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Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 |
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 section 16 where it appears to the Central Provident Fund Commissioner whether on an application made to him in this behalf or otherwise that the employer and the majority of employees in relation to any establishment have agreed that the provisions of this Act should be made applicable to the establishment he may by notification in the Official Gazette apply the provisions of this Act to that establishment on and from the date of such agreement or from any subsequent date specified in such agreement.
(5) An establishment to which this act applies shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time falls below twenty.
2. Definitions
In this Act unless the context otherwise requires :
(a) “appropriate government” means –
(i) in relation to an establishment belonging to or under the control of the Central Government or in relation to an establishment connected with a railway company a major port a mine or an oil field or a controlled industry or in relation to an establishment having departments or branches in more than one State the Central Government; and
(ii) in relation to any other establishment the State Government;
(aa) “authorised officer” means the Central Provident Fund Commissioner Additional Central Provident Fund Commissioner Deputy Provident Fund Commissioner Regional Provident Fund Commissioner or such other officer as may be authorised by the Central Government by notification in the Official Gazette;
(b) “basic wages” means all emoluments which are earned by an employee while on duty or on leave or on holidays with wages in either case in accordance with the terms of the contract of employment and which are paid or payable in cash to him but does not include :
(i) the cash value of any food concession;
(ii) any dearness allowance (that is to say all cash payments by whatever name called paid to an employee on account of a rise in the cost of living) house-rent allowance overtime allowance bonus commission or any other similar allowance payable to the employee in respect of his employment or of work done in such employment;
(iii) any presents made by the employer;
(c) “contribution” means a contribution payable in respect of a member under a scheme or the contribution payable in respect of an employee to whom the Insurance Scheme applies;
(d) “controlled industry” means any industry the control of which by the Union has been declared by a Central Act to be expedient in the public interest;
(e) “employer” means :
(i) in relation to an establishment which is a factory the owner or occupier of the factory including the agent of such owner or occupier the legal representative of a deceased owner or occupier and where a person has been named as a manager of the factory under clause (f) of sub-section (1) of section 7 of the Factories Act 1948 the person so named; and
(ii) in relation to any other establishment the person who or the authority which has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to a manager managing director or managing agent such manager managing director or managing agent;
(f) “employee” means any person who is employed for wages in any kind of work manual or otherwise in or in connection with the work of an establishment and who gets his wages directly or indirectly from the employer and includes any person
(i) employed by or through a contractor in or in connection with the work of the establishment;
(ii) engaged as an apprentice not being an apprentice engaged under the Apprentices Act 1961 or under the standing orders of the establishment;
(ff) “exempted employee” means an employee to whom a Scheme or the Insurance Scheme as the case may be would but for the exemption granted under section 17 have applied;
(fff) “exempted establishment” means an establishment in respect of which an exemption has been granted under section 17 from the operation of all or any of the provisions of any Scheme or the Insurance Scheme as the case may be whether such exemption has been granted to the 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) Omitted w.e.f. 16-11-1995]
(h) “Fund” means the provident fund established under a Scheme;
(i) “industry” means any industry specified in Schedule I and includes any other industry added to the Schedule by notification under section 4;
(ia) “Insurance Fund” means the Deposit-linked Insurance Fund established under sub-section (2) of section 6C;
(ib) “Insurance Scheme” means the Employees’ Deposited-linked Insurance Scheme framed under sub-section (1) of section 6C;
(ic) “manufacture” or “manufacturing process” means any process for making altering repairing ornamenting finishing packing oiling washing cleaning breaking up demolishing or otherwise treating or adapting any article or substance with a view to its use sale transport delivery or disposal;
(j) “member” means a member of the fund;
(k) “occupier of a factory” means the person who has ultimate control over the affairs of the factory and where the said affairs are entrusted to a managing agent such agent shall be deemed to be the occupier of the factory;
(kA) “Pension Fund” means the Employees’ Pension Fund established under sub-section (2) of section 6A;
(kB) “Pension Scheme” means the Employees’ Pension Scheme framed under sub-section (1) of section 6A;
(ka) “prescribed” means prescribed by rules made under this Act;
(kb) “Recovery Officer” means any officer of the Central Government State Government or the Board of Trustees constituted under section 5A who may be authorised by the Central Government by notification in the Official Gazette to exercise the powers of a Recovery Officer under this Act;
(l) “scheme” means the Employees’ Provident Fund Scheme framed under section 5;
(ll) “superannuation” in relation to an employee who is the member of the Pension Scheme means the attainment by the said employee of the age of fifty-eight years”.
(m) “Tribunal” means the Employees’ Provident Funds Appellate Tribunal constituted under section 7D.
2A. Establishment to include all departments and branches
For the removal of doubts it is hereby declared that where an establishment consists of different departments or has branches where situated in the same place or in different places all such departments or branches shall be treated as parts of the same establishment.
3. Power to apply the Act to an establishment which has a common provident fund with another establishment
Where immediately before this Act becomes applicable to an establishment there is in existence a provident fund which is common to the employees employed in that establishment and employees in any other establishment the Central Government may by notification in the Official Gazette direct that the provisions of this Act shall also apply to such other establishment.
4. Power to add to ScheduleI
(1) The Central Government may by notification in the Official Gazette add to Schedule I any other industry in respect of the employees whereof it is of opinion that a provident fund scheme should be framed under this Act and thereupon the industry so added shall be deemed to be an industry specified in Schedule I for the purposes of this Act.
