IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction

Appellate Side

Present:

The Hon‟ble Justice Shampa Dutt (Paul)

WPA 6229 of 2023

Asiatic Society‟s Employees‟ Union & Anr.

Vs.

The Union of India & Ors.

For the Petitioners : Mr. Kallol Basu,

Mr. Suman Banerjee.

For the Union of India : Mr. Souvik Nandy, ld. Sr. adv.

Mr. Arijit Majumdar,

Ms. Shreyashi Sarkar.

For the Respondent no. 5 : Mr. Rajib Ray.

For the Respondent no. 2 : Ms. Sayanti Roy Chowdhury,

Ms. Biswadeepa Mondal.

Judgment reserved on : 29.06.2026/13.07.2026

Judgment delivered on : 20.07.2026

SHAMPA DUTT (PAUL), J. :

1. The present writ application has been filed, inter alia,

challenging the decision taken by the respondent nos. 1 to 4 to

stop deduction of the provident fund contributions from the

members of the petitioner no.1 in excess of Rs. 15,000/- in

terms of and in furtherance of the communication dated 25th

Page 2

January 2023 issued by the Director, Ministry of Culture,

Government of India.

2. It is the contention of the petitioners that the respondent no. 2

is an autonomous institution and is covered by the provisions

of Employees Provident Funds and Miscellaneous Provisions

Act, 1952 (hereinafter referred to as the "said Act"). According

to the petitioners, the service rules for the employees of the

respondent no. 2 were prepared sometimes in the year 1991

and the same became effective on and from 1st December 1998.

Clause 28 of the said rules, inter alia, stipulates that the

employees of the respondent no. 2 shall be entitled to pension,

gratuity, family pension and General Provident Fund benefits

as admissible to the employees of the Government of India

from time to time.

3. The Office memoranda dated 2nd December 1997, 3rd

September 2008 and 13th January 2017 issued by the

Government of India, Ministry of Finance, Department of

Expenditure, shows that by such orders the revision of pay

and allowances have been made effective, in sofar as the

respondent no. 2 is concerned. By the aforesaid orders, the

Government has also provided that deduction on account of

provident fund or contributory provident fund will have to be

made on the basis of the revised pay structure with effect from

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the date the employees opt to elect the revised pay structures.

Reliance is also placed on office memorandum dated 10th June,

1999 at page 13 of the supplementary affidavit.

4. Relevant portion of the Government Order dated 13th January

2017 which, inter alia, provides for deduction of provident fund

on the revised pay structure, is extracted herein below:

"(iii) Deductions Provident Fund, Contributory Provident

Fund or National Pension System, as may be

applicable, will have to be made on the basis of the

revised pay with effect from the date an employee

opts to elect the revised pay structure."

5. The contention of the learned counsel for the petitioner is that

in terms of an office order dated 18th May 2001 regulation no.

7, the respondent no. 2 had, inter alia, decided as follows:-

“In this accordance with stipulation the

employees are entitled to contribute at

higher rate than that is prevailing at

present which is 12% of salary as

stipulated in the Act. The Employer's

contribution should also be equal to the

contribution of the employees subject to

maximum of 12% of Pay and admissible

D.A.

It is, therefore, decided to follow the

Regulation of the Society in terms of the

aforesaid Provident Fund Act. This is being

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made effective from the salary month of May,

2001 onwards.

In case any employee of the Society desires to

contribute to C.P.F. at the old rate prevailing

prior to May, 2001 the rate of employers'

contribution will remain same as before.. If no

intimation is received from any employee in

writing before 25th May, 2001 the contribution

to the E.P.F. shall be guided in terms of

provisions contained under Regulation VII of the

Asiatic Society.”

6. It is further stated that the members of the petitioners had not

only opted for deduction of contributions at higher rate but also

as per revised pay structure.

