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Legal Provision
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An Act to provide for the institution of provident funds, pension fund
and deposit-linked insurance fund for employees in factories and other
establishments.
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Be it enacted by Parliament as follows:-
1. Short title, extent and application.- |
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(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 -
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(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. |
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(4) Notwithstanding anything contained in sub-section 3 of this section
or-sub-section 1 of section16, where it appears to the Central Provident Fund
Commissioner, whether on an application made to him in this behalf or otherwise,
that the employer and the majority of employees in relation to any establishment
have agreed that the provisions of this Act should be made applicable to the
establishment, he may, by notification in the Official Gazette, apply the
provisions of this Act to that establishment on and from the date of such
agreement or from any subsequent date specified in such agreement.
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(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.
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2. Definitions. - In this Act, unless the context otherwise requires, -
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(a) “Appropriate Government” means -
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(i) in relation to an establishment belonging to, or under the control of, the
Central Government or in relation to, an establishment connected with a railway
company, a major port, a mine or an oil-filed or a controlled industry or in
relation to an establishment having departments or branches in more than one
State, the Central Government: and
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(ii) in relation to any other establishment, the State Government:
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(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;
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(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- |
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(i) the cash value of any food concession;
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(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; |
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(iii) any presents made by the employer;
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(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; |
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(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;
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(e) “employer” means-
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(i) in relation to an establishment which is a factory, the owner or occupier of
the factory, including the agent of such owner or occupier, the legal
representative of a deceased owner or occupier and, where a person has been
named as a manager of the factory under clause f of sub-section 1 of section 7
of the Factories Act, 1948 (63 of 1948), the person so named; and
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(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; |
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(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,-
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(i) employed by or through a contractor in or in connection with the work of the
establishment;
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(ii) engaged as an apprentice, not being an apprentice engaged under the
Apprentices Act, 1961 (52 of 1961) or under the standing orders of the
establishment;
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(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; |
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(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;
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(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;
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(gg) ***
(ggg) ***
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(h) “Fund” means the Provident Fund established under a Scheme;
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(i) “industry” means any industry specified in Schedule I, and includes any
other industry added to the Schedule by notification under section 4;
(ia) “Insurance Fund” means the Deposit-linked Insurance Scheme framed under
sub-section 2 of section 6C;
(ib) “Insurance Scheme” means the Employees’ Deposit-linked Insurance Scheme
framed under sub-section 1 of section 6C;
(ic) “manufacture” or “manufacturing process” means any process for making,
altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning,
breaking up, demolishing or otherwise treating or adapting any article or
substance with a view to its use, sale, transport, delivery or disposal;
(j) “member” means a member of the Fund;
(k)“occupier of a factory” means the person, who has ultimate control over the
affairs of the factory, and, where the said affairs are entrusted to a managing
agent, such agent shall be deemed to be the occupier of the factory;
(kA) “Pension Fund” means the Employees’ Pension Fund established under
sub-section 2 of section 6A;
(kB) “Pension Scheme” means the Employees’ Pension Scheme framed under
sub-section 1 of section 6A;
(ka) “prescribed” means prescribed by rules made under this Act;
(kb) “Recovery Officer” means any officer of the Central Government, State
Government or the Board of Trustees constituted under section 5A, who may be
authorised by the Central Government, by notification in the Official Gazette,
to exercise the powers of a Recovery Officer under this Act;
(l) “Scheme” means the Employees’ Provident Funds scheme framed under section
5;
(l1) “superannuation”, in relation to an employee, who is the member of the
Pension Scheme, means the attainment, by the said employee, of the age of
fifty-eight years.
(m) “Tribunal” means the Employees’ Provident Funds Appellate Tribunal
constituted under section 7D.
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2A. Establishments to include all departments and branches. -
For the removal of doubts, it is hereby declared that where an establishment
consists of different departments or has branches, whether situate in the same
place or in different places, all such departments or branches shall be treated
as parts of the same establishment.
3. Power to apply Act to an establishment which has a common provident
fund with another establishment. - Where immediately before this Act
becomes applicable to an establishment there is in existence a provident fund
which is common to the employees employed in that establishment and employees in
any other establishment, the Central Government may, by notification in the
Official Gazette direct that the provisions of this Act shall also apply to such
other establishment.
4. Power to add to Schedule I. –
(1) The Central Government may, by notification in the Official
Gazette, add to Schedule I any other industry in respect of the employees
whereof it is of opinion that a Provident Fund Scheme should be framed under
this Act, and thereupon the industry so added shall be deemed to be an industry
specified in Schedule I for the purpose of this Act.
(2) All notifications under sub-section 1 shall be laid before Parliament, as
soon as may be, after they are issued.
5. Employees’ Provident Funds Scheme. –
(1) The Central Government may, by notification in the Official
Gazette, frame a scheme to be called the Employees’ Provident Fund Scheme for
the establishment of provident funds under this Act for employees or for any
class of employees and specify the establishments or class of establishments to
which the said Scheme shall apply and there shall be established, as soon as may
be after the framing of the Scheme, a Fund in accordance with the provisions of
this Act and the Scheme.
(1A) The Fund shall vest in, and be administered by, the Central Board
constituted under section 5A.
(1B) Subject to the provisions of this Act, a Scheme framed under sub-section 1
may provide for all or any of the matters specified in Schedule II.
(2) A Scheme framed under sub-section 1 may provide that any of its provisions
shall take effect either prospectively or retrospectively on such date as may be
specified in this behalf in the Scheme.
5A. Central Board. -
(1) The Central Government may, by notification in the Official
Gazette, constitute, with effect from such date as may be specified therein, a
Board of Trustees for the territories to which this Act extends hereinafter in
this Act referred to as the Central Board consisting of the following persons as
members, namely:-
(a) a Chairman and a Vice-Chairman to be appointed by the Central Government;
(aa) the Central Provident Fund Commissioner, Ex officio;
(b) not more than five persons appointed by the Central Government from amongst
its officials;
(c) not more than fifteen persons representing Governments of such States as the
Central Government may specify in this behalf, appointed by the Central
Government;
(d) ten persons representing employers of the establishments to which the Scheme
applies, appointed by the Central Government after consultation with such
organisations of employers as may be recognised by the Central Government in
this behalf; and
(e) ten persons representing employees in the establishments to which the Scheme
applies, appointed by the Central Government after consultation with such
organisations of employees as may be recognised by the Central Government in
this behalf.
(2) The terms and conditions subject to which a member of the Central Board may
be appointed and the time, place and procedure of the meetings of the Central
Board shall be such as may be provided for in the Scheme.
(3) The Central Board shall subject to the provisions of section 6 and section
6C administer the Fund vested in it in such manner as may be specified in the
Scheme.
(4) The Central Board shall perform such other functions as it may be required
to perform by or under any provisions of the Scheme, the Pension Scheme and the
Insurance scheme.
(5) The Central Board shall maintain proper accounts of its income and
expenditure in such form and in such manner as the Central Government may, after
consultation with the Comptroller and Auditor-General of India, specify in the
Scheme.
(6) The accounts of the Central Board shall be audited annually by the
comptroller and Auditor-General of India and any expenditure incurred by him in
connection with such audit shall be payable by the Central Board to the
Comptroller and Auditor-General of India.
(7) The Comptroller and Auditor-General of India and any person appointed by him
in connection with the audit of the accounts of the Central Board shall have the
same rights and privileges and authority in connection with such audit as the
Comptroller and Auditor-General has, in connection with the audit of Government
accounts and, in particular, shall have the right to demand the production of
books, accounts, connected vouchers, documents and papers and inspect any of the
offices of the Central Board.
(8) The accounts of the Central Board as certified by the Comptroller and
Auditor-General of India or any other person appointed by him in this behalf
together with the audit report thereon shall be forwarded to the Central Board
which shall forward the same to the Central Government along with its comments
on the report of the Comptroller and Auditor-General.
(9) It shall be the duty of the Central Board to submit also to the Central
Government an annual report of its work and activities and the Central
Government shall cause a copy of the annual report, the audited accounts
together with the report of the Comptroller and Auditor-General of India and the
comments of the Central Board thereon to be laid before each House of
Parliament.
5AA. Executive Committee. –
(1) The Central Government may, by notification in the Official
Gazette, constitute, with effect from such date as may be specified therein, an
Executive Committee to assist the Central Board in the performance of its
functions.
(2) The Executive Committee shall consist of the following persons as members,
namely:-
(a) a Chairman appointed by the Central Government from amongst the members of
the Central Board:
(b) two persons appointed by the Central Government from amongst the persons
referred to in clause b of sub-section 1 of section 5A;
(c) three persons appointed by the Central Government from amongst the persons
referred to in clause c of sub-section 1 of section 5A;
(d) three persons representing the employers elected by the Central Board from
amongst the persons referred to in clause d of sub-section 1 of section 5A;
(e) three persons representing the employees elected by the Central Board from
amongst the persons referred to in clause e of sub-section 1 of section 5A;
(f) the Central Provident Fund Commissioner, ex-officio.