(2) All notifications under sub-section (1) shall be laid before Parliament as soon as may be after they are issued.
5. Employees’ Provident Funds Scheme
(1) The Central Government may by notification in the Official Gazette frame a Scheme to be called the Employees’ Provident Funds Scheme for the establishment of provident funds under this Act for employees or for any class of employees and specify the establishments or class of establishments to which the said Scheme shall apply and there shall be established as soon as may be after the framing of the Scheme a Fund in accordance with the provisions of this Act and the Scheme.
(1A) The Fund shall vest in and be administered by the Central Board constituted under section 5A.
(1B) Subject to the provisions of this Act a Scheme framed under sub-section (1) may provide for all or any of the matters specified in Sch. II.
(2) A Scheme framed under sub-section (1) may provide that any of its provisions shall take effect either prospectively or retrospectively on such date as may be specified in this behalf in the Scheme.
5A. Central Board
(1) The Central Government may 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 appointment 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 6A and section 6C administer the fund vested in it in such manner as may be specified in the Scheme.
(4) The Central Board shall perform such other functions as it may be required to perform by or under any provisions of the Scheme Family Pension Scheme and the Insurance Scheme.
(5) The Central Board shall maintain proper accounts of its income and expenditure in such form and in such manner as the Central Government may after consultation with the Comptroller and Auditor-General of India specify in the Scheme.
(6) The accounts of the Central Board shall be audited annually by the Comptroller and Auditor-General of India and any expenditure incurred by him in connection with such audit shall be payable by the Central Board to the Comptroller and Auditor-General of India.
(7) The Comptroller and Auditor-General of India and any person appointed by him in connection with the audit of the accounts of the Central Board shall have the same rights and privileges and authority in connection with such audit as the Comptroller and Auditor-General has in connection with the audit of Government accounts and in particular shall have the right to demand the production of books accounts connected vouchers documents and papers and inspect any of the offices of the Central Board.
(8) The accounts of the Central Board as certified by the Comptroller and Auditor-General of India or any other person appointment 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 dates 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 Trustee 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 Advisor 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 Family Pension Scheme and Insurance Scheme.
(4) No appointment to the post of the Central Provident Fund Commissioner or a Financial Advisor and Chief Accounts Officers or any other post under the Central Board carrying a scale of pay equivalent to the scale of pay of any Group ‘A’ or Group ‘B’ post under the Central Government shall be made except after consultation with the Union Public Service Commission.
Provided that no such consultation shall be necessary in regard to any such appointment
(a) for a period not exceeding one year or
(b) if the person to be appointed is at the time of his appointment
(i) a member of the Indian Administrative Service or
(ii) in the service of the Central Government or a State Government or the Central Board in a Group ‘A’ or Group ‘B’ post.
(5) A State Board may with the approval of the State Government concerned appoint such staff as it may consider necessary.
(6) The method of recruitment salary and allowances discipline and other conditions of service of the Central Provident Fund Commissioner 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 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 State Board shall be such as may be specified by that Board with the approval of the State Government concerned.
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 Family Pension Scheme and the Insurance Scheme.
6. *Contributions and matters which may be provided for in the Scheme
The contribution which shall be paid by the employer to the Fund shall eight and one-third per cent of the basic wages dearness allowances and retaining allowance (if any) for the time being payable to each of the employees (whether employed by him directly or by or through a contractor) and the employees’ contribution shall be equal to the contribution payable by the employer in respect of him and may if any employee so desires and if the Scheme makes provision therefore be an amount not exceeding eight and one-third per cent of his basic wages dearness allowances 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 “eight and one-third per cent” at both the places where they occur the words “ten per cent” shall be substituted :
Provided further that where the amount of any contribution payable under this Act involves a fraction of a rupee the Scheme may provide for the rounding off of such fraction to the nearest rupee half of a rupee or quarter to a rupee.
Explanation 1 : For the purposes of this section dearness allowance shall be deemed to include also the cash value of any food concession allowed to the employee.
Explanation 2 : For the purposes of this section retaining allowance means an allowance payable for the time being to an employee of any factory or other establishment during any period in which the establishment is not working for retaining his services.
6A. Employees’ Pension Scheme
(1) The Central Government may by notification in the Official Gazette frame a scheme to be called the Employees’ Pension Scheme for the purpose of providing for :
(a) superannuation pension retiring pension or permanent total disablement pension to the employees of any establishment or class of establishments to which this Act applies; and
(b) widow or widower’s pension children pension of 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 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 specified in the Pension Scheme;
(b) such sums as are payable by the employers of exempted establishments under sub-section (6) of section 17;
(c) the net assets of the Employees’ Family Pension Fund as on the date of the establishment of the Pension Fund;
(d) such sums as the Central Government may after due appropriation by Parliament by law in this behalf specify.
(3) On the establishment of the Pension Fund the Family Pension Scheme (hereinafter referred to as the ceased scheme) shall cease to operate and all assets of the ceased scheme shall vest in and shall stand transferred to and all liabilities under the ceased scheme shall be enforceable against the Pension Fund and the beneficiaries under the ceased scheme shall be entitled to draw the benefits not less than the benefits they were entitled to under the ceased scheme from the Pension Fund.
(4) The Pension Fund shall vest in and be administered by the Central Board in such manner as may be specified in the Pension Scheme.
(5) Subject to the provisions of this Act the Pension Scheme may provide for all or any of the matters specified in Schedule III.
(6) The Pension Scheme may provide that all or any of its provisions shall take effect either prospectively or retrospectively on such date as may be specified in that behalf in that Scheme.