7. By referring to a communication dated 25th January 2023

issued by the Director, Government of India, Ministry of

Culture, addressed to the General Secretary, Asiatic Society, it

is submitted that the Governmen t of India, contrary to the

statutory provisions, had decided to limit the deduction of the

provident fund contributions to Rs.15,000/- per month, inter

alia, by observing as follows:-

“It has been decided that for the existing EPF

subscribers, Employer's Contribution to

the EPF is to be made at the rate of 12%

on EPF Wages (comprising Basic Pay &

D.A.) applying EPF Wages limit of

Rs.15000/- per month and that the

contribution should not exceed this rate

and limit as prescribed in the EPF rules.

The Chairma n advised for strict

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adherence to the contribution limit as

per rules."

8. Vide letter dated 25th July, 2023, the respondent no. 2 has

been directed to take the following action:-

"Accordingly, ASK is requested to take the following action

immediately:-

(i) Provide the monthly details of Salary of employees

in an excel sheet (one sheet for each month) with at

least columns namely Employee name, Basic Pay,

DA, HRA, Transport Allowance, Total Salary, EPF

contribution by employer, EPF contribution by

Employee, irregular bonus paid to employee during

2015-2018;

(ii) Stop contribution to Employer's share in

violation of EPF provision as pointed out by

Audit immediately and send a revised ATN

within 15 days.

(iii) Fix responsibility of all officers in the chain for

violation of EPF provisions and provide the name of

officers responsible for non compliance of

Government instructions.

(iv) Convene the meeting of Planning Board

immediately to deliberate this matter.

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(v) Please ensure that all replies to any litigation in

any court/tribunal on this subject matter etc be got

vetted by Ministry”

9. The petitioners contend that the aforesaid direction is contrary

to the statutory provisions and infringes upon the petitioners'

rights. It is submitted that in terms of the aforesaid direction,

the respondent no. 2 has already issued an office order dated

6th February 2023 and had thereby, resolved as follows:-

“In pursuance to the decision of the Council of the

Society vide resolution to the agenda item no. 8 of its

meeting held on 31.01.2023, for the existing EPF

subscribers of the Society, the Employer's

contribution to the EPF will be made at the rate

of 12% (Twelve percent) on EPF Wages (comprising

Basic Pay & DA) applying the EPF Wages limit of

Rs. 15,000/- (Rupees Fifteen Thousand) per month

in terms of the existing provisions prescribed in

Para 29 (1) and 26A(2) respectively of the

Employees' Provident Fund and Miscellaneous

Provisions (EPF & MP) Scheme, 1952 (Scheme)

under the EPF & MP Act, 1952."

10. According to Mr. Basu, the aforesaid decision taken by the

respondent no. 2 is unilateral and cannot override the joint

request made by the respondent no. 2 and the petitioners,

before the Provident Fund authorities in terms of paragraph

26.6 of the Employees Provident Fund and Miscellaneous

Provisions Scheme, 1952 (hereinafter referred to as the

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"Said Scheme"). The aforesaid office order seeks to infringe

upon the petitioners' rights as envisaged under the provisions

of paragraph 26.6 of the said Scheme. He further submits

that as and by way of abundant caution, the petitioners have

sought for a declaration that proviso to sub-para 2 of paragraph

26A of the said Scheme to be ultra vires. It is, however, the

contention of Mr. Başu that the petitioners have an

independent right to enforce its claim under paragraph 26.6 of

the said Scheme.

11. Mr. Ray, learned advocate appearing for the Provident Fund

authorities on the other hand submits that the decision taken

by the respondent no. 2 to call upon its employees to make

contribution at higher rate was. in consonance with the

provisions of paragraph 26.6 of the said Scheme. Both the

respondent no. 2 as also its employees having jointly

applied, in terms of paragraph 26.6 of the said Scheme and

such request having found in order, was accepted by the

provident fund authorities and consequent thereupon, both

the employer and the employee had been contributing at

higher rate in terms of the said Scheme.

12. The communication dated 25

th

January, 2023 issued by the

Director, Ministry of Culture, Government of India calling upon

the respondent no. 2, to revise the contributions payable both

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by the employee and the employer is contrary to the said

Scheme. According to Mr. Ray, paragraph 31 of the said

Scheme read with Section 12 of the said Act, creates an

impediment on respondent no. 2 in reducing the

contributions payable by the employees of the respondent

no.2.