(3) The terms and conditions subject to which a member of the Central Board may
be appointed or elected to the Executive Committee and the time, place and
procedure of the meetings of the Executive Committee shall be such as may be
provided for in the Scheme.
5B. State Board.-
(1) The Central Government may, after consultation with the Government of any
State, by notification in the Official Gazette, constitute for that State a
Board of Trustees hereinafter in this Act referred to as the State Board in such
manner as may be provided for in the Scheme.
(2) A State Board shall exercise such powers and perform such duties as the
Central Government may assign to it from time to time.
(3) The terms and conditions subject to which a member of a State Board may be
appointed and the time, place and procedure of the meetings of a State Board
shall be such as may be provided for in the Scheme.
5C. Board of Trustees to be body corporate.- Every Board of
Trustees constituted under section 5A or section 5B shall be a body corporate
under the name specified in the notification constituting it, having perpetual
succession and a common seal and shall by the said name sue and be sued.
5D. Appointment of officers. –
(1) The Central Government shall appoint a Central Provident Fund Commissioner
who shall be the chief executive officer of the Central Board and shall be
subject to the general control and superintendence of that Board.
(2) The Central Government may also appoint a Financial Adviser and Chief
Accounts Officer to assist the Central Provident Fund Commissioner in the
discharge of his duties.
(3) The Central Board may appoint, subject to the maximum scale of pay, as may
be specified in the Scheme, as many Additional Central Provident Fund
Commissioners, Deputy Provident Fund Commissioners, Regional Provident Fund
Commissioners, Assistant Provident Fund Commissioners and such other officers
and employees as it may consider necessary for the efficient administration of
the Scheme, the Pension Scheme and the Insurance Scheme.
(4) No appointment to the post of the Central Provident Fund Commissioner or an
Additional Central Provident Fund Commissioner or a Financial Adviser and Chief
Accounts Officer or any other post under the Central Board carrying a scale of
pay equivalent to the scale of pay of any Group ‘A’ or Group ‘B’ post under the
Central Government shall be made except after consultation with the Union Public
Service Commission: Provided that no such consultation shall be necessary in
regard to any such appointment –
(a) for a period not exceeding one year; or
(b) if the person to be appointed is at the time of his appointment-
(i) a member of the Indian Administrative Service, of
(ii) in the service of the Central Government or a State Government or the
Central Board in a Group ‘A’ or Group ‘B’ post.
(5) A state Board may, with the approval of the State Government concerned,
appoint such staff as it may consider necessary.
(6) The method of recruitment, salary and allowances, discipline and other
conditions of service of the Central Provident Fund Commissioner, and the
Financial Adviser and Chief Accounts Officer shall be such as may be specified
by the Central Government and such salary and allowances shall be paid out of
the fund.
(7) (a) The method of recruitment, salary and allowances, discipline and other
conditions of service of the Additional Central Provident Fund Commissioner,
Deputy Provident Fund Commissioner, Regional Provident Fund Commissioner,
Assistant Provident Fund Commissioner and other officers and employees of the
Central Board shall be such as may be specified by the Central Board in
accordance with the rules and orders applicable to the officers and employees of
the Central Government drawing corresponding scales of pay:
Provided that where the Central Board is of the opinion that it is necessary to
make a departure from the said rules or orders in respect of any of the matters
aforesaid, it shall obtain the prior approval of the Central Government.
(b) In determining the corresponding scales of pay of officers and employees
under clause a, the Central Board shall have regard to the educational
qualifications, method of recruitment, duties and responsibilities of such
officers and employees under the Central Government and in case of any doubt,
the Central Board shall refer the matter to the Central Government whose
decision thereon shall be final.
(8) The method of recruitment, salary and allowances, discipline and other
conditions of service of officers and employees of a State Board shall be such
as may be specified by that Board, with the approval of the State Government
concerned.
5DD. Acts and proceedings of the Central Board or its Executive
Committee or the State Board not to be invalidated on certain grounds. –
No act done or proceeding taken by the Central Board or the Executive
Committee constituted under section 5AA or the State Board shall be questioned
on the ground merely of the existence of any vacancy in, or any defect in the
constitution of, the Central Board or the Executive Committee or the State
Board, as the case may be.
5E. Delegation. - The Central Board may delegate to the
Executive Committee or to the Chairman of the Board or to any of its officers
and a State Board may delegate to its Chairman or to any of its officers,
subject to such conditions and limitations, if any, as it may specify, such of
its powers and functions under this Act as it may deem necessary for the
efficient administration of the Scheme, the Pension Scheme and the Insurance
Scheme.
6. Contributions and matters which may be provided for in Schemes. –
The contribution which shall be paid by the employer to the Fund shall
be ten percent. Of the basic wages, dearness allowance and retaining allowance,
if any, for the time being payable to each of the employees whether employed by
him directly or by or through a contractor, and the employee’s contribution
shall be equal to the contribution payable by the employer in respect of him and
may, if any employee so desires, be an amount exceeding ten percent of his basic
wages, dearness allowance and retaining allowance if any, subject to the
condition that the employer shall not be under an obligation to pay any
contribution over and above his contribution payable under this section:
Provided that in its application to any establishment or class of establishments
which the Central Government, after making such inquiry as it deems fit, may, by
notification in the Official Gazette specify, this section shall be subject to
the modification that for the words “ten percent”, at both the places where they
occur, the words “12 percent” shall be substituted: Provided further that where
the amount of any contribution payable under this Act involves a fraction of a
rupee, the Scheme may provide for rounding off of such fraction to the nearest
rupee, half of a rupee, or quarter of a rupee.
Explanation I – For the purposes of this section dearness allowance shall be
deemed to include also the cash value of any food concession allowed to the
employee.
Explanation II. – For the purposes of this section, “retaining allowance” means
allowance payable for the time being to an employee of any factory or other
establishment during any period in which the establishment is not working, for
retaining his services.
6A. Employees’ Pension Scheme. –
(1) The Central Government may, by notification in the Official Gazette, frame a
scheme to be called the Employees’ Pension Scheme for the purpose of providing
for –
(a) superannuation pension, retiring pension or permanent total disablement
pension to the employees of any establishment or class of establishments to
which this Act applies; and
(b) Widow or widower’s pension, children pension or orphan pension payable to
the beneficiaries of such employees.
(2) Notwithstanding anything contained in section 6, there shall be established
, as soon as may be after framing of the Pension Scheme, a Pension Fund into
which there shall be paid, from time to time, in respect of every employee who
is a member of the Pension Scheme, -
(a) such sums from the employer’s contribution under section 6, not exceeding
eight and one-third per cent of the basic wages, dearness allowance and
retaining allowance, if any, of the concerned employees, as may be specified in
the Pension Scheme;
(b) such sums as are payable by the employers of exempted establishments under
sub-section (6) of section 17;
(c) the net assets of the Employees’ Family Pension as on the date of
establishment of the Pension Fund;
(d) such sums as the central Government may, after due appropriation by
Parliament by law in this behalf, specify.
(3) On the establishment of the Pension Fund, the Family Pension Scheme
hereinafter referred to as the ceased scheme shall cease to operate and all
assets of the ceased scheme shall vest in and shall stand transferred to, and
all liabilities under the ceased scheme shall be enforceable against, the
Pension Fund and the beneficiaries under the ceased scheme shall be entitled to
draw the benefits, not less than the benefits, they were entitled to under the
ceased scheme, from the Pension fund.
(4) Pension Fund shall vest in and be administered by the Central Board in such
manner as may be specified in the Pension Scheme.
(5) Subject to the provisions of this Act, the Pension Scheme may provide for
all or any of the matters specified in Schedule III.
(6) The Pension Scheme may provide that all or any of its provisions shall take
effect either prospectively or retrospectively on such date as may be specified
in that behalf in that scheme.
(7) A Pension Scheme, framed under sub-section 1 shall be laid, as soon as may
be after it is made, before each House of Parliament, while it is in session,
for a total period of thirty days which may be comprised in one session or in
two or more successive sessions, and if, before the expiry of the session
immediately following the session or the successive sessions aforesaid, both
Houses agree in making any modification in the scheme or both Houses agree that
the scheme should not be made, the scheme shall thereafter have effect only in
such modified form or be of no effect, as the case may be; so, however, that any
such modification or annulment shall be without prejudice to the validity of
anything previously done under the scheme.
6C. Employees’ Deposit-linked Insurance Scheme. -
(1) The Central Government may, by notification in the Official
Gazette, frame a scheme to be called the Employees’ Deposit-linked Insurance
Scheme for the purpose of providing life insurance benefits to the employees of
any establishment or class of establishments to which this Act applies.