(7) A Pension Fund Scheme framed under sub-section (1) shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions and if before the expiry of the session immediately following the session or the successive sessions aforesaid both Houses agree in making any modification in the scheme or both Houses agree that the scheme should not be made the scheme shall thereafter have effect only in such modified form or be of no effect as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that scheme”.
6C. Employees’ Deposit Linked Insurance Scheme
(1) The Central Government may by notification in the Official Gazette frame a Scheme to be called the Employees’ Deposit-linked Insurance Scheme for the purpose of providing life insurance benefits to the employees of any establishment or class of establishments to which this Act applies.
(2) There shall be established as soon as may be after the framing of the Insurance Scheme a Deposit-linked Insurance Fund into which shall be paid by the employer from time to time in respect of every such employee in relation to whom he is the employer such amount not being more than one per cent of the aggregate of the basic wages dearness allowance and retaining allowance (if any) for the time being payable in relation to such employee as the Central Government may by notification in the Official Gazette specify.
Explanation : For the purposes of this sub-section the expressions “dearness allowance” and “retaining allowance” have the same meanings as in section 6.
[(3) Omitted w.e.f. 16-11-1995]
(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 administration of the Insurance Scheme other than the expenses towards the cost of any benefits provided by or under that Scheme.
[(b) Omitted w.e.f. 16-11-1995]
(5) The Insurance Fund shall vest in the Central Board and be administered by it in such manner as may be specified in the Insurance Scheme.
(6) The Insurance Scheme may provide for all or any of the matters specified in Schedule IV.
(7) The Insurance Scheme may provide that any of its provisions shall take effect either prospectively or retrospectively on such date as may be specified in this behalf in that Scheme.
6D. Laying of Schemes before Parliament
Every Scheme framed under section 5 section 6A and section 6C shall be laid as soon as may be after it is framed before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions and if before the expiry of the session immediately following the session or the successive sessions aforesaid both Houses agree in making any notification in the Scheme or both Houses agree that the scheme should not be framed the Scheme shall thereafter have effect only in such modified form or be of no effect as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under the Scheme.
7. Modification of Scheme
(1) The Central Government may by notification in the Official Gazette add to amend or vary either prospectively or retrospectively the Scheme the Family Pension 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 the 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 for trying a suit in respect of the following matters namely :
(a) enforcing the attendance of any person or examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavit;
(d) issuing commissions for the examination of witnesses; and any such inquiry shall be deemed to be judicial proceeding within the meaning of sections 193 and 228 and for the purpose of section 196 of the Indian Penal Code.
(3) No order shall be made under sub-section (1) unless the employer concerned is given a reasonable opportunity of representing his case.
(3A) Where the employer employee or any other person required to attend the inquiry under sub-section (1) fails to attend such inquiry without assigning any valid reason or fails to produce any document or to file any report or return when called upon to do so the officer conducting the inquiry may decide the applicability of the Act or determine the amount due from any employer as the case may be on the basis of the evidence adduced during such enquiry and other documents available on record.
(4) Where an order under sub-section (1) is passed against an employer ex parte he may within three months from the date of communication of such order apply to the office 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 review he shall reject the application.
(4) Where the officer is of the opinion that the application for review should be granted he shall grant the same :
Provided that
(a) no such application shall be granted without previous notice to all the parties before him to enable them to appear and be heard in support of the order in respect of which a review is applied for and
(b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge or could not be produced by him when the order was made without proof of such allegation.
(5) No appeal shall lie against the order of the officer rejecting an application for review but an appeal under this Act shall lie against an order passed under review as if the order passed under review were the original order passed by him under section 7A.
7C. Determination of escaped amount
Where an order determining the amount due from an employer under section 7A or section 7B has been passed and if the officer who passed the order
(a) has reason to believe that by reason of the omission or failure on the part of the employer to make any document or report available or to disclose fully and truly all material facts necessary for determining the correct amount due from the employer any amount so due from such employer for any period has escaped his notice;
(b) has in consequence of information in his possession reason to believe that any amount to be determined under section 7A or section 7B has escaped from his determination for any period notwithstanding that there has been no omission or failure as mentioned in 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 given a reasonable opportunity of representing his case.
7D. Employees’ Provident Funds Appellate Tribunal
(1) The Central Government may by notification in the Official Gazette constitute one or more Appellate Tribunals to be known as the Employees’ Provident Funds Appellate Tribunal to exercise the powers and discharge the functions conferred on such Tribunal by this Act and every such Tribunal shall have jurisdiction in respect of establishments situated in such area as may be specified in the notification constituting the Tribunal.
(2) A Tribunal shall consist of one person only to be appointed by the Central Government.
(3) A person shall not be qualified for appointment as the Presiding Officer of a Tribunal (hereinafter referred to as the Presiding Officer) unless he is or has been or is qualified to be a Judge of a High Court.
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
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.
7G. Salary and allowances and other terms and conditions of service of presiding officer
The salary and allowances payable to a nd the other terms and conditions of service (including pension gratuity and other retirement benefits) of the Presiding Officer shall be such as may be prescribed.
Provided that neither the salary and allowances nor the other terms and conditions of service of the Presiding Officer shall be varied to his disadvantage after his appointment.
7H. Staff of Tribunal
(1) The Central Government shall determine the nature and categories of the officers and other employees required to assist a Tribunal in the discharge of its functions and provide the Tribunal such officers and other employees as it may think fit.
