PETITIONER: M.P.SHIKSHAK CONGRESS & ORS. Vs. RESPONDENT: R.P.F. COMMISSIONER, JABALPUR & ORS. DATE OF JUDGMENT: 01/12/1998 BENCH: SUJATA V. MANOHAR, G.B. PATTANAIK. ACT: HEADNOTE: JUDGMENT:
O R D E R
The present appeals arise from the judgments and
orders of the Madhya Pradesh High Court under which the High
Court has unheld the orders of the Regional Provident Fund
Commissioner dated 24th of April, 1991 ana 15th of July,
1991 directing the employer concerned, being the schools
mentioned in the said orders, to deposit, the contribution
of the employees as well as the employers to the provident
fund constituted under the Employees’ Provident Fund and
Miscellaneous Provisions Act, 1952, for the period 1st
August, 1982 to 1st December, 1988. The writ petitions
filed by the appellants to challenge these orders have been
dismissed by the High Court. The appellants have filed the
present appeals in a representative capacity on behalf of
the teachers and other employees of variuous private put
aided schools in the State of Madhya Pradesh.
In the State of Madhya Pradesh, under the Central
Provinces and Berar Education Manual, 1928, in Appendix
XVIII there was a scheme constituting a provident fund for
teachers in non-pensionable service, under Rule 3 of
Appendix XVIII the proportion of contribution to be paid by
the teachers was specified, while under Rule 4, contribution
by the Government and by the management of the school to the
Provident Fund was also specified. Pule 6 dealt with the
management of the Contributory Provident Fund.
In 1978, the Madhya Pradesh Act 20 of 1978 was
promulgated known as the Madhya Pradesh Ashaskiya Sikshan
Sanstha (Adhyapakon Tatha Anya Karmchariyon ke ventano ka
Sandaya) Adhiniyam, 1978. The preamble of the Act states
that it is an act to make provision for regulating payment
of salaries to teachers and other employees of NonGovernment
and Schools receiving grant-in-aid from the State Government
and Non-Government Educational Institutions for High
Education receiving grants from the Madhya Pradesh Uchcha
Shiksha Anudan Ayog and other matters ancillary thereto.
The Act was, therefore, basically meant to regulate payment
of salaries to the employees of the Institutions covered by
that Act.
Under Section 5 of the said Act 1978 and
institutional fund was constituted for payment of salary to
the teachers. The section prescribes the amounts which have
to be deposited in the institutional fund. Under Section
6(2), the State Government or the Ayog, as the case may be,
was required to place to the credit of the institution fund,
in advance, such sums as may be required for the payment of
salary to teachers and employees of the institution
including the institutions contribution to the provident
fund accounts at the rate at which it was required to make
such contribution under any enactment for the time being in
force. Therefore, the amount which was required to be
contributed as the institutions’ contribution to any
provident fund, was now required to be deposited in the
institutional fund, was now required to be deposited in the
institutional fund. The Act of 1978 did not prescribe any
scheme for provident fund as such.
Therefore, the existing scheme for contributory
provident fund under the Central Provinces and Berar
Educational Manual, 1928 continued to remain in force except
that the institution’s contribution was now required to be
deposited in the institutional fund. The Rules framed in
1978 under the said Act 1978 also did not set up any new
scheme for contributory provident fund. The Rule of 1978
also did not prescribe any rate of contribution to a
contributory provident fund.
The Rules of 1978 were, however, replaced by the
Ashasiya Shikshan Sanstha Institutional Fund Rules, 1983.
Under these Rules, for the first time, specific provisions
were made under Rule 8 for opening of accounts for deposit
of salary and teachers’ contribution to the provident fund.
Under Rule 10, the deductions to be made, inter alia, in
respect of provident fund were also require to be set out in
the statement in Form IV prescribed under the Rules and the
amounts had to be dealt with as prescribed under those
Rules. Sub-rule (6) of Rule 10, however, was as follows :
“10(6) :Notwithstanding anything
contained in rule 8,9 and this rule; where
the provisions of the Employees Provident
Fund and Miscellaneous Provisions Act,
1952 (No. 19 of 1952) apply to the
teachers and other employees of any
institution, the provident Fund account
and other record relating thereto shall be
maintained in accordance with the
provisions of the said Act.
In 1952, much prior to the Madhya Pradesh Act 20 of
1978, the Employees’ Provident Fund and Miscellanceous
Provisions Act, 1952 was promulgated by the Central
Government. The said Act, however, initially did not apply
to educational institutions. Hence the teachers and
employee of the aided schools in Madhya Pradesh remained
under the Contributory Provident scheme of the Central
Provinces and Berar Educational Manual. Even after the
Madhya Pradesh Act 20 of 1978 came into force, the same
scheme continued with the modification set out above.