(2) There shall be established, as soon as may be after the framing of Insurance
Scheme, a Deposit-linked Insurance Fund into which shall be paid by the employer
from time to time in respect of every such employee in relation to whom he is
the employer, such amount, not being more than one per cent of the aggregate of
the basic wages, dearness allowance and retaining allowance if any for the time
being payable in relation to such employee as the Central Government may, by
notification in the Official Gazette, specify.
Explanation. - For the purposes of this sub-section, the expressions “dearness
allowance’ and ‘retaining allowance’ have the same meanings as in section 6.
(3) ***
(4) (a) The employer shall pay into the Insurance Fund such further sums of
money, not exceeding one-fourth of the contribution which he is required to make
under sub-section 2, as the Central Government may, from time to time, determine
to meet all the expenses in connection with the administration of the Insurance
Scheme other than the expenses towards the cost of any benefits provided by or
under that Scheme.
(b) ***
(5) The Insurance Fund shall vest in the Central Board and be administered by it
in such manner as may be specified in the Insurance Scheme.
(6) The insurance Scheme may provide for all or any of the matters specified in
Schedule IV.
(7) The Insurance Scheme may provide that any of its provision shall take effect
either prospectively or retrospectively on such date as may be specified in this
behalf in that Scheme.
6D. Laying of Schemes before Parliament. - Every scheme framed
under section 5, section 6A and section 6C shall be laid, as soon as may be
after it is framed, before each House of Parliament, while it is in session, for
a total period of thirty days which may be comprised in one session or in two or
more successive sessions, and if, before the expiry of the session immediately
following the session or the successive sessions aforesaid, both Houses agree in
making any modification in the scheme, or both Houses agree that the scheme
should not be framed, the scheme shall thereafter have effect only in such
modified form or be of no effect, as the case may be; so however, that any such
modification or annulment shall be without prejudice to the validity of anything
previously done under that scheme.
7. Modification of Scheme –
(1) The Central Government may, by notification in the Official Gazette
add to, amend or vary either prospectively or retrospectively, the Scheme, the
Pension Scheme or the Insurance Scheme, as the case may be.
(2) Every notification issued under sub-section 1 shall be laid, as soon as may
be after it is issued, before each House of Parliament while it is in session,
for a total period of thirty days, which may be comprised in one session or in
two or more successive sessions, and if, before the expiry of the session
immediately following the session or the successive sessions aforesaid, both
Houses agree in making any modification in the notification, or both Houses
agree that the notification should not be issued, the notification shall
thereafter have effect only in such modified form or be of no effect, as the
case may be ; so, however, that any such modification or annulment shall be
without prejudice to the validity of anything previously done under that
notification.
7A. Determination of moneys due from employers. –
(1) The Central Provident Fund Commissioner, any Additional Central Provident
Fund Commissioner, any Deputy Provident Fund Commissioner, any Regional
Provident Fund Commissioner or any Assistant Provident Fund Commissioner may, by
order,
(a) in a case where a dispute arises regarding the applicability of this Act to
an establishment, decide such dispute; and
(b) determine the amount due from any employer under any provision of this Act,
the Scheme or the Pension Scheme or the Insurance Scheme, as the case may be,
and for any of the aforesaid purposes may conduct such inquiry as he may deem
necessary.
(2) The officer conducting the inquiry under sub-section 1 shall, for the
purposes of such inquiry have the same powers as are vested in a court under the
code of Civil Procedure, 1908 (5 of 1908), for trying a suit in respect of the
following matters, namely:-
(a) enforcing the attendance of any person or examining him on oath:
(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 a judicial proceeding within the
meaning of sections 193 and 228, and for the purpose of section 196 of the
Indian Penal Code 45 of 1960.
(3) No order shall be made under sub-section 1, unless the employer concerned is
given a reasonable opportunity of representing his case.
(3A) Where the employer, employee or any other person required to attend the
inquiry under sub-section 1 fails to attend such inquiry without assigning any
valid reason or fails to produce any document or to file any report or return
when called upon to do so, the officer conducting the inquiry may decide the
applicability of the Act or determine the amount due from any employer, as the
case may be, on the basis of the evidence adduced during such inquiry and other
documents available on record.
(4) Where an order under sub-section 1 is passed against an employer ex-parte,
he may, within three months from the date of communication of such order, apply
to the officer for setting aside such order and if he satisfies the officer that
the show cause notice was not duly served or that he was prevented by any
sufficient cause from appearing when the inquiry was held, the officer shall
make an order setting aside his earlier order and shall appoint a date for
proceeding with the inquiry:
Provided that no such order shall be set aside merely on the ground that there
has been an irregularity in the service of the show cause notice if the officer
is satisfied that the employer had notice of the date of hearing and had
sufficient time to appear before the officer.
Explanation.- Where an appeal has been preferred under this Act against an order
passed ex parte and such appeal has been disposed of otherwise than on the
ground that the appellant has withdrawn the appeal, no application shall lie
under this sub-section for setting aside the ex parte order.
(5) No order passed under this section shall be set aside on any application
under sub-section 4 unless notice thereof has been served on the opposite party.
7B. Review of orders passed under Section 7A. -
(1) Any person aggrieved by an order made under sub-section 1 of
section 7A, but from which no appeal has been preferred under this Act, and who,
from the discovery of new and important matter or evidence which, after the
exercise of due diligence was not within his knowledge or could not be produced
by him at the time when the order was made, or on account of some mistake or
error apparent on the face of the record or for any other sufficient reason,
desires to obtain a review of such order may apply for a review of that order to
the officer who passed the order: Provided that such officer may also on his own
motion review his order if he is satisfied that it is necessary so to do on any
such ground.
(2) Every application for review under sub-section 1 shall be filed in such form
and manner and within such time as may be specified in the Scheme.
(3) Where it appears to the officer receiving an application for review that
there is no sufficient ground for a review, he shall reject the application.
(4) Where the officer is of opinion that the application for review should be
granted, be shall grant the same: Provided that, -
(a) no such application shall be granted without previous notice to all the
parties before him to enable them to appear and be heard in support of the order
in respect of which a review is applied for, and
(b) no such application shall be granted on the ground of discovery of new
matter or evidence which the applicant alleges was not within his knowledge or
could not be produced by him when the order was made, without proof of such
allegation.
(5) No appeal shall lie against the order of the officer rejecting an
application for review, but an appeal under this Act shall lie against an order
passed under review as if the order passed under review were the original order
passed by him under section 7A.
7C. Determination of escaped amount. - Where an order
determining the amount due from an employer under section 7A or section 7B has
been passed and if the officer who passed the orders –
(a) has reason to believe that by reason of the omission or failure on the part
of the employer to make any document or report available, or to disclose, fully
and truly, all material facts necessary for determining the correct amount due
from the employer, any amount so due from such employer for any period has
escaped his notice;
(b) has, in consequence of information in his possession, reason to believe that
any amount to be determined under section 7A or section 7B has escaped from his
determination for any period notwithstanding that there has been no omission or
failure as mentioned in clause a on the part of the employer, he may, within a
period of five years from the date of communication of the order passed under
section 7A or section 7B, re-open the case and pass appropriate orders
re-determining the amount due from the employer in accordance with the
provisions of this Act: Provided that no order re-determining the amount due
from the employer shall be passed under this section unless the employer is
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 a Presiding Officer of a
Tribunal hereinafter referred to as the Presiding Officer, unless he is, or has
been, or is qualified to be, -
(i) a Judge of a High Court; or
(ii) a District Judge.
7E. Term of office. - The Presiding Officer of a Tribunal shall
hold office for a term of five years from the date on which he enters upon his
office or until he attains the age of sixty-two years, whichever is earlier.
7F. Resignation. –
(1) The Presiding Officer may, by notice in writing under his hand addressed to
the Central Government, resign his office; Provided that the Presiding Officer
shall, unless he is permitted by the Central Government to relinquish his office
sooner, continue to hold office until the expiry of three months from the date
of receipt of such notice or until a person duly appointed as his successor
enters upon his office or until the expiry of his term of office, whichever is
the earliest.
(2) The Presiding Officer shall not be removed from his office except by an
order made by the President on the ground of proved misbehaviour or incapacity
after an inquiry made by a Judge of the High Court in which such Presiding
Officer had been informed of the charges against him and given a reasonable
opportunity of being heard in respect of those charges.
(3) The Central Government may, by rules, regulate the procedure for the
investigation of misbehaviour or incapacity of the Presiding Officer.
7G. Salary and allowances and other terms and conditions of service of
Presiding Officer. - The salary and allowances payable to, and the
other terms and conditions of service including pension, gratuity and other
retirement benefits of, the Presiding Officer shall be such as may be
prescribed: Provided that neither the salary and allowances nor the other terms
and conditions of service of the Presiding Officer shall be varied to his
disadvantage after his appointment.
7H. Staff of the Tribunal. -
(1) The Central Government shall determine the nature and categories of the
officers and other employees required to assist a Tribunal in the discharge of
its functions and provide the Tribunal with such officers and other employees as
it may think fit.