(2) The officers and other employees of a Tribunal shall discharge their functions under the general superintendence of the Presiding Officer.
3) The salaries and allowances and other conditions of service of the officers and other employees of a Tribunal shall be such as may be prescribed.
7I. Appeals to Tribunal
(1) Any person aggrieved by a notification issued by the Central Government or an order passed by the Central Government or any authority under the proviso to sub-section (3) or sub-section (4) of section 1 or section 3 or sub-section (1) of section 7A or section 7B except an order rejecting an application for review referred to in sub-section (5) thereof or section 7C or section 14B may prefer an appeal to a Tribunal against such notification or order.
(2) Every appeal under sub-section (1) shall be filed in such form and manner within such time and be accompanied by such fees as may be prescribed.
7J. Procedure of Tribunal
(1) A Tribunal shall have power to regulate its own procedure in all matters arising out of the exercise of its powers or of the discharge of its functions including the places at which the Tribunal shall have its sittings.
(2) A Tribunal shall for the purpose of discharging its functions have all the powers which are vested in the officers referred to in section 7A and any proceeding before the Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purpose of section 196 of the Indian Penal Code 1860 (45 of 1860) and the Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure 1973 (2 of 1974).
7K. Right of appellant to take assistance of legal practitioner and of government etc. to appoint presenting officers
(1) A person preferring an appeal to a Tribunal under this Act may either appear in person or take the assistance of a legal practitioner of his choice to present his case before the Tribunal.
(2) The Central Government or a State Government or any other authority under this Act may authorise one or more legal practitioners or any of its officers to act as presenting officers and every person so authorised may present the case with respect to any appeal before a Tribunal.
7L. Orders of Tribunal
(1) A Tribunal may after giving the parties to the appeal an opportunity of being heard pass such orders thereon as it thinks fit confirming modifying or annulling the order appealed against or may refer the case back to the authority which passed such order with such directions as the Tribunal may think fit for a fresh adjudication or order as the case may be after taking additional evidence if necessary.
(2) A Tribunal may at any time within five years from the date of its order with a view to rectifying any mistake apparent from the record amend any order passed by it under sub-section (1) and shall make such amendment in the order if the mistake is brought to its notice by the parties to the appeal :
Provided that an amendment which has the effect of enhancing the amount due from or otherwise increasing the liability of the employer shall not be made under this sub-section unless the Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard.
(3) A Tribunal shall send a copy of every order passed under this section to the parties to the appeal.
(4) Any order may by a Tribunal finally disposing of an appeal shall not be questioned in any Court of law.
7M. Filling up of vacancies
If for any reason a vacancy occurs in the office of the Presiding Officer the Central Government shall appoint another person in accordance with the provisions of this Act to fill the vacancy and the proceedings may be continued before a Tribunal from the stage at which the vacancy is filled.
7N. Finality of orders constituting a Tribunal
No order of the Central Government appointing any person as the Presiding Officer shall be called in question in any manner and no act or proceeding before a Tribunal shall be called in question in any manner on the ground merely of any defect in the constitution of such Tribunal.
7O. Deposit of amount due on filing appeal
No appeal by the employer shall be entertained by a Tribunal unless he has deposited with it seventy-five per cent of the amount due from him as determined by an officer referred to in section 7A.
Provided that the Tribunal may for reasons to be recorded in writing waive or reduce the amount to be deposited under this section.
7P. Transfer of certain applications to Tribunal
All applications which are pending before the Central Government under section 19A before its repeal shall stand transferred to a Tribunal exercising jurisdiction in respect of establishments in relation to which such applications had been made as if such applications were appeals preferred to the Tribunal.
7Q. Interest payable by the employer
The employer shall be liable to pay simple interest at the rate of twelve per cent per annum or at such higher rate as may be specified in the Scheme on any amount due from him under this Act from the date on which the amount has become so due till the date of its actual payment :
Provided that higher rate of interest specified in the Scheme shall not exceed the lending rate of interest charged by any scheduled bank.
8. Mode of recovery of moneys due from employers
Any amount due :
(a) from the employer in relation to an establishment to which any Scheme or the Insurance Scheme applies in respect of any contribution payable to the Fund or as the case may be the Insurance Fund damages recoverable under section 14B accumulations required to be transferred under sub-section (2) of section 15 or under sub-section (5) of section 17 or any charges payable by him under any other provision of this Act or of any provision of the Scheme or the Insurance Scheme; or
(b) from the employer in relation to an exempted establishment in respect of any damages recoverable under section 14B or any charges payable by him to the appropriate Government under any provision of this Act or under any of the conditions specified under section 17 or in respect of the contribution payable by him towards the Pension Scheme or the Insurance Scheme under the said section 17 may if the amount is in arrears be recovered in the manner specified in sections 8B to 8G.
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 employees’ 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 Schedule 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 of the charges referred to in sub-section (1) from the basic wages dearness allowance and retaining allowance (if any) payable to an employee employed by or through him or otherwise to recover such contribution or charges from such employee.
Explanation : In this section the expression “dearness allowance” and “retaining allowance” shall have the same meanings as in section 6.