13. The decision taken by the respondent no. 2 vide order dated

6th February 2023, if implemented would create an

incongruous situation.

14. The parties in the present case have filed their respective

written notes and the judgments relied upon.

15. From the materials on record it appears that the petitioners are

employees of the respondent no. 2. It is also an admitted

position that in terms of the option given to the members of the

petitioners and the members having opted, jointly with the

respondent no. 2, for contributing at higher rate and the

respondent no. 2 since the year 2001 have deducted

contributions from the members of petitioners, who a re its

employees at higher rate.

16. The petitioners in their written notes have reiterated their entire

case as made out in their writ application. It is argued on

behalf of the petitioner by Mr. Basu, that the members and

office bearers of the petitioners No. 1 met the respondent No. 3

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and 4 and prayed for taking remedial measures to continue the

Employees' Contribution towards Employees Provident Fund

i.e. 12% of Basic Pay and Dearness Allowance with the

matching grant of Employer's Contribution in terms of the

Office Order No. 37 dated 18.05.2001 issued by the respondent

No. 4. However the respondent No. 4 issued an Office Order

No. 38 dated 06.02.2023 whereby the employer s'

contribution was restricted to the ceiling limit and liberty

was given to the employees to contribute over the ceiling

limit. Accordingly the respondent No. 4 made a prayer to the

respondent No. 1 in this regard. However on 08.02.2023, such

prayer was rejected on a flimsy ground.

17. The petitioners submit that the employees of the Respondent

No. 2, despite serving in an institution of national importance

under the aegis of Respondent No. 1, are not given any

protection or security after their retirement by the respondent

authorities concerned which not only is illegal but also destroys

the very basis of the governance.

18. The respondent no. 1/the Union of India by filing their

written notes have argued that the genesis of this instant

issue arose from an office order No. 37 dated 18.05.2001 issued

by the respondent No. 2, 3 and 4 herein regarding the

employer's contribution payable to the EPF accounts as

Page 10

mentioned in the said office order is inconsistent with the

relevant provisions i.e. paragraph 26A (2) of the Employees'

Provident Fund and Miscellaneous Payments Scheme, 1952,

regarding statutory wage ceiling limit.

19. Paragraph 26A (2) stipulates that the employer should not be

under an obligation to pay any contribution over and above the

prescribed limit fixed under paragraph 29 (2) of the said

Scheme.

20. In the present case, respondent No. 2, 3 and 4, being a grantee,

is fully funded by the respondent No. 1 through grant -in-

aid. It is under obligation to comply with all the acts,

regulations, guidelines, policies, directions and instructions

issued by the Government of India with regards to financial

prudence. The Bye-Laws of the respondent No. 2, 3 and 4

provide that the provident fund of its em ployees' will be

guided by the Employees' Provident Fund and

Miscellaneous Payments Act, 1952.

21. The Comptroller and Auditor General vide audit paragraph No.

6.3 of its Report No. 4 of 2018 regarding "Excess contribution to

Employees' Provident Fund Asiatic Society, Kolkata" has

observed that the respondent No. 2 contributed its share of the

provident fund to the employees at the rate of 12% of the total

pay instead of restricting it to the maximum wage ceiling of

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Rs. 15,000/- which resulted in excess contribution of

approximately 7 crores. This undue contribution has been

made by the respondent No. 2 i.e. Asiatic Society, Kolkata

without any approval from the respondent no. 1 herein,

from the Grant in-Aid given by the Ministry.

22. The respondent No. 1 has been taking up this matter with

respondent No. 2, 3 and 4 since, May, 2017 for the settlement

of Audit observation and stoppage of the employer's

contribution over and above the statutory limit and recovery of

excess payment already made vide Ministry's letter dated

04.05.2017, 13.06.2017, 04.07.2017, 23.12.2017, 19.06.2018,

20.08.2018, 05.10.2018, 31.01.2019, 21.02.2019, 17.05.2019,

30.09.2019, 04.10.2019, 10.12.2019, 18.02.2020, 09.08.2021,

01.01.2022, 25.01.2023, 08.02.2023 and 20.02.2023 etc.