(2) The officers and other employees of a Tribunal shall discharge their
functions under the general superintendence of the Presiding Officer.
(3) The salaries and all allowances and other conditions of service of the
officers and other employees of a Tribunal shall be such as may be prescribed.
7 – I. Appeals to the Tribunal. –
(1) Any person aggrieved by a notification issued by the Central
Government, or an order passed by the Central Government, or any authority,
under the proviso to sub-section 3, or sub-section4, of section I, or section3,
or sub-section 1 of section 7A, or section 7B except an order rejecting an
application for review referred to in sub-section 5 thereof, or section 7C, or
section 14B may prefer an appeal to a Tribunal against such order.
(2) Every appeal under sub-section 1 shall be filed in such form and manner,
within such time and be accompanied by such fees, as may be prescribed.
7 – J. Procedure of Tribunals. –
(1) A Tribunal shall have power to regulate its own procedure in all matters
arising out of the exercise of its powers or of the discharge of its functions
including the places at which the Tribunal shall have its sittings.
(2) A Tribunal shall, for the purpose of discharging its functions, have all the
powers which are vested in the officers referred to in section 7A and any
proceeding before the Tribunal shall be deemed to be a judicial proceeding
within the meaning of sections 193 and 228, and for the purpose of section 196,
of the Indian Penal Code (45 of 1860) and the Tribunal shall be deemed to be a
civil court for all the purposes of section 195 and Chapter XXVI of the Code of
Criminal Procedure, 1973 (2 of 1974).
7K. Right of appellant to take assistance of legal practitioner and of
Government, etc., to appoint presenting officers. –
(1) A person preferring an appeal to a Tribunal under this Act may either appear
in person or take the assistance of a legal practitioner of his choice to
present his case before the Tribunal.
(2) The Central Government or a State Government or any other authority under
this Act may authorise one or more legal practitioners or any of its officers to
act as presenting officers and every person so authorised may present the case
with respect to any appeal before a Tribunal.
7L. Orders of Tribunal. –
(1) A Tribunal may, after giving the parties to the appeal, an opportunity of
being heard, pass such orders thereon as it thinks fit, confirming, modifying or
annulling the order appealed against or may refer the case back to the authority
which passed such order with such directions as the tribunal may think fit, for
a fresh adjudication or order, as the case may be, after taking additional
evidence, if necessary.
(2) A Tribunal may, at any time within five years from the date of its order,
with a view to rectifying any mistake apparent from the record, amend any order
passed by it under sub-section 1 and shall make such amendment in the order if
the mistake is brought to its notice by the parties to the appeal: Provided that
an amendment which has the effect of enhancing the amount due from, or otherwise
increasing the liability of, the employer shall not be made under this
sub-section, unless the Tribunal has given notice to him of its intention to do
so and has allowed him a reasonable opportunity of being heard.
(3) A Tribunal shall send a copy of every order passed under this section to the
parties to the appeal.
(4) Any order made by a Tribunal finally disposing of an appeal shall not be
questioned in any court of law.
7M. Filling up of vacancies. – If, for any reason, a vacancy
occurs in the office of the Presiding Officer, the Central Government shall
appoint another person in accordance with the provisions of this Act, to fill
the vacancy and the proceedings may be continued before a Tribunal from the
stage at which the vacancy is filled.
7N. Finality of orders constituting a Tribunal. – No order of
the Central Government appointing any person as the Presiding Officer shall be
called in question in any manner, and no act or proceeding before a Tribunal
shall be called in question in any manner on the ground merely of any defect in
the constitution of such Tribunal.
7–O. Deposit of amount due, on filing appeal. – No appeal by
the employer shall be entertained by a Tribunal unless he has deposited with it
seventy-five per cent of the amount due from him as determined by an officer
referred to in section 7A: Provided that the Tribunal may, for reasons to be
recorded in writing, waive or reduce the amount to be deposited under this
section.
7P. Transfer of certain applications to Tribunals. – All
applications which are pending before the Central Government under section 19A,
shall stand transferred to a Tribunal exercising jurisdiction in respect of
establishments in relation to which such applications had been made as if such
applications were appeals preferred to the Tribunal.
7Q. The employer shall be liable to pay simple interest at the
rate of twelve per cent per annum or at such higher rate as may be specified in
the Scheme on any amount due from him under this Act from the date on which the
amount has become so due till the date of its actual payment: Provided that
higher rate of interest specified in the Scheme shall not exceed the lending
rate of interest charged by any scheduled bank.
8. Mode of recovery of moneys due from employers– any amount due -
(a) from the employer in relation to an establishment to which any
Scheme or the Insurance Scheme applies in respect of any contribution payable to
the Fund or, as the case may be, the Insurance Fund, damages recoverable under
section 14B, accumulations required to be transferred under sub-section 2 of
section 15 or under sub-section 5 of section 17 or any charges payable by him
under any other provision of this Act or of any provision of the Scheme or the
Insurance Scheme; or
(b) from the employer in relation to an exempted establishment in respect of any
damages recoverable under section 14B or any charges payable by him the
appropriate Government under any provision of this Act or under any of the
conditions specified under section 17 or in respect of the contribution payable
by him towards the Pension Scheme under the said section 17, may, if the amount
is in arrear, be recovered in the manner specified in section 8B to 8G.
8A. Recovery of moneys by employers and contractors.
(1) The amount of contribution that is to say, the employer’s contribution as
well as the employee’s contribution in pursuance of any Scheme and the
employer’s contribution in pursuance of the Insurance Scheme and any charges for
meeting the cost of administering the Fund paid or payable by an employer in
respect of an employee employed by or through a contractor may be recovered by
such employer from the contractor, either by deduction from any amount payable
to the contractor under any contract or as a debt payable by the contractor.
(2) A contractor from whom the amounts mentioned in sub-section 1 may be
recovered in respect of any employee employed by or through him, may recover
from such employee the employee’s contribution under any Scheme by deduction
from the basic wages, dearness allowance and retaining allowance if any payable
to such employee.
(3) Notwithstanding any contract to the contrary, no contractor shall be
entitled to deduct the employer’s contribution or the charges referred to in
sub-section 1 from the basic wages, dearness allowance, and retaining allowance
if any payable to an employee employed by or through him or otherwise to recover
such contribution or charges from such employee.
Explanation. – In this section, the expressions “dearness allowance” and
“retaining allowance” shall have the same meanings as in section 6.
8B. Issue of certificate to the Recovery Officer.
(1) Where any amount is in arrear under section8, the authorised
officer may issue, to the Recovery Officer, a certificate under his signature
specifying the amount of arrears and the Recovery Officer, on receipt of such
certificate, shall proceed to recover the amount specified therein from the
establishment or, as the case may be, the employer by one or more of the modes
mentioned below:-
(a) attachment and sale of the movable or immovable property of the
establishment or, as the case may be, the employer;
(b) arrest of the employer and his detention in prison;
(c) appointing a receiver for the management of the movable or immovable
properties of the establishment or, as the case may be, the employer: Provided
that the attachment and sale of any property under this section shall first be
effected against the properties of the establishment and where such attachment
and sale is insufficient for recovery the whole of the amount of arrears
specified in the certificate, the Recovery Officer may take such proceedings
against the property of the employer for recovery of the whole or any part of
such arrears.
(2) The authorised officer may issue a certificate under sub-section 1,
notwithstanding that proceedings for recovery of the arrears by any other mode
have been taken.
8C. Recovery officer to whom certificate is to be forwarded.
(1) The authorised officer may forward the certificate referred to in section 8B
to the Recovery Officer within whose jurisdiction the employer –
(a) carries on his business or profession or within whose jurisdiction the
principal place of his establishment is situated; or
(b) resides or any movable or immovable property of the establishment or the
employer is situated.
(2) Where an establishment or the employer has property within the jurisdiction
of more than one Recovery Officers and the Recovery Officer to whom a
certificate is sent by the authorised officer -
(a) is not able to recover the entire amount by the sale of the property movable
or immovable, within his jurisdiction; or
(b) is of the opinion that, for the purpose of expediting or securing the
recovery of the whole or any part of the amount, it is necessary so to do,
he may send the certificate or, where only a part of the amount is to be
recovered, a copy of the certificate certified in the prescribed manner and
specifying the amount to be recovered to the Recovery Officer within whose
jurisdiction the establishment or the employer has property or the employer
resides, and thereupon that Recovery Officer shall also proceed to recover the
amount due under this section as if the certificate or the copy thereof had been
the certificate sent to him by the authorised officer.
8D. Validity of certificate, and amendment thereof.
(1) When the authorised officer issues a certificate to a Recovery
Officer under section 8B, it shall not be open to the employer to dispute before
the Recovery Officer the correctness of the amount, and no objection to the
certificate on any other ground shall also be entertained by the Recovery
Officer.