8B. Issue of certificate to the Recovery Officer
(1) Where any amount is in arrears under section 8 the authorised officer may issue to the Recovery Officer a certificate under his signature specifying the amount of arrears and the Recovery Officer on receipt of such certificate shall proceed to recover the amount specified therein from the establishment or as the case may be the employer by one or more of the modes mentioned below :
(a) attachment and sale of the movable or immovable property of the establishment or as the case may be the employer;
(b) arrest of the employer and his detention in prison;
(c) appointing a receiver for the management of the movable or immovable properties of the establishment or as the case may be the employer;
Provided that the attachment and sale of any property under this section shall first be effected against the properties of the establishment and where such attachment and sale is insufficient for recovering the whole of the amount of arrears specified in the certificate the Recovery Officer may take such proceedings against the property of the employer for recovery of the whole or any part of such arrears.
(2) The authorised officer may issue a certificate under sub-section (1) 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 situate; or
(b) resides or any movable or immovable property of the establishment or the employer is situate.
(2) Where an establishment or the employer has property within the jurisdiction of more than one Recovery Officers and the Recovery Officer to whom a certificate is sent by the authorised officer
(a) is not able to recover 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 the thereupon that Recovery Officer shall also proceed to recover the amount due under this section as if the certificate or the copy thereof had been the certificate sent to him by the authorised officer.
8D. Validity of certificate and amendment thereof
(1) When the authorised officer issues a certificate to Recovery Officer under section 8B it shall not be open to the employer to dispute before the Recovery Officer the correctness of the amount and no objection to the certificate on any other ground shall also be entertained by the Recovery Officer.
(2) Notwithstanding the issue of a certificate to a Recovery Officer the authorised officer shall have power to withdraw the certificate or correct any clerical or arithmetical mistake in the certificate by sending an intimation to the Recovery Officer.
(3) The authorised officer shall intimate to the Recovery Officer any order withdrawing or cancelling a certificate or any correction made by him under sub-section (2) or any amendment made under sub-section (4) of section 8E.
8E. Stay of proceedings under certificate and amendment or withdrawal thereof
(1) Notwithstanding that a certificate has been issued to the Recovery Officer for the recovery of any amount the authorised officer may grant time for the payment of the amount and thereupon the Recovery Officer shall stay the proceedings until the expiry of the time so granted.
(2) Where a certificate for the recovery of amount has been issued the authorised officer shall keep the Recovery Officer informed of any amount paid or time granted for payment subsequent to the issue of such certificate.
(3) Where the order giving rise to a demand of amount for which a certificate for recovery has been issued has been modified in appeal or other proceeding under this Act and as a consequence thereof the demand is reduced but the order is the subject-matter of a further proceeding under this Act the authorised officer shall stay the recovery of such part of the amount of the certificate as pertains to the said reduction for the period for which the appeal or other proceeding remains pending.
(4) Where a certificate for the recovery of amount has been issued and subsequently the amount of the outstanding demand is reduced as a result of an appeal or other proceeding under this Act the authorised officer shall when the order which was the subject-matter of such appeal or other proceeding has become final and conclusive amend the certificate or withdraw if as the case may be.
8F. Other modes of recovery
(1) Notwithstanding the issue of a certificate to the Recovery Officer under section 8B the Central Provident Fund Commissioner or any other officer authorised by the Central Board may recover the amount by any one or more of the mode 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 civil court under section 60 of the Code of Civil Procedure 1908.
(3)(i) The Central Provident Fund Commissioner or any other officer authorised by the Central Board in this behalf may at any time or from time to time by notice in writing require any person from whom money is due or may become due to the employer or as the case may be the establishment or any person who holds or may subsequently hold money for or on account of the employer or as the case may be the establishment to pay to the Central Provident Fund Commissioner either forthwith upon the money becoming due or being held or at or within the time specified in the notice (not being before the money becomes due or is held) so much of the money as is sufficient to pay the amount due from the employer in respect of arrears or the whole of the money when it is equal to or less than that amount.
(ii) A notice under this sub-section may be issued to any person who holds or may subsequently hold any money for or on account of the employer jointly with any other person and for the purposes of this sub-section the shares of the joint-holders in such account shall be presumed until the contrary is proved to be equal.
(iii) A copy of the notice shall be forwarded to the employer at his last address known to the Central Provident Fund Commissioner or as the case may be the officer so authorised and in the case of a joint account to all the joint-holders at their last addresses known to the Central Provident Fund Commissioner or the officer so authorised.
(iv) Save as otherwise provided in this sub-section every person to whom a notice is issued under this sub-section shall be bound to comply with such notice and in particular where any such notice is issued to a post office bank or an insurer it shall not be necessary for any pass book deposit receipt policy or any other document to be produced for the purposes of any entry endorsement or the like being made before payment is made notwithstanding any rule practice or requirement to the contrary.
(v) Any claim respecting any property in relation to which a notice under this sub-section has been issued arising after the date of the notice shall be void as against any demand contained in the notice.
(vi) Where a person to whom a notice under this sub-section is sent objects to it by a statement on oath that the sum demanded or any part thereof is not due to the employer or that he does not hold any money for or on account of the employer then nothing contained in this sub-section shall be deemed to require such person to pay any such sum or part thereof as the case may be but if it is discovered that such statement was false in any material particular such person shall be personally liable to the Central Provident Fund Commissioner or the officer so authorised to the extent of his own liability to the employer on the date of the notice or to the extent of the employer’s liability for any sum due under this Act whichever is less.
(vii) The Central Provident Fund Commissioner or the officer so authorised may at any time or from time to time amend or revoke any notice issued under this sub-section or extend the time for making any payment in pursuance of such notice.