23. Despite several communications from the respondent No. 1, as

has been stated in the preceding paragraph, in respect of the

recovery of excess employer's contribution over and above the

statutory limit, respondent No. 2, 3 and 4 could not recover and

till date approximately 7 crores remains excess contributed

from government exchequer.

24. It is thus submitted by the respondent no. 1 that the

petitioners do not have any right to claim parity or equality,

when the authority has made an error apparent, by

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misinterpreting the statutory provision. And on the other

hand, writ petitioners to their own benefit have all along

misinterpreted the statutory provisions of Employees'

Provident Funds and Miscellaneous Provisions Act, 1952

and Employees' Provident Funds Scheme, 1952.

25. The respondent no. 1 has thus prayed for dismissal of the writ

application. The respondent no. 2 herein being the Secretary of

the petitioner no. 1 herein has supported the case of the

respondent no. 1/Union of India. The specific case of the

respondent no. 2 is that as an administrative error, the

omission of such limit in the said disputed order, the

Employer's contribution was deposited @12% on the entire of

employee's basic wages, dearness allowance and retaining

allowance (if any).

26. Respondent no. 2 further submits that this action was surely

an erroneous implementation of the order as the order itself

specifically mentions that:-

“The regulation VII of the Asiatic Society regarding

Provident Fund stipulates that the Provident Fund of the

employees of the Asiatic Society shall be guided by the

Employees Provident Fund and Miscellaneous Provision

Act, 1952....It is therefore decided to follow the provision

of the Act..." That paragraph 26A(2) of the Employees'

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Provident Fund and Miscellaneous Payments Scheme,

1952, is regarding statutory wage ceiling limit.

Paragraph 26A(2) stipulates that the employer is not

under an obligation to pay any contribution over and

above the prescribed limit fixed under paragraph 29(2)

of the said Scheme.”

27. It is further stated that though in paragraph 29 (2) of the said

Scheme it is mentioned that 'employer shall not be under an

obligation to pay any contribution over and above his

contribution payable under the Act', but the decision of

exceeding the limit of Rs.15000 as reference salary ought to

have been taken by the Asiatic Society, Kolkata with prior

approval of the Ministry of Culture.

28. It is also stated that any decision having financial implication

ought to have been passed by the Standing Finance Committee

(SFC) of the Asiatic Society, Kolkata and for this an approval

of Ministry of culture is also needed.

No such approval was there while Order 37 was passed. Neither

any mention of exceeding such limit was mentioned there in the

order.

Thus, it can be said that there was an error at the

implementation of the Act. "

Page 14

29. Regarding the excess payment, it is submitted by the

respondent no. 2, that Excess payment which has become

payable to beneficiaries (i.e.) the persons who have already

retired and the excess contribution which has been deposited in

the EPF accounts of the employees, not yet become payable, as

the concerned employees have not yet retired, recovery, if any,

in respect of the first category may actually be termed as

“recovery”. But for the second category, the term 'recover' would

not be applicable to them as no excess payment has been done

yet and the money is still with EPFO.

30. The respondent no. 5/the EPF authority has argued as

follows:-

“That a breach of any of these requirements is made a penal

offence. As such, any effort by the employer to deny

employees, the legitimate dues, which they have rightfully

earned in terms of the provisions of the act, need to be looked

upon with suspicion.”

31. It is stated that in case of failure to deposit the legitimate dues

of the workers, the EPFO has been empowered by the Act to

initiate inquiry under section 7A and 14B of the said Act by

giving the reasonable opportunities of being heard to the

employer, followed by quantifying interest under Section 7Q of

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the Act to make good the interest allowed to the member's

credit as per the provision of Para 60 of the EPF Scheme, 1952.

32. It is further stated t hat it is often seen that

employers/establishments resort to filing the petition in the

Hon'ble Court once the recovery process has been started which

in any case start after default of the legitimate dues have been

committed by such employer. The employer files such cases

with a view to defect the object of the social security legislation

which provides for lump sum payments to the employees on

their retirement so that they can spend their retired life with

some element of comfort.