(2) Notwithstanding the issue of a certificate to a Recovery Officer, the
authorised officer shall have power to withdraw the certificate or correct any
clerical or arithmetical mistake in the certificate by sending an intimation to
the Recovery Officer.
(3) The authorised officer shall intimate to the Recovery Officer any orders
withdrawing or canceling a certificate or any correction made by him under
sub-section 2 or any amendment made under sub-section 4 of section 8E.
8E. Stay of proceedings under certificate and amendment or withdrawal
thereof.
(1) Notwithstanding that a certificate has been issued to the Recovery
Officer for the recovery of any amount, the authorised officer may grant time
for the payment of the amount, and thereupon the Recovery Officer shall stay the
proceedings until the expiry of the time so granted.
(2) Where a certificate for the recovery of amount has been issued, the
authorised officer shall keep the Recovery Officer informed of any amount paid
or time granted for payment, subsequent to the issue of such certificate.
(3) Where the order giving rise to a demand of amount for which a certificate
for recovery has been issued has been modified in appeal or other proceeding
under this Act, and, as a consequence thereof, the demand is reduced but the
order is the subject-matter of further proceeding under this Act, the authorised
officer shall stay the recovery of such part of the amount of the certificate as
pertains to the said reduction for the period for which the appeal or other
proceeding remains pending.
(4) Where a certificate for the recovery of amount has been issued and
subsequently the amount of the outstanding demand is reduced as a result of an
appeal or other proceeding under this Act, the authorised officer shall, when
the order which was the subject-matter of such appeal or other proceeding has
become final and conclusive, amend the certificate or withdraw it, as the case
may be.
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
modes provided in this section.
(2) If any amount is due from any person to any employer who is in arrears, the
Central Provident Fund Commissioner or any other officer authorised by the
Central Board in this behalf may require such person to deduct from the said
amount the arrears due from such employer under this Act, and such person shall
comply with any such requisition and shall pay the sum so deducted to the credit
of the Central Provident Fund Commissioner or the officer so authorised, as the
case may be: Provided that nothing in this sub-section shall apply to any part
of the amount exempt from attachment in execution of a decree of a civil court
under section 60 of the Code of Civil Procedure, 1908 (5 of 1908).
(3) (i) The Central Provident Fund Commissioner or any other officer authorised
by the Central Board in this behalf may, at any time or from time to time, by
notice in writing, require any person from whom money is due or may become due
to the employer or, as the case may be, the establishment or any person who
holds or may subsequently hold money for or on account of the employer or as the
case may be, the establishment, to pay to the Central Provident Fund
Commissioner either forthwith upon the money becoming due or being held or at or
within the time specified in the notice not being before the money becomes due
or is held so much of the money as is sufficient to pay the amount due from the
employer in respect of arrears or the whole of the money when it is equal to or
less than that amount.
(ii) A notice under this sub-section may be issued to any person who holds or
may subsequently hold any money for or on account of the employer jointly with
any other person and for the purposes of this sub-section, the shares of the
joint holders in such account shall be presumed, until the contrary is proved,
to be equal.
(iii) A copy of the notice shall be forwarded to the employer at his last
address known to the Central Provident Fund Commissioner or as the case may be,
the officer so authorised and in the case of a joint account to all the joint
holders at their last addresses known to the Central Provident Fund Commissioner
or the officer so authorised.
(iv) Save as otherwise provided in this sub-section, every person to whom a
notice is issued under this sub-section shall be bound to comply with such
notice, and, in particular, where any such notice is issued to a post office,
bank or an insurer, it shall not be necessary for any pass book, deposit
receipt, policy or any other document to be produced for the purpose of any
entry, endorsement or the like being made before payment is made notwithstanding
any rule, practice or requirement to the contrary.
(v) Any claim respecting any property in relation to which a notice under this
sub-section has been issued arising after the date of the notice shall be void
as against any demand contained in the notice.
(vi) Where a person to whom a notice under this sub-section is sent objects to
it by a statement on oath that the sum demanded or any part thereof is not due
to the employer or that he does not hold any money for or on account of the
employer, then nothing contained in this sub-section shall be deemed to require
such person to pay any such sum or part thereof, as the case may be, but if it
is discovered that such statement was false in any material particular, such
person shall be personally liable to the Central Provident Fund Commissioner or
the officer so authorised to extent of his own liability to the employer on the
date of the notice, or to the extent of the employer’s liability for any sum due
under this Act, whichever is less.
(vii) The Central Provident Fund Commissioner or the officer so authorised may,
at any time or from time to time, amend or revoke any notice issued under this
sub-section or extend the time for making any payment in pursuance of such
notice.
(viii) The Central Provident Fund Commissioner or the officer so authorised
shall grant a receipt for any amount paid in compliance with a notice issued
under this sub-section, and the person so paying shall be fully discharged from
his liability to the employer to the extent of the amount so paid.
(ix) Any person discharging any liability to the employer after the receipt of a
notice under this sub-section shall be personally liable to the Central
Provident Fund Commissioner or the officer so authorised to the extent of his
own liability to the employer so discharged or to the extent of the employer’s
liability for any sum due under this Act, whichever is less.
(x) If the person to whom a notice under this sub-section is sent fails to make
payment in pursuance thereof to the Central Provident Fund Commissioner or the
officer so authorised he shall be deemed to be an employer in default in respect
of the amount specified in the notice and further proceedings may be taken
against him for the realisation of the amount as if it were an arrear due from
him, in the manner provided in sections 8B to 8E and the notice shall have the
same effect as an attachment of a debt by the Recovery Officer in exercise of
his powers under section 8B.
(4) The Central Provident Fund Commissioner or the officer authorised by the
Central Board in this behalf may apply to the court in whose custody there is
money belonging to the employer for payment to him of the entire amount of such
money, or if it is more than the amount due, an amount sufficient to discharge
the amount due.
(5) The Central Provident Fund Commissioner or any officer not below the rank of
Assistant Provident Fund Commissioner may, if so authorised by the Central
Government by general or special order, recover any arrears of amount due from
an employer or, as the case may be, from the establishment by distraint and sale
of his or its movable property in the manner laid down in the Third Schedule to
the Income-Tax Act, 1961 (43 of 1961).
8G. Application of certain provisions of Income-tax Act. The
provisions of the Second and Third Schedules to the Income-tax Act, 1961 (43 of
1961) and the Income-tax Certificate Proceedings rules, 1962, as in force from
time to time, shall apply with necessary modifications as if the said provisions
and the rules referred to the arrears of the amount mentioned in section 8 of
this Act instead of to the income-tax: Provided that any reference in the said
provisions and the rules to the “assessee” shall be construed as a reference to
an employer as defined in this Act.
9. Fund to be recognised under Act 11 of 1922. For the purpose
of the Indian Income-tax Act, 1922 (11 of 1922), the Fund shall be deemed to be
a recognised provident fund within the meaning of Chapter IXA of that Act:
Provided that nothing contained in the said Chapter shall operate to render
ineffective any provision of the Scheme under which the Fund is established,
which is repugnant to any of the provisions of that Chapter or of the rules made
thereunder.
10. Protection against attachment.
(1) amount standing to the credit of any member in Fund or of any
exempted employee in a provident fund shall not in any way be capable of being
assigned or charged and shall not be liable to attachment under any decree or
order of any court in respect of any debt or liability incurred by the member or
the exempted employee, and neither the official assignee appointed under the
Presidency Towns Insolvency Act, 1909 (3 of 1909) nor any receiver appointed
under the Provincial Insolvency Act, 1920 (5 of 1920), shall be entitled to have
any claim on, any such amount.
(2) Any amount standing to the credit of a member in the fund or of an exempted
employee in a provident fund at the time of his death and payable to his nominee
under the Scheme or the rules of the provident fund shall, subject to any
deduction authorised by the said Scheme or rules, vest in the nominee and shall
be free from any debt or other liability incurred by the deceased or the nominee
before the death of the member or of exempted employee and shall also not be
liable to attachment under any decree or order of any court.
(3) The provisions of sub-section 1 and sub-section 2 shall, so far as may be,
apply in relation to the pension or any other amount, payable under the Pension
Scheme and also in relation to any amount payable under the Insurance Scheme as
they apply in relation to any amount payable out of the Fund.
