 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.
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