33. It is therefore prayed that the Hon'ble Court may kindly

consider the purpose behind the legislation (EPF & MP Act,

1952) as enumerated above while considering the case of the

employer.

34. That Asiatic Society hereinafter referred as the establishment

was covered under Employees Provident Fund Miscellaneous

Provisions Act, 1952 with effect from 01.12.1974 vide P.F. Code

No. 15600.

35. The said respondent thus indirectly supports the case of the

petitioners herein.

36. It is further stated by the provident fund authorities that this

answering respondent have received several letters from the

Page 16

said establishment regarding C&AG Audit Report No. 4 of 2018

wherein at Para no. 6.3 titled as "Excess contribution to

Employees Provident Fund in The Asiatic Society, Kolkata" and

seeks an opinion whether the excess contribution to EPF

made by the employer as reported by the audit is

recoverable or not.

37. The petitioner in the present case has relied upon the following

judgments:-

(i) S. Satyapal Reddy & Ors. versus Govt. of A.P. &

Ors., (1994) 4 SCC 391, Para 7(g).

“7. …………… Whether there is an apparent

repugnance or conflict between Central and

State laws occupying the same field and cannot

operate harmoniously in each case the court has

to examine whether the provisions occupy the

same field with respect to one of the matters

enumerated in the Concurrent List and whether

there exists repugnancy between the two laws.

Article 254 lays emphasis on the words “with

respect to that matter”. Repugnancy arises when

both the laws are fully inconsistent or are

absolutely irreconcilable and when it is

impossible to obey one without disobeying the

other. The repugnancy would arise when

conflicting results are produced when both the

statutes covering the same field are applied to a

given set of facts. But the court has to make

every attempt to reconcile the provisions of the

apparently conflicting laws and court would

endeavour to give harmonious construction. The

purpose to determine inconsistency is to

ascertain the intention of Parliament which

would be gathered from a consideration of the

entire field occupied by the law. The proper test

would be whether effect can be given to the

Page 17

provisions of both the laws or whether both the

laws can stand together………..”

(ii) Som Lal versus Vijay Laxmi & Ors. , (2008) 11 SCC

413, para 15.

“15. Mr Patwalia, learned Senior Counsel for the

respondents invited our attention to Chapter VII

at p. 637 of Principles of Statutory

Interpretation (11th Edn., 2008) by Justice G.P.

Singh, which reads as under:

“The use of any particular form of words is not

necessary to bring about an express repeal. All

that is necessary is that the words used show

an intention to abrogate the Act or provision in

question. The usual form is to use the words „is

or are hereby repealed‟ and to mention the Acts

sought to be repealed in the repealing section or

to catalogue them in a schedule. The use of

words „shall cease to have effect‟, is also not

uncommon. When the object is to repeal only a

portion of an Act words „shall be omitted‟ are

normally used. The legislative practice in India

shows that „omission‟ of a provision is treated as

amendment which signifies deletion of that

provision and is not different from repeal. It has

been held that „there is no real distinction

between repeal and an amendment‟. It has also

been held that „where a provision of an Act is

omitted by an Act and the said Act

simultaneously re-enacts a new provision which

substantially covers the field occupied by

the repealed provision with certain modification,

in that event such re-enactment is regarded

having force continuously and the modification or

changes are treated as amendment coming into

force with effect from the date of enforcement of

re-enacted provision‟.”

(emphasis in original)

Similarly, our attention was invited to a

paragraph at p. 639. There it has been observed

as follows:

“The legislature sometimes does not enumerate

the Acts sought to be repealed, and only says

that „all provisions inconsistent with this Act‟ are

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hereby repealed. With respect to such a

repealing provision, it has been said that it

merely substitutes for the uncertainty of the

general law an express provision of equal

uncertainty; and in determining whether a

particular earlier provision is repealed by such a

repealing provision on the ground of

inconsistency with it, the same principles which

are applicable in determining a question of

implied repeal have to be applied.”