11. Priority of payment of contributions over other debts.
(1) Where any employer is adjudicated insolvent or, being a company, an order
for winding up is made, the amount due -
(a) from the employer in relation to an establishment to which any Scheme or the
Insurance Scheme applies in respect of any contribution payable to the Fund or,
as the case may be, the Insurance Fund damages recoverable under section 14B,
accumulations required to be transferred under sub-section 2 of section 15 or
any charges payable by him under any other provision of this Act or of any
provision of the Scheme or the Insurance Scheme; or
(b) from the employer in relation to an exempted establishment in respect of any
contribution to the provident fund or any insurance fund in so far as it relates
to exempted employees, under the rules of the provident fund or any insurance
fund, any contribution payable by him towards the Pension Fund under sub-section
6 of section 17, damages recoverable under section 14B or any charges payable by
him to the appropriate Government under any provision of this Act, or under any
of the conditions specified under section 17, shall where the liability
therefore has accrued before the order of adjudication or winding up is made, be
deemed to be included among the debts which under section 49 of the Presidency
Towns Insolvency Act, 1909 (3 of 1909) or under section 61 of the Provincial
Insolvency Act, 1920 (5 of 1920) or under section 530 of the Companies Act, 1956
(1 of 1956), are to be paid in priority to all other debts in the distribution
of the property of the insolvent or the assets of the company being wound up, as
the case may be.
Explanation. - In this sub-section, and in section 17, “insurance fund” means
any fund established by an employer under any scheme for providing benefits in
the nature of life insurance to employees, whether linked to their deposits in
provident fund or not, without payment by the employees of any separate
contribution or premium in that behalf.
(2) Without prejudice to the provisions of sub-section 1, if any amount is due
from an employer, whether in respect of the employee’s contribution deducted
from the wages of the employees or the employer’s contribution, the amount so
due shall be deemed to be the first charge on the assets of the establishment,
and shall, notwithstanding anything contained in any other law for the time
being in force, be paid in priority to all other debts.
12. Employer not to reduce wages, etc. No employer in relation
to an establishment to which any Scheme or the Insurance Scheme applies shall,
by reason only of his liability for the payment of any contribution to the Fund
or the Insurance Fund or any charges under this Act or the Scheme or the
Insurance Scheme reduce whether directly or indirectly, the wages of any
employee to whom the Scheme or the Insurance Scheme applies or the total quantum
of benefits in the nature of old age pension, gratuity, provident fund or life
insurance to which the employee is entitled under the terms of his employment,
express or implied.
13. Inspectors.
(1) The appropriate Government may, by notification in the Official Gazette,
appoint such persons as it thinks fit to be Inspectors for the purposes of this
Act, the Scheme, the Pension Scheme or the Insurance Scheme and may define their
jurisdiction.
(2) Any Inspector appointed under sub-section 1 may, for the purpose of
inquiring into the correctness of any information furnished in connection with
this Act or with any Scheme or the Insurance Scheme or for the purpose of
ascertaining whether any of the provisions of this Act or of any Scheme or the
Insurance Scheme have been complied with in respect of an establishment to which
any Scheme or the Insurance Scheme applies or for the purpose of ascertaining
whether the provisions of this Act or any Scheme or the Insurance Scheme are
applicable to any establishment to which the Scheme or the Insurance Scheme has
not been applied or for the purpose of determining whether the conditions
subject to which exemption was granted under section 17 are being complied with
by the employer in relation to an exempted establishment.
(a) require an employer or any contractor from whom any amount is recoverable
under section 8A to furnish such information as he may consider necessary.
(b) At any reasonable time and with such assistance, if any, as he may think
fit, enter and search any establishment or any premises connected therewith and
require any one found in charge thereof to produce before him for examination
any accounts, books, registers and other documents relating to the employment of
persons or the payment of wages in the establishment;
(c) Examine, with respect to any matter relevant to any of the purposes
aforesaid, the employer or any contractor from whom any amount is recoverable
under section 8A, his agent or servant or any other person found in charge of
the establishment or any premises connected therewith or whom the Inspector has
reasonable cause to believe to be or to have been, an employee in the
establishment;
(d) Make copies of, or take extracts from, any book, register or other document
maintained in relation to the establishment and, where he has reason to believe
that any offence under this Act has been committed by an employer, seize with
such assistance as he may think fit, such book, register or other document or
portions thereof as he may consider relevant in respect of that offence;
(e) Exercise such other powers as the Scheme may provide.
(2A) Any Inspector appointed under sub-section 1 may, for the purpose of
inquiring into the correctness of any information furnished in connection with
the Pension Scheme or for the purpose of ascertaining whether any of the
provisions of this Act or of the Pension Scheme have been complied with in
respect of an establishment to which the Pension Scheme applies, exercise all or
any of the powers conferred on him under clause a, b, clause c, or clause d
sub-section 2.
(2B) The provisions of the Code of Criminal Procedure, 1898 (5 of 1898) shall,
so far as may be, apply to any search or seizure under sub-section 2 or under
sub-section 2A, as the case may be, as they apply to any search or seizure made
under the authority of a warrant issued under section 98 of the said Code.
(3) ***
14. Penalties.
(1) Whoever, for the purpose of avoiding any payment to be made by
himself under this Act, the Scheme, the Pension Scheme or the Insurance Scheme
or of enabling any other person to avoid such payment, knowingly makes or causes
to be made any false statement or false representation shall be punishable with
imprisonment for a term which may extend to one year, or with fine of five
thousand rupees, or with both.
(1A) An employer who contravenes, or makes default in complying with, the
provisions of section 6 or clause a of sub-section 3 of section 17 in so far as
it relates to the payment of inspection charges, or paragraph 38 of the Scheme
in so far as it relates to the payment of administrative charges, shall be
punishable with imprisonment for a term which may extend to three years but –
(a) which shall not be less than one year and a fine of ten thousand rupees in
case of default in payment of the employees’ contribution which has been
deducted by the employer from the employees’ wages;
(b) which shall not be less than six months and a fine of five thousand rupees,
in any other case:
Provided that the Court may, for any adequate and special reasons to be recorded
in the judgment, impose a sentence of imprisonment for a lesser term.
(1B) An employer who contravenes, or makes default in complying with, the
provisions of section 6C, or clause a of sub-section 3A of section 17 in so far
as it relates to the payment of inspection charges, shall be punishable with
imprisonment for a term which may extend to one year but which shall not be less
than six months and shall also be liable to fine which may extend to five
thousand rupees: Provided that the Court may, for any adequate and special
reasons to be recorded in the judgment, impose a sentence of imprisonment for a
lesser term.
(2) Subject to the provisions of this Act, the Scheme, the Pension Scheme or the
Insurance Scheme may provide that any person who contravenes, or makes default
in complying with, any of the provisions thereof shall be punishable with
imprisonment for a term which may extend to one year, or with fine which may
extend to four thousand rupees, or with both.
(2A) Whoever contravenes or makes default in complying with any provision of
this Act or of any condition subject to which exemption was granted under
section 17 shall, if no other penalty is elsewhere provided by or under this Act
for such contravention or non-compliance, be punishable with imprisonment which
may extend to six months, but which shall not be less than one month, and shall
also be liable to fine which may extend to five thousand rupees.
14A. Offences by companies
(1) If the person committing an offence under this Act, the Scheme or the
Pension Scheme or the Insurance Scheme is a company, every person who at the
time the offence was committed was incharge of, and was responsible to, the
company for the conduct of the business of the company, as well as the company,
shall be deemed to be guilty of the offence and shall be liable to be proceeded
against and punished accordingly: Provided that nothing contained in this
sub-section shall render any such person liable to any punishment, if he proves
that the offence was committed without his knowledge or that he exercised all
due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section 1 where an offence under
this Act, the Scheme or the Pension Scheme or the Insurance Scheme has been
committed by a company and it is proved that the offence has been committed with
the consent or connivance of, or is attributable to, any neglect on the part of,
any Director or Manager, Secretary or other officer of the company, such
Director, Manager, Secretary or other officer shall be deemed to be guilty of
that offence and shall be liable to be proceeded against and punished
accordingly.
Explanation – For the purposes of this section, -
(a) “Company” means any body corporate and includes a firm and other association
of individuals; and
(b) “Director” in relation to a firm, means a partner in the firm.
14AA. Enhanced punishment in certain cases after previous conviction -
Whoever, having been convicted by a court of an offence punishable under this
Act, the Scheme or the Pension Scheme or the Insurance Scheme, commits the same
offence shall be subject for every such subsequent offence to imprisonment for a
term which may extend to five years, but which shall not be less than two years,
and shall also be liable to a fine of twenty five thousand rupees.
14AB. Certain offences to be cognizable - Notwithstanding
anything contained in the Code of Criminal Procedure, 1898 (5 of 1898) an
offence relating to default in payment of contribution by the employer
punishable under this Act shall be cognizable.
14AC. Cognizance and trial of offences –
(1) No Court shall take cognizance of any offence punishable under this
Act, the Scheme or the Pension Scheme or the Insurance Scheme except on a report
in writing of the facts constituting such offence made with the previous
sanction of the Central Provident Fund Commissioner or such other officer as may
be authorised by the Central Government, by notification in the Official
Gazette, in this behalf, by an Inspector appointed under Section 13.
(2) No court inferior to that of a Presidency Magistrate or a Magistrate of the
first class shall try any offence under this Act or the Scheme or the Pension
Scheme or the Insurance Scheme.