However, by Notification in the Gazette of India dated 6th
of March, 1982, in exercise of powers conferred by Section
1(30(b) of the Employees’ Provident Fund and Miscellanceous
Provisions Act, the Central Government specified certain
classes of establishments in which 29 or more persons were
employed, as covered by the said Central Act of 1952. The
establishments so covered included any College whether or
not affiliated with the University, as also any School
whether or not recognised or aided a by the Central or the
State Government. It also covered any other institution in
which the activity of imparting knowledge or training was
carried on. by virtue of this Notification, therefore, from
6th of March 1982, the Employees’ Provident Fund and
Miscellaneous Provisions Act, 1952 became applicable, inter
alia, to to the aided schools of the State of Madhya
Pradesh.
Thereafter, by an amendment to Section 16(1)(b) of
the Employees’ Provident Fund and Miscellaneous Provisions
Act, 1952 made on 1st of August, 1988, it was provided as
follows :
“Section 16(1): The Act shall not apply –
(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; ……”
We have to examine whether, by the amendment of
Section 16(1)(b), with, effect from 1st of August, 1988, the
Employees’ Provident Fund and Miscellanceous Provisions Act,
1952 ceased to apply to the employees and teachers of the
aided schools of the State of Madhya Pradesh. The
respondents contend that in any event, the said Central Act
of 1952 was applicable to all teachers and employees of the
aided schools in the State of Madhya Pradesh from 6th of
March, 1982 till 1st August, 1988.
The appellants, however, contend that the Central
Act, that is to say, the Employees’ Provident Fund and
Miscellanceous Provisions Act, 1952 is not applicable to the
aided schools of the State of Madhya Pradesh. They contend
that the Central Act was a prior Act existing at the time
when the State Act 20 of 1978 came into force. The State
Act of 1978 had received the assent of the president. Hence
under Article 254(2) of the Constitution, in the State of
Madhya Pradesh, Act 20 of 1978 would prevail over the
Employees’ Provident Fund and Miscellaneous Provisions Act
1952. This argument is fallacious. Under Article 254(1) of
the Constitution, if any provision of a law made by the
legislature of a State is repugnant to any provision of a
law made by Parliament, which Parliament is competent to
enact, then subject to the provisions of clause (2), the law
made by the Parliament, whether passed before or after the
law made by the legislature of such State, shall prevail and
the law made by the legislature of the State shall, to the
extent of the repugnancy, be void. The ordinary rule,
therefore, is that when both the State legislature as well
as Parliament are competent to enact a law on a given
subject, it is the law made by Parliament which will
prevail. The exception which is varved out is under clause
(2) of Article 254. Under this clause (2) where a law made
by the legislature of a State with respect to one of the
matters enumerated in the Concurrent List contains any
provision repugnant to the provisions of an earlier law made
by Parliament, then the law so made by the legislature of
such State shall, if it has been reserved for the
consideration of the President and has received his assent,
prevail in the State, Provided that nothing in this clause
shall prevent Parliament from enacting at any time any law
with respect to the same matter including a law adding to,
amending, varying or repealing the law so made by the
legislature of the State.
Before clause (2) of Article 254 is attracted, there
must be a repugnancy between any provision of a State law
and any provision of an earlier existing law made by
Parliament. In the present case, when the Madhya Pradesh
Act 20 of 1978 was enacted, there was no repugnancy between
the Madhya Pradesh Act 20 of 1978 and the Employees’
Provident Fund and Miscellaneous Provisions Act of 1952
already enacted by Parliament. The Parliamentary Act did
not apply to educational institutions. The State Act dealt
with salaries and other ancillary matters governing certain
educational institutions. Therefore, there was no
repugnancy between the earlier Parliamentary legislation and
the late State legislation. There was no question,
therefore, of the State Act prevailing over the
Parliamentary Act of 1952. In fact, quite clearly the
Central Act did not apply to educational institutions either
in the State of Madhya Pradesh or anywhere else.
Secondly, as the preamble and other provisions of
the State Act 20 of ” 978 show, the primary purpose of the
State Act was to make provisions for regulating the payment
of salaries to teachers and other employees of aided
Non-Government schools. The Act did not even provide for
any scheme for setting up a Provident Fund. The Act
incidental required that the institutional contribution to
any existing Provident Fund scheme should be paid into the
institutional fund set up under the said Act. Looking to
the pith and substance of the State Act of 1975 also, it
cannot be said that it in any way made provisions which were
repugnant to the Employees Provident Fund and Miscellaneous
Provisions Act, 1952.