At p. 640, under the heading Implied repeal it

has been observed as follows:

“There is a presumption against a repeal by

implication; and the reason of this rule is based

on the theory that the legislature while enacting

a law has a complete knowledge of the existing

laws on the same subject-matter, and therefore,

when it does not provide a repealing provision, it

gives out an intention not to repeal the existing

legislation. When the new Act contains a

repealing section mentioning the Acts which it

expressly repeals, the presumption against

implied repeal of other laws is further

strengthened on the principle expressio unius est

exclusio alterius. Further, the presumption will

be comparatively strong in case of virtually

contemporaneous Acts. The continuance of

existing legislation, in the absence of an express

provision of repeal, being presumed, the burden

to show that there has been a repeal by

implication lies on the party asserting the same.

The presumption is, however, rebutted and a

repeal is inferred by necessary implication when

the provisions of the later Act are so inconsistent

with or repugnant to the provisions of the earlier

Act „that the two cannot stand together‟.”

(iii) Regional Provident Fund Commissioner Versus

Hooghly Mills Company Limited & Ors. , (2012) 2 SCC

489, para 24 to 35.

Page 19

“24. If we look at the modern legislative trend

we will discern that there is a large volume of

legislation enacted with the purpose of

introducing social reform by improving the

conditions of certain class of persons who might

not have been fairly treated in the past. These

statutes are normally called remedial statutes or

social welfare legislation, whereas pe nal

statutes are sometime enacted providing for

penalties for disobedience of laws making those

who disobey, liable to imprisonment, fine,

forfeiture or other penalty.

25. The normal canon of interpretation is that a

remedial statute receives liberal construction

whereas a penal statute calls for strict

construction. In the cases of remedial statutes, if

there is any doubt, the same is resolved in

favour of the class of persons for whose benefit

the statute is enacted, but in cases of penal

statutes if there is any doubt the same is

normally resolved in favour of the alleged

offender.

26. It is no doubt true that the said Act

effectuates the economic message of the

Constitution as articulated in the directive

principles of State policy. Under the directive

principles the State has the obligation for

securing just and humane conditions of work

which includes a living wage and decent

standard of life. The said Act obviously seeks to

promote those goals. Therefore, the interpretation

of the said Act must not only be liberal but it

must be informed by the values of the directive

principles. Therefore, an awareness of the social

perspective of the Act must guide the

interpretative process of the legislative device.

27. Keeping those broad principles in mind, if we

look at the Objects and Reasons in respect of the

relevant section it will be easier for this Court to

appreciate the statutory intent. The opening

words of Section 14-B are, “where an employer

makes default in the payment of any

contribution to the fund”. This was incorporated

by way of an amendment, vide amending Act 37

of 1953. In this connection, the excerpts from the

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Statement of Objects and Reasons of Act 37 of

1953 are very pertinent.

28. The relevant excerpts are:

“There are also certain administrative difficulties

to be set right. There is no provision for

inspection of exempted factories; nor is there any

provision for the recovery of dues from such

factories. An employer can delay payment of

provident fund dues without any additional

financial liability. No punishment has been laid

down for contravention of some of the provisions

of the Act.

This Bill seeks primarily to remedy these defects.

SOR, Gazette of India, 1953, Extra, Part II,

Section 2, p. 910.”

29. Similarly, in respect of Section 17(1-A) clause

(a) which makes Section 14-B applicable to an

exempted establishment also came by way of an

amendment, namely, by Act 33 of 1988. Here

also if we look at the relevant portion of the

Statement of Objects and Reasons of Act 33 of

1988 we will find that they are based on certain

recommendations of the high-level committee to

review the working of the Act.

30. Various recommendations were incorporated

in the Objects and Reasons and one of the

objects of such amendment is as follows:

“(viii) the existing legal and penal provisions, as

applicable to unexempted establishments, are

being made applicable to exempted

establishments, so as to check the defaults on

their part;”

31. It is well known that an interpretation of the

statute which harmonises with its avowed object

is always to be accepted than the one which

dilutes it.

32. The problem of statutory interpretation has

been a matter of considerable judicial debate in

almost all common law jurisdictions. Justice

Felix Frankfurter dealt with this problem rather

comprehensively in his Sixth Annual Benjamin N.