14B. Power to recover damages - Where an employer makes default
in the payment of any contribution to the Fund the Pension Fund or the Insurance
Fund or in the transfer of accumulations required to be transferred by him under
sub-section 2 of section 15 or sub-section 5 of section 17 or in the payment of
any charges payable under any other provision of this Act or of any Scheme or
Insurance Scheme or under any of the conditions specified under section 17, the
Central Provident Fund Commissioner or such other officer as may be authorised
by the Central Government, by notification in the Official Gazette, in this
behalf may recover from the employer by way of penalty such damages, not
exceeding the amount of arrears, as may be specified in the Scheme. Provided
that before levying and recovering such damages, the employer shall be given a
reasonable opportunity of being heard. Provided further that the Central Board
may reduce or waive the damages levied under this section in relation to an
establishment which is a sick industrial company and in respect of which a
scheme for rehabilitation has been sanctioned by the Board for Industrial and
Financial Reconstruction established under section 4 of the Sick Industrial
Companies (Special Provisions) Act, 1985 (1 of 1986), subject to such terms and
conditions as may be specified in the Scheme.
14C. Power of court to make orders -
(1) Where an employer is convicted of an offence of making default in
the payment of any contribution to the Fund, the Pension Fund or the Insurance
Fund or in the transfer of accumulations required to be transferred by him under
sub-section (2) of section 15 or sub-section (5) of section 17, the court may,
in addition to awarding any punishment, by order in writing require him within a
period specified in the order which the court may, if it thinks fit and on
application in that behalf from time to time, extend, to pay the amount of
contribution or transfer the accumulations, as the case may be, in respect of
which the offence was committed.
(2) Where an order is made under sub-section (1), the employer shall not be
liable under this Act in respect of the continuation of the offence during the
period or extended period, if any, allowed by the court, but if, on the expiry
of such period or extended period, as the case may be, the order of the court
has not been fully complied with, the employer shall be deemed to have committed
a further offence and shall be punished with imprisonment in respect thereof
under section 14 and shall also be liable to pay fine which may extend to one
hundred rupees for every day after such expiry on which the order has not been
complied with.
15. Special provisions relating to existing provident funds -
(1) Subject to the provisions of section 17, every employee who is a subscriber
to any provident fund or an establishment to which this Act applies shall,
pending the application of a Scheme to the establishment in which he is
employed, continue to be entitled to the benefits accruing to him under the
provident fund, and the provident fund shall continue to be maintained in the
same manner and subject to the same conditions as it would have been if this Act
had not been passed.
(2) On the application of any Scheme to an establishment, the accumulations in
any provident fund of the establishment, standing to the credit of the employees
who become members of the Fund established under the Scheme shall,
notwithstanding anything to the contrary contained in any law for the time being
in force or in any deed or other instrument establishing the provident fund but
subject to the provisions, if any, contained in the Scheme, be transferred to
the fund established under the Scheme, and shall be credited to the accounts of
the employees entitled thereto in the Fund.
16. Act not to apply to certain establishments -
(1) This Act shall not apply –
(a) to any establishment registered under the Co-operative Societies Act, 1912
(2 of 1912), or under any other law for the time being in force in any State
relating to co-operative societies employing less than fifty persons and working
without the aid of power; or
(b) to any other establishment belonging to or under the control of the Central
Government or a State Government and whose employees are entitled to the benefit
of contributory provident fund or old age pension in accordance with any Scheme
or rule framed by the Central Government or the State Government governing such
benefits; or
(c) to any other establishment set up under any Central, Provincial or State Act
and whose employees are entitled to the benefits of contributory provident fund
or old age pension in accordance with any scheme or rule framed under that Act
governing such benefits;
(2) If the Central Government is of opinion that having regard to the financial
position of any class of establishments or other circumstances of the case, it
is necessary or expedient to do so, it may, by notification in the Official
Gazette, and subject to such conditions, as may be specified in the
notification, exempt whether prospectively or retrospectively that class of
establishments from the operation of this Act for such period as may be
specified in the notification.
16A. Authorising certain employers to maintain provident fund accounts -
(1) The Central Government may, on an application made to it in this
behalf by the employer and the majority of employees in relation to an
establishment employing one hundred or more persons, authorise the employer by
an order in writing, to maintain a provident fund account in relation to the
establishment, subject to such terms and conditions as may be specified in the
Scheme : Provided that no authorisation shall be made under this sub-section if
the employer of such establishment had committed any default in the payment of
provident fund contribution or had committed any other offence under this Act
during the three years immediately preceding the date of such authorisation.
(2) Where an establishment is authorised to maintain a provident fund account
under sub-section (1), the employer in relation to such establishment shall
maintain such account, submit such return, deposit the contribution in such
manner, provide for such facilities for inspection, pay such administrative
charges, and abide by such other terms and conditions, as may be specified in
the Scheme.
(3) Any authorisation made under this section may be cancelled by the Central
Government by order in writing if the employer fails to comply with any of the
terms and conditions of the authorisation or where he commits any offence under
any provision of this Act: Provided that before cancelling the authorisation,
the Central Government shall give the employer a reasonable opportunity of being
heard.
17. Power to exempt -
(1) The appropriate Government may, by notification in the Official
Gazette, and subject to such conditions as may be specified in the notification
exempt, whether prospectively or retrospectively, from the operation of all or
any of the provisions of any Scheme -
(a) any establishment to which this Act applies, if, in the opinion of the
appropriate Government, the rules of its provident fund with respect to the
rates of contribution are not less favourable than those specified in section 6
and the employees are also in enjoyment of other provident fund benefits which
on the whole are not less favourable to the employees than the benefits provided
under this Act or any Scheme in relation to the employees in any other
establishment of a similar character; or
(b) any establishment if the employees of such establishment are in enjoyment of
benefits in the nature of provident fund, pension or gratuity and the
appropriate Government is of opinion that such benefits, separately or jointly,
are on the whole not less favourable to such employees than the benefits
provided under this Act or any Scheme in relation to employees in any other
establishment of a similar character. Provided that no such exemption shall be
made except after consultation with the Central Board which on such consultation
shall forward its views on exemption to the appropriate Government within such
time limit as may be specified in the Scheme.
(1A). Where an exemption has been granted to an establishment under clause (a)
of sub-section 1,
(a) the provisions of sections 6, 7A, 8 and 14B shall, so far as may be, apply
to the employer of the exempted establishment in addition to such other
conditions as may be specified in the notification granting such exemption, and
where such employer contravenes, or makes default in complying with any of the
said provision or conditions or any other provision of this Act, he shall be
punishable under section 14 as if the said establishment had not been exempted
under the said clause a;
(b) the employer shall establish a Board of Trustees for the administration of
the provident fund consisting of such number of members as may be specified in
the Scheme;
(c) the terms and conditions of service of members of the Board of Trustees
shall be such as may be specified in the Scheme:
(d) The Board of Trustees constituted under clause b shall –
(i) maintain detailed accounts to show the contributions credited, withdrawals
made and interest accrued in respect of each employee;
(ii) submit such returns to the Regional Provident Fund Commissioner or any
other officer as the Central Government may direct from time to time;
(iii) invest the provident fund monies in accordance with the directions issued
by the Central Government from time to time;
(iv) transfer, where necessary, the provident fund account of any employee; and
(v) perform such other duties as may be specified in the Scheme.
(IB) Where the Board of Trustees established under clause (b) of sub-section
(1A) contravenes, or makes default in complying with, any provisions of clause
(d) of that sub-section, the Trustees of the said Board shall be deemed to have
committed an offence under sub-section (2A) of section 14 and shall be
punishable with the penalties provided in that sub-section.
(IC) The appropriate Government may, by notification in the Official Gazette,
and subject to the condition on the pattern of investment of pension fund and
such other conditions as may be specified therein, exempt any establishment or
class of establishments from the operation of the Pension Scheme if the
employees of such establishment or class of establishments are either members of
any other pension scheme or propose to be members of such pension scheme, where
the pensionary benefits are at par or more favourable than the Pension Scheme
under this Act.
(2) Any Scheme may make provision for exemption of any person or class of
persons employed in any establishment to which the Scheme applies from the
operation of all or any of the provisions of the Scheme, if such person or class
of persons is entitled to benefits in the nature of provident fund, gratuity or
old age pension and such benefits, separately or jointly, are on the whole not
less favourable than the benefits provided under this Act or the Scheme:
Provided that no such exemption shall be granted in respect of a class of
persons unless the appropriate Government is of opinion that the majority of
persons constituting such class desire to continue to be entitled to such
benefits.
(2A) The Central Provident Fund Commissioner may, if requested so to do by the
employer, by notification in the Official Gazette, and subject to such
conditions as may be specified in the notification, exempt, whether
prospectively or retrospectively, any establishment from the operation of all or
any of the provisions of the Insurance Scheme, if he is satisfied that the
employees of such establishment are, without making any separate contribution or
payment of premium, in enjoyment of benefits in the nature of life insurance,
whether linked to their deposits in provident fund or not, and such benefits are
more favourable to such employees than the benefits admissible under the
Insurance Scheme.