(viii) The Central Provident Fund Commissioner or the officer so authorised shall grant a receipt for any amount paid in compliance with a notice issued under this sub-section and the person so paying shall be fully discharged from his liability to the employer to the extend 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 arrears due from him in the manner provided in sections 8B to 8E and the notice shall have the same effects 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 the Act instead of to the Income Tax :
Provided that any reference in the said provisions and the rules to the “assessee” shall be construed as a reference to an employer as defined in this Act.
9. Fund to be recognised under Act 11 of 1922
For the purposes of Indian Income Tax Act 1922 the Fund shall be deemed to be a recognised provident fund within the meaning of Chapter IX-A of that Act :
Provided that nothing contained in the said Chapter shall operate to render ineffective any provision of the Scheme (under which the Fund is established) which is repugnant to any of the provisions of that Chapter or of the rules made thereunder.
10. Protection against attachment
(1) The amount standing to the credit of any member in the Fund or of any exempted employee in a provident fund shall not in any way be capable of being assigned or charged and shall not be liable to attachment under any decree or order of any Court in respect of any debt or liability incurred by the member or the exempted employee and neither the official assignee appointed under the Presidency Towns Insolvency Act 1909 nor any receiver appointed under the Provincial Insolvency Act 1920 shall be entitled to or have any claim on any such amount.
(2) Any amount standing to the credit of a member in the Fund or of an exempted employee in a provident fund at the time of his death and payable to his nominee under the Scheme or the rules of the Provident Fund shall subject to any deduction authorised by the said Scheme or rules vest in the nominee and shall be free from any debt or other liability incurred by the decreased or the nominee before the death of the member or the exempted employee and shall also not be liable to attachment under any decree or order of any Court.
(3) The provisions of sub-section (1) and sub-section (2) shall so far as may be apply in relation to the family pension or any other amount payable under the 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 under any of the conditions specified under section 17 shall where the liability therefor has accrued before the order of adjudication or winding up is made be deemed to be included among the debts which under section 49 of the Presidency Towns Insolvency Act 1909 or under section 61 of the Provincial Insolvency Act 1920 or under section 530 of the Companies Act 1956 are to be paid in priority to all other debts in the distribution of the property of the insolvent or the assets of the company being wound up as the case may be.
Explanation : In this sub-section and in section 17 insurance fund means any fund established by an employer under any Scheme for providing benefits in the nature of life insurance to employees whether linked to their deposits in provident fund or not without payment by the employees of any separate contribution or premium in that behalf.
(2) Without prejudice to the provisions of sub-section (1) if any amount is due from an employer whether in respect of the employee’s contribution (deducted from the wages of the employee) or the employer’s contribution the amount so due shall be deemed to be the first charge on the assets of the establishment and shall notwithstanding anything contained in any other law for the time being in force be paid in priority to all other debts.
12. Employer not to reduce wages etc
No employer in relation to an establishment to which any Scheme or the Insurance Scheme applies shall by reason only of his liability for the payment of any contribution to the Fund or the Insurance Fund or any charges under this Act or the Scheme or the Insurance Scheme reduce whether directly or indirectly the wages of any employee to whom the Scheme or the Insurance Scheme applies or the total quantum of benefits in the nature of old age pension gratuity 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 purposes 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 compiled 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 one found in charge thereof to produce before him for examination any accounts books registers and other documents relating to the employment of persons or the payment of wages in the establishment;
(c) examine with respect to any matter relevant to any of the purposes aforesaid the employer or any contractor from whom any amount is recoverable under sections 8A his agent or servant or any other person found in charge of the establishment;
(d) makes copies of or take extracts from any book register or other document maintained in relation to the establishment and where he has reason to believe that any offence under this Act has been committed by an employer seize with such assistance as he may think fit such book register or other document or portions thereof as he may consider relevant in respect of that offence;
(e) exercise of such other powers as the Scheme or the Insurance Scheme may provide.
(2A) Any Inspector appointed under sub-section (1) may for the purpose of inquiring into the correctness of any information furnished in connection with the Pension Scheme or for the purpose of ascertaining whether any of the provisions of this Act or of the Pension Scheme applies exercise all or any of the powers conferred on him under clause (a) clause (b) clause (c) or clause (d) of sub-section (2).
(2B) The provisions of the Code of Criminal Procedure 1898 shall so far as may be apply to any search or seizure under sub-section (2) or under sub-section (2A) as the case may be as they apply to any search and seizure made under the authority of a warrant issued under section 98 of the said Code.
14. Penalties
(1) Whoever for the purpose of avoiding any payment to be made by himself under this Act the Scheme the Pension Scheme or the Insurance Scheme or of enabling any other person to avoid such payment knowingly makes or causes to be made any false statement or false representation shall be punishable with imprisonment for a term which may extend to one year or with fine of five thousand rupees or with both.
(1A) An employer who contravenes or makes default in complying with the provisions of section 6 or clause (a) of sub-section (3) of section 17 in so far as it relates to the payment of administrative charges shall be punishable with imprisonment for a term which may extend to three years but
(a) which shall not be less than one year and fine of ten thousand rupees in case of default in payment of employees’ contribution which has been deducted by the employer from the employees’ wages;
(b) which shall not be less than six months and fine of five thousand rupees in any other case :
Provided that the court may for any adequate and special reasons to be recorded in the 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 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 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 the Act the Scheme the Pension Scheme or the Insurance Scheme may provide that any person who contravenes or makes default in complying with any of the provisions thereof shall be punishable with imprisonment for a term which may extend to 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.