Cardozo Lecture [see Some Reflections on the

Reading of Statutes, (1947) 47 Columbia Law

Review 527]. The learned Judge opined:

Page 21

“Anything that is written may present a problem

of meaning, and that is the essence of the

business of Judges in construing legislation. The

problem derives from the very nature of words.

They are symbols of meaning.”

About what the words connote, there is a very

illuminating discussion by Friedrich Bodmer, a

Swiss Philologist in his treatise The Loom of

Language. Bodmer, who was a Professor in the

Massachusetts Institute of Technology, said:

“Words are not passive agents meaning the

same thing and carrying the same value at all

times and in all contexts. They do not come in

standard shapes and sizes like coins from the

mint, nor do they go forth with a degree to all the

world that they shall mean only so much, no

more and no less. Through its own particular

personality each word has a penumbra of

meaning which no draftsman can e ntirely cut

away. It refuses to be used as a mathematical

symbol.”

33. The aforesaid formulation by Professor

Bodmer was cited with approval by the

Constitution Bench of this Court in Supreme

Court Advocates-on-Record Assn. v. Union of

India [(1993) 4 SCC 441] , SCC at p. 553, para

59. Holmes, J. in Towne v. Eisner [62 L Ed 372 :

245 US 418 (1917)] thought in the same way by

saying: (L Ed p. 376)

“… A word is not a crystal, transparent and

unchanged; it is the skin of a living thought and

may vary greatly in colour and content according

to the circumstances and the time in which it is

used.”

34. Therefore, about the problem of

interpretation we may again go back to what

Justice Frankfurter said in the aforesaid article.

This is of considerable importance. The learned

Judge said:

Page 22

“… The process of construction, therefore, is

not an exercise in logic or dialectic: the aids of

formal reasoning are not irrelevant; they may

simply be inadequate. The purpose of

construction being the ascertainment of meaning,

every consideration brought to bear for the

solution of that problem must be devoted to that

end alone….”

35. Therefore, while construing the statute

where there may be some doubt the Court has to

consider the statute as a whole—its design, its

purpose and the remedy which it seeks to

achieve. Sinha, C.J. of this Court, in State of

W.B. v. Union of India [AIR 1963 SC 1241] , AIR

at p. 1245, emphasised the importance of

construing the statute as a whole. In the words

of the Chief Justice: (AIR para 68)

“68. … the court must ascertain the intention

of the legislature by directing its attention not

merely to the clauses to be construed but to the

entire statute; it must compare the clause with

the other parts of the law, and the setting in

which the clause to be interpreted occurs.”

38. The Respondents/Provident Fund Authorities in the present

case have relied upon the judgment in:-

a) Syed Abdul Qadir & Ors. Versus State of Bihar &

Ors., (2009) 3 SCC 475, Para 57 & 58.

“57. This Court, in a catena of decisions, has

granted relief against recovery of excess

payment of emoluments/allowances if (a) the

excess amount was not paid on account of any

misrepresentation or fraud on the part of the

employee; and (b) if such excess payment was

made by the employer by applying a wrong

principle for calculating the pay/allowance or on

the basis of a particular interpretation of

rule/order, which is subsequently found to be

erroneous.

Page 23

58. The relief against recovery is granted by

courts not because of any right in the employees,

but in equity, exercising judicial discretion to

relieve the employees from the hardship that will

be caused if recovery is ordered. But, if in a

given case, it is proved that the employee had

knowledge that the payment received was in

excess of what was due or wrongly paid, or in

cases where the error is detected or corrected

within a short time of wrong payment, the matter

being in the realm of judicial discretion, courts

may, on the facts and circumstances of any

particular case, order for recovery of the amount

paid in excess. See Sahib Ram v. State of

Haryana, Shyam Babu Verma v. Union of India,

Union of India v. M. Bhaskar³, V. Gangaram v.

Director, Col. B.J. Akkara (Retd.) v. Govt. of

India, Purshottam Lal Das v. State of Bihar,

Punjab National Bank v. Manjeet Singh and

Bihar SEB v. Bijay Bhadur.”

b) State of Haryana & Ors. Vs Ram Kumar Mann

reported in (1997) 3 SCC 321, Para 3.