(2B) Without prejudice to the provisions of sub-section 2A, the Insurance Scheme
may provide for the exemption of any person or class of persons employed in any
establishment and covered by that scheme from the operation of all or any of the
provisions thereof, if the benefits in the nature of life insurance admissible
to such person or class of persons are more favourable than the benefits
provided under the Insurance Scheme.
(3) Where in respect of any person or class of persons employed in an
establishment an exemption is granted under this section from the operation of
all or any of the provisions of any Scheme whether such exemption has been
granted to the establishment wherein such person or class of persons is
employed, or to the person or class of persons as such, the employer in relation
to such establishment -
(a) shall, in relation to the provident fund, pension and gratuity to which any
such person or class of persons is entitled, maintain such accounts, submit such
returns, make such investment, provide for such facilities for inspection and
pay such inspection charges, as the Central Government may direct.
(b) shall not, at any time after the exemption, without the leave of the Central
Government, reduce the total quantum of benefits in the nature of pension,
gratuity or provident fund to which any such person or class of persons was
entitled at the time of exemption; and
(c) shall, where any such person leaves his employment and obtains re-employment
in another establishment to which this Act applies, transfer within such time as
may be specified in this behalf by the Central Government, the amount of
accumulations to the credit of that person in the provident fund of the
establishment left by him to the credit of that person’s account in the
provident fund of the establishment in which he is re-employed or, as the case
may be, in the Fund established under the Scheme applicable to the
establishment.
(3A) Where, in respect of any person or class of persons employed in any
establishment, an exemption is granted under sub-section (2A) or sub-section
(2B) or from the operation of all or any of the provisions of the Insurance
Scheme whether such exemption is granted to the establishment wherein such
person or class of persons is employed or to the person or class of persons as
such, the employer in relation to such establishment –
(a) shall, in relation to the benefits in the nature of life insurance, to which
any such person or class of persons is entitled, or any insurance fund, maintain
such accounts, submit such returns, make such investments, provide for such
facilities for inspection and pay such inspection charges, as the Central
Government may direct;
(b) shall not, at any time after the exemption without the leave of the Central
Government, reduce the total quantum of benefits in the nature of life insurance
to which any such person or class of persons was entitled immediately before the
date of the exemption.
(c) ***
(4) Any exemption granted under this section may be cancelled by the authority
which granted it, by order in writing, if an employer fails to comply, -
(a) in the case of an exemption granted under sub-section 1, with any of the
conditions imposed under that sub-section or sub-section 1A or with any of the
provisions of sub-section 3;
(aa) in the case of an exemption granted under sub-section 1C, with any of the
conditions imposed under that sub-section; and
(b) in the case of an exemption granted under sub-section 2, with any of the
provisions of sub-section 3;
(c) in the case of an exemption granted under sub-section 2A, with any of the
conditions imposed under that sub-section or with any of the provisions of
sub-section 3A;
(d) in the case of an exemption granted under sub-section 2B, with any of the
provisions of sub-section 3A.
(5) Where any exemption granted under sub-section 1, sub-section 1C, sub-section
2, sub-section 2A or sub-section 2B is cancelled, the amount of accumulations to
the credit of every employee to whom such exemption applied, in the provident
fund, the Pension Fund or the Insurance Fund of the establishment in which he is
employed together with any amount forfeited from the employer’s share of
contribution to the credit of the employee who leaves the employment before the
completion of the full period of service shall be transferred within such time
and in such manner as may be specified in the Scheme or the Pension Scheme or
the Insurance Scheme to the credit of his account in the Fund or the Pension
Fund or the Insurance Fund, as the case may be.
(6) Subject to the provisions of sub-section 1C, the employer of an exempted
establishment or of an exempted employee of an establishment to which the
provisions of the Pension Scheme apply, shall, notwithstanding any exemption
granted under sub-section 1 or sub-section 2, pay to the Pension Fund such
portion of the employer’s contribution to its provident fund within such time
and in such manner as may be specified in the Pension Scheme.
17A. Transfer of accounts –
(1) Where an employee employed in an establishment to which this Act applies
leaves his employment and obtains re-employment in another establishment to
which this Act does not apply, the amount of accumulations to the credit of such
employee in the fund, or as the case may be, in the provident fund of the
establishment left by him shall be transferred, within such time as may be
specified by the Central Government in this behalf, to the credit of his account
in the provident fund of the establishment in which he is re-employed, if the
employee so desires and the rules in relation to that provident fund permit such
transfer.
(2) Where an employee employed in an establishment to which this Act does not
apply leaves his employment and obtains re-employment in another establishment
to which this Act applies, the amount of accumulations to the credit of such
employee in the provident fund of the establishment left by him may, if the
employee so desires and the rules in relation to such provident fund permit, be
transferred to the credit of his account in the Fund or as the case may be, in
the provident fund of the establishment in which he is re-employed.
17AA. Act to have effect notwithstanding anything contained in Act 31 of
1956 - The provisions of this Act shall have effect notwithstanding
anything inconsistent therewith contained in the Life Insurance Corporation Act,
1956 (31 of 1956).
17B. Liability in case of transfer of establishment - Where an
employer, in relation to an establishment, transfers that establishment in whole
or in part, by sale, gift, lease or licence or in any other manner whatsoever,
the employer and the person to whom the establishment is so transferred shall
jointly and severally be liable to pay the contribution and other sums due from
the employer under any provision of this Act or the Scheme or the Pension Scheme
or the Insurance Scheme as the case may be, in respect of the period upto the
date of such transfer: Provided that the liability of the transferee shall be
limited to the value of the assets obtained by him by such transfer.
18. Protection of Action taken in good faith - No suit,
prosecution or other legal proceeding shall lie against the Central Government,
a State Government, the Presiding Officer of a tribunal, any authority referred
to in section 7A, an Inspector or any other person for anything which is in good
faith done or intended to be done in pursuance of this Act, the Scheme, the
Pension Scheme or the Insurance Scheme.
18A. Presiding Officer and other officers to be public servants -
The Presiding Officer of a Tribunal, its officers and other employees, the
authorities referred to in section 7A and every Inspector shall be deemed to be
public servants within the meaning of section 21 of the Indian Penal Code (45 of
1860).
19. Delegation of powers - The appropriate Government may
direct that any power or authority or jurisdiction exercisable by it under this
Act, the Scheme, the Pension Scheme or the Insurance Scheme shall, in relation
to such matters and subject to such conditions, if any, as may be specified in
the direction, be exercisable also -
(a) where the appropriate Government is the Central Government, by such officer
or authority subordinate to the Central Government or by the State Government or
by such officer or authority subordinate to the State Government, as may be
specified in the notification; and
(b) where the appropriate Government is a State Government, by such officer or
authority subordinate to the State Government as may be specified in the
notification.
20. Power of Central Government to give directions - The
Central Government may, from time to time, give such directions to the Central
Board as it may think fit for the efficient administration of this Act and when
any such direction is given, the Central Board shall comply with such direction.
21. Power to make rules –
(1) The Central Government may, by notification in the Official Gazette, make
rules to carry out the provisions of this Act.
(2) Without prejudice to the generality of the foregoing power, such rules may
provide for all or any of the following matters, namely:-
(a) the salary and allowances and other terms and conditions of service of the
Presiding Officer and the employees of a Tribunal;
(b) the form and the manner in which, and the time within which, an appeal shall
be filed before a Tribunal and the fees payable for filing such appeal;
(c) the manner of certifying the copy of the certificate, to be forwarded to the
Recovery Officer under sub-section (2) or section 8C; and
(d) any other matter which has to be, or may be, prescribed by rules under this
Act.
(3) Every rule made under this Act shall be laid, as soon as may be after it is
made, before each House of Parliament, while it is in session, for a total
period of thirty days which may be comprised in one session or in two or more
successive sessions, and if, before the expiry of the session immediately
following the session or the successive sessions aforesaid, both Houses agree in
making any modification in the rule or both Houses agree that the rule should
not be made, the rule shall thereafter have effect only in such modified form or
be of no effect, as the case may be; so, however, that any such modification or
annulment shall be without prejudice to the validity of anything previously done
under that rule.
22. Power to remove difficulties –
(1) If any difficulty arises in giving effect to the provisions of this
Act, as amended by the Employees’ Provident Funds and Miscellaneous Provisions
(Amendment) Act, 1988, the Central Government may, by order published in the
Official Gazette, make such provisions, not inconsistent with the provisions of
this Act, as appear to it to be necessary or expedient for the removal of the
difficulty: Provided that no such order shall be made after the expiry of a
period of three years from the date on which the said Amendment Act receives the
assent of the President.
(2) Every order made under this section shall, as soon as may be after it is
made, be laid before each House of Parliament.
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