JUDGMENT
D. Biswas, J.
1. Heard Mr. S. Dutta, learned Counsel for the petitioner and also Mr. B.C. Pathak, learned Counsel appearing on behalf of respondent No. 2.
2. The petitioner is a Co-operative Housing Society registered under the Assam Co-operative Societies Act, 1949. This Co-operative Society has been formed for the purpose of acquisition of land and construction of residential flat. The construction is undertaken through different contractors at different point of time. The Assistant Provident Fund Commissioner by the order dated 5.10.1998 in exercise of powers under Section 7A of the Employees’ Provident Fund & Misc. Provisions Act, 1952 directed the petitioner-Society to deposit a sum of Rs. 43,105 as provident fund due to the workers employed by it during the period from November 1996 to March 1998.
3. Mr. Dutta argued that the petitioner is a registered Cooperative Society under the Assam Cooperative Societies Act, 1949 and the persons employed for the purpose of construction was less than 50 and no power was used. Therefore, the provisions of the Act of 1952 are not applicable in respect of the petitioner-Cooperative Society.
4. For better appreciation, the provision in Sub-section (1) of Section 16 are quoted below:
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 employing fifty, or more persons or twenty or more, but less than fifty persons until the expiry of three years in the case of the former and five years in the case of the latter, from the date
5. It would appear from Clause (a) that an establishment registered under the Cooperative Societies Act, 1913 or under any law for the time being force is exempted from, payment of provident fund in respect of employees if the number does not exceed 50 and they do not use power. In the instant case, at certain point of time the workers employed by the contractors exceeded 50 and, this situation, as it appears led the Assistant Provident Fund Commissioner to direct the petitioner-Society to deposit the provident fund. The order passed by the Provident Fund Commissioner (Annexure-3) no where reflects that the persons employed by the petitioner-Society were working with the aid of power. Even the inspection report on the basis of which the impugned order was passed also does not reflect that the employees were,’ at any point of time, required to work with aid of power. The authority empowered to collect the provident fund dues will have to satisfy himself of this requirement while directing the Cooperative Society to deposit the provident fund dues that it has in its employment, either directly or through contractors, workers exceeding 50 and that they have been working with the aid of power. If it is found that the number of workers exceeds 50 and they are required to work with the aid of power, only in that case the Commissioner may invoke the provisions of the Act. In the instant case, the requirement of law as is required under the provisions of Section 16 are not complied with. Therefore, the impugned order dated 5.10.1998 is liable to be quashed.
6. In the result, the writ petition is allowed. The impugned order dated 5.10.1998 passed by the Assistant Provident Fund Commissioner (Enf) is quashed. No costs.