“the respondent has no right, whatsoever and

cannot be given the relief wrongly given to them.

In a converse case, in the first instance, one may

be wrong but the wrong order cannot be the

foundation for claiming equality for

enforcement of the same order. A wrong

decision by the Government does not give a

right to enforce the wrong order and claim

parity or equality. Two wrong can never

make a right."

39. The provisions of the employees provident and MP Act referred

to by the parties and being relevant in the present case are as

follows:-

Page 24

i. Section 26.6 of the Employees Provident Funds

Scheme:-

“Section 26.6. Notwithstanding anything

contained in this paragraph, [an officer not below

the rank of an Assistant Provident Fund

Commissioner] may, on the joint request in

writing of any employee of a factory or other

establishment to which this Scheme applies

and his employer, enroll such employee as a

member or allow him to contribute more than

[fifteen thousand rupees ] of his pay per

month if he is already a member of the fund and

thereupon such employee shall be entitled to the

benefits and shall be subject to the conditions of

the fund, provided that the employer gives an

undertaking in writing that he shall pay the

administrative charges payable and shall comply

with all statutory provisions in respect of such

employee.”

ii. Section 26A(2) of the Employees Provident Funds

Scheme:-

“Section 26A(2) Every member employed as an

employee other than an excluded employee, in a

factory or other establishment to which this

Scheme applies shall contribute to the fund, and

the contribution shall also be payable to the fund

in respect of him by the employer. Such

contribution shall be in accordance with the rate

specified in paragraph 29:

Provided that subject to the provisions

contained in sub-paragraph (6) of paragraph

26 and [in paragraph 27], or sub -paragraph

(1) of paragraph 27-A, where the monthly pay

of such a member exceeds [ fifteen thousand

rupees], the contribution payable by him, and in

respect of him by the employer, shall be limited

to the amounts payable on a monthly pay of

[fifteen thousand rupees] including [dearness

Page 25

allowance, retaining allowance (if any) and]

cash value of food concession.”

iii. Section 29(1) of the Employees Provident Funds

Scheme:-

“Section 29(1) The contributions payable by the

employer under the Scheme shall be at the rate

of [ten per cent] of the [basic wages, dearness

allowance (including the cash value of any food

concessions) and retaining allowance (if any)

payable to each employee to whom the Scheme

applies:

[Provided that the above rate of contribution shall

be [twelve per cent.] in respect of any

establishment or class of establishments which

the Central Government may specify in the

Official Gazette from time to time under the first

proviso to sub-section (1) of section 6 of the Act].”

40. Para 31 of the employees provident fund scheme: -

“31. Employer's share not to be deducted from

the members.- Notwithstanding any contract to the

contrary the employer shall not be entitled to deduct

the employer's contribution from the wages of a

member or otherwise to recover it from him.

41. Section 12 of the EPF & MP Act lays down:-

“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]

Page 26

to which the employee is entitled under the terms of

his employment, express or implied.]”

42. Parties have filed the respective affidavits in opposition

and reply thereto.

43. The petitioners contention in their supplementary affidavit is:-

“That it is submitted that in the Office Memorandums

issued by the Department of Expenditure, Ministry of

Finance, Government of India implementing the

recommendations of the Fifth Central Pay

Commission, Sixth Central Pay Commission and

Seventh Central Pay Commission to the autonomous

bodies, it has been categorically mentioned that the

deductions on account of provident fund or

contributory provident fund, as the case may be, will

have to be made on the basis of the revised pay with

effect from the date the employee opts to elect the

revised pay structure. As such it is the duty of the

respondent authority concerned to make Employees'

Contribution towards Employees Provident Fund at

the rate of 12% of Basic Pay and Dearness Allowance

with the matching grant of Employer's Contribution

without applying any ceiling limit as per the

Employees' Provident Funds Scheme, 1952.

That it is submitted that the ceiling limit as per the

Employees' Provident Funds Scheme, 1952 does not

preclude an employer to make a contribution to the