It was by reason of the Not1fication of th of
March, 1982 that the Central Act was extended to educational
institutions. The Employees ‘ Provident Fund and
MiscelIaneous Provisions Act, 1952, therefore, became
applicable to educational institutions in the State of
Madhya Pradesh for the first time on 6th of March, 1982.
This was much later than the enactment of the State Act 20
of 1378. The ParIiamentary enactment, therefore, would
prevail over the State Act 20 of 1978, assuming that the
State Act of 1978 created of affected any scheme for
Provident Fund Article 254(2), therefore, has no application
in the present case.
The Appellants, however, relied upon a decision of
this Court in the case of Pt.Rishikesh & Anr. v. Salma
Begum (Smt.) ([1995] 4 SCC 718) in which this Court said
that if a law is made by Parliament at a given date, but is
brought into force at a later date, then, if in the
interregnum, a State law is made which has received the
assent of the President the State law will prevail because
the law made by Parliament is an earlier law. This ratio
has no application to the present case where the Act was
already in force from inception. This law in force was not
repugnant to the State Act. when the State Act came into
force. The Central Act. however, in the present case, was
appiled to educational institutions at a date later than the
State Act. Hence the repugnancy arose only at a later date
when the Central Act became applicable to educational
institutions. In such a situation, there can be no question
of the application of Article 254(2) because the repugnancy
arose later in point of time than the State Act. Moreover,
in the present case, there is no question of repugnancy
between the two Acts si nce the State Act of 1978 does not
provide for any Provident Fund Scheme.
However, after the application of the Employees’
Provident Fund and Miscellaneous Provisions Act, 1952 to
education institutions, in 1963 new Rules were framed by the
State of Madhya Pradesh under Act 20 of 1978. These are
referred to as the State Rules of 1383. Under the State
Rules of 1983, for the first time a scheme was set out for
Contributory Provident Fund covering the teachers and
employees of aided school . The State Government, however,
was conscious of the fact that the employee ‘ Provident Fund
and Miscellaneous Provisions Act, 1952 was applicable in the
State of Madhya Pradesh. Therefore, by Rule 10(6) of the
State Rules of 1983, it was provided that the scheme as set
out in the State Rules of 1983 would not apply where the
provisions of the Employees’ provident Fund and
Miscellaneous Provisions Act, 1952 apply. Clearly,
therefore, far from there Deing any conflict between the
State and the Central Legistation, the State Legislation by
Rules framed “in 1383 has excluded from the operation of the
State scheme as framed under the 1983 rules, those employees
to whom the Central Act apples.
In this view of the matter, there can be no doubt
that for the period 1st August, 1982 to 1st August, 1983 the
Employees’ Proviaent Fund and Miscellaneous Provisions Act,
1952 was applicable to such teachers and employees of the
aided schools in the State of Madhya Pradesh who are covered
by the provisions of the scheme framed thereunder. The
orders of the Regional Provident, Fund Commissioner,
therefore, in so far as the orders cover the period 1st
August, 1982 to 1st August, 1988 are valid.
The said orders, however, also refer to an
additional period from 1st of August, 1988 to 1st December,
1988. According to the appellants, 1st of August, 1988, by
virtue of the amended Section 16(1)(b) of the Employees’
Provident Fund and Miscellaneous Provisions Act, 1952 coming
into effect in the provisions of the 1952 Act are no longer
applicable to them. Section 16(1)(b) provides that the 1952
Act will not apply to any establishment under the control of
the State Government whose employees are entitled to the
benefit of Contributory Provident Fund in accordance with
any scheme framed by the State Government conferring such
benefits. Whether on 1st of August, 1988, there was any
scheme in existence of the State Government which conferred
Contributory Provident Fund benefit to the employees covered
earl ier by the Central Act of 1952 or not is a matter which
the Regional Provident Fund Conrimissioner will have to
examine if such a contention is raised before him by the
appellants.
We, therefore, remit the matter to the concerned
Regional Provident Fund Commissioner only for the limited
purpose of examining whether for the period 1st of August,
1986 to 1st of December, 1988 the provisions of Employees’
Provident Fund and Miscellaneous Provisions Act, 1952 are
applicable to the concerned institutions. The orders,
however, for the period 1st August, 1982 to 1st August, 1988
are upheld.
The appels are accordingly dismissed with the above
modification.