(2A) Whoever contravenes or makes default in complying with any provision of this Act or of any condition subject to which exemption was granted under section 17 shall if no other penalty is elsewhere provided by or under this Act for such contravention or non-compliance be punishable with imprisonment which may extend to six months but which shall not be less than one month and shall also be liable to fine which may extend to five thousand rupees.
14A. Offences by companies
(1) If the person committing offence under this Act the Scheme the Pension Scheme or the Insurance Scheme is a company every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly;
Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1) where an offence under this Act the Scheme the Pension Scheme or the Insurance Scheme has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any director or manager secretary or other officer of the company such director manager secretary 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 purpose of this section
(i) “company” means any body corporate and includes a firm and other association of individuals; and
(ii) “director” and relation to a firm means a partner in the firm.
14AA. Enhanced punishment in certain cases after previous conviction
Whoever having been convicted by a court of an offence punishable under this Act the Scheme the Pension Scheme or the Insurance Scheme commits the same offence shall be subject for every such subsequent offence to imprisonment for a term which may extend to five years but which shall not be less than two years and shall also be liable to a fine of twenty-five thousand rupees.
14AB. Certain offences to be cognizable
(1) Notwithstanding anything contained in Code of Criminal Procedure 1898 (5 of 1898) an offence relating to default in payment of contribution by the employer punishable under this Act shall be cognizable.
14AC. Cognizance and trial of offences
(1) No court shall take cognizance of any offence punishable under this Act the Scheme 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 of he Scheme 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 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 or arrears as may be specified in the Scheme;
Provided that before levying and recovering such damages the employer shall be given a reasonable opportunity of being heard :
Provided further that the Central Board may reduce or waive the damages levied under this section in relation to an establishment which is a sick industrial company and in respect of which Scheme for rehabilitation has been sanctioned by the Board for industrial and Financial Reconstruction established under section 4 of the Sick Industrial Companies (Special Provisions) Act 1985 (1 of 1986) subject to such terms and conditions as may be specified in the Scheme.
14C. Power of court of make orders
(1) Where an employer is convicted of an offence of making default in the payment of any contribution to the Fund the Pension Fund or the Insurance Fund or in the transfer of accumulations required to be transferred by him under sub-section (2) of section 15 or sub-section (5) of section 17 the court may in addition to awarding any punishment by order in writing require him within a period specified in the order (which the court may if it thinks fit and on application in that behalf from time to time extend) to pay the amount of contribution or transfer the accumulations as the case may be in respect of which the offence was committed.
(2) Where an order is made under sub-section (1) the employer shall not be liable under this Act in respect of the continuation of the offence during the period or extended period if any allowed by the court but if on the expiry of such period or extended period as the case may be the order of the court has not been fully complied with the employer shall be deemed to have committed a further offence and shall be punished with imprisonment in respect thereof under section 14 and shall also be liable to pay fine which may extend to one hundred rupees for every day after such expiry on which the order has not been complied with.
15. Special provisions relating to existing provident funds
(1) Subject to the provisions of section 17 every employee who is a subscriber to any provident fund of an establishment to which this Act applies shall pending the application of a Scheme to the establishment in which he is employed continue to be entitled to the benefits accruing to him under the provident fund and the provident fund shall continue to be maintained in the same manner and subject to the same conditions as it would have been if this Act had not been passed.
(2) On the application of any Scheme to establishment the accumulations in any provident fund of the establishment standing to the credit of the employees who become members of the fund established under the Scheme shall notwithstanding anything to the contrary contained in any law for the time being in force or in deed or other instrument establishing the provident fund but subject to the provisions if any contained in the Scheme be transferred to the Fund established under the Scheme and shall be credited to the accounts of the employees entitled thereto in the Fund.
16. Act not to apply to certain establishments
(1) This Act shall not apply
(a) to any establishment registered under the Co-operative Societies Act 1912 or under any other law for the time being in force in any State relating to co-operative societies employing less than fifty persons and working without the aid of power or
(b) to any other establishment belonging to or under the control of the Central Government or a State Government and whose employees are entitled to the benefits of contributory provident fund or old age person 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 person in accordance with any scheme or rule framed under that Act governing such benefits; or
(d) to any other establishment newly set up until the expiry of a period of three years from the date on which such establishment is has been set up.
Explanation : For the removal of doubts it is hereby declared that an establishment shall not be deemed to be newly set up merely by reason of a change in its location.
(2) If the Central Government is of opinion that having regard to the financial position of any class of establishments or other circumstances of the case it is necessary or expedient so to do it may by notification in the Official Gazette and subject to such conditions as may be specified in the notification exempt whether prospectively or retrospectively that class of establishments from the operations of this Act or such period as may be specified in the notification.
16A. Authorising certain employers to maintain provident fund accounts
(1) The Central Government may on an application made to it in this behalf by the employer and the majority of employees in relation to an establishment employing one hundred or more persons authorise the employer by an order in writing to maintain a provident fund account in relation to the establishment subject to such terms and conditions as may be specified in the Scheme.
Provided that no authorisation shall be made under this sub-section if the employer of such establishment had committed any default in the payment of provident fund contribution or had committed any other offence under this Act during the three years immediately preceding the date of such authorisation.
(2) Where an establishment is authorised to maintain a provident fund account under sub-section (1) the employer in relation to such establishment shall maintain such account submit such return deposit the contribution in such manner provide for such facilities for inspection pay such administrative charges and abide by such other terms and conditions as may be specified in the Scheme.
(3) Any authorisation made under this section may be cancelled by the Central Government by order in writing if the employer fails to comply with any of the terms and conditions of the authorisation or where he commits any offence under any provision of this Act.
Provided that before canceling the authorisation the Central Government shall give the employer a reasonable opportunity of being heard.
17. Power of exempt
(1) The appropriate government may by notification in the Official Gazette and subject to such conditions as may be specified in the notification exempt whether prospectively or retrospectively from the operation of all or any of the provisions of any Scheme :
(a) any establishment to which this Act applies if in the opinion of the appropriate government the rules of its provident fund with respect to the rates of contribution are not less favourable than those specified in section 6 and the employees are also in enjoyment of other provident fund benefits which on the whole are not less favourable to the employees than the benefits provided under this Act or any Scheme in relation to the employees in any other establishment of similar character or
(b) any establishment 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 that the benefits provided under this Act or any Scheme in relation to the employees in any other establishment of a similar character :
Provided that no such exemption shall be made except after consultation with the Central Board which on such consultation shall forward its views on exemption to the appropriate government within such time limit as may be specified in the Scheme.
(1A) Where an exemption has been granted to an establishment under clause (a) of sub-section (1)
(a) the provisions of sections 6, 7A, 8 and 14B shall so far as may be apply to the employer of the exempted establishment in addition to such other conditions as may be specified in the notification granting such exemption and where such employer contravenes or makes default in complying with any of the said provisions or conditions or any other provision of this Act he shall be punishable under section 14 as if the said establishment had not been exempted under the said clause (a);
(b) the employer shall establish a Board of Trustees for the administration of the Provident Fund consisting of such number of members as may be specified in the Scheme;
(c) the terms and conditions of service of members of the Board of Trustees shall be such as may by specified in the Scheme;
(d) the Board of Trustees constituted under clause (b) shall –
(i) maintain detailed accounts to show the contributions credited withdrawals made and interest accrued in respect of each employee;
(ii) submit such returns to the Regional Provident Fund Commissioner or any other officer as the Central Government may direct from time to time;
(iii) invest the provident fund monies in accordance with the directions issued by the Central Government from time to time;
(iv) transfer where necessary the provident fund account of any employee; and
(v) perform such other duties as may be specified in the Scheme.
(1B) Where the Board of Trustees established under clause (b) of sub-section (1A) contravenes or makes default in complying with any provisions of clause (d) of that sub-section the Trustees of the said Board shall be deemed to have committed an offence under sub-section (2A) of section 14 and shall be punishable with the penalties provided in that sub-section.
(1C) The appropriate government may by notification in the Official Gazette and subject to the condition on the pattern of investment of pension fund and such other conditions as may be specified therein exempt any establishment or class of establishments from the operation of the Pension Scheme if the employees of such establishment or class of establishments are either members of any other pension scheme or propose to be members of such pension scheme where the pensionary benefits are at par or more favourable than the Pension Scheme under this Act”
(2) Any Scheme may make provision for exemption of any person or class of persons employed in any establishment to which the Scheme applies from the operation of all or any of the provisions of the Scheme if such person or class of persons is entitled to benefits in the nature of provident fund gratuity or old age pension and such benefits separately or jointly are on the whole not less favourable than the benefits provided under this Act or the Scheme.
Provided that no such exemption shall be granted in respect of a class of persons unless the appropriate government is of opinion that the majority of persons constituting such class desire to continue to be entitled to such benefits.
(2A) The Central Provident Fund Commissioner may if requested so to do by the employer by notification in the Official Gazette and subject to such conditions as may be specified in the notification exempt whether prospectively or retrospectively any establishment from the operation of all or any of the provisions of the Insurance Scheme if he is satisfied that the employees of such establishment are without making any separate contribution or payment of premium in enjoyment of benefits in the nature of life insurance whether linked to their deposits in provident fund or not and such benefits are more favourable to such employees than the benefits admissible under the Insurance Scheme.
(2B) Without prejudice to the provisions of sub-section (2A) the Insurance Scheme may provide for the exemption of any person or class of persons employed in any establishment and covered by that Scheme from the operation of all or any of the provisions thereof if the benefits in the nature of life insurance admissible to such person or class of persons are more favourable than the benefits provided under the Insurance Scheme.
(3) Where in respect of any person or class of persons employed in as establishment an exemption is granted under this section from the operation of all or any of the provisions of any scheme (whether such exemption has been granted to the establishment wherein such person or class of persons is employed or to the person or class of persons as such) the employer in relation to such establishment –
(a) shall in relation to the provident fund pension and gratuity to which any such person or class of persons is entitled maintain such accounts submit such returns make such investment provide for such facilities for inspection and pay such inspection charges as the Central Government may direct;
(b) shall not at any time after the exemption without the leave of the Central Government reduce the total quantum of benefits in the nature of pension gratuity or provident fund to which any person or class of persons was entitled at the time of the exemption; and
(c) shall where any such person leaves his employment and obtains re-employment in another establishment to which this Act applies transfer within such time as may be specified in this behalf by the Central Government the amount of accumulations to the credit of that person in that 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 in granted under sub-section (2A) or sub-section (2B) from the operation of all or any of the provisions of the Insurance Scheme (whether such exemption is granted to the establishment wherein such person or class of persons is employed or to the person or class of persons as such) the employer in relation to such establishment :
(a) shall in relation to the benefits in the nature of life insurance to which any such person or class of persons is entitled or any insurance fund maintain such accounts submit such returns make such investments provide for such facilities for inspection and pay such inspection charges as the Central Government may direct;
(b) shall not at any time after the exemption without the leave of the Central Government reduce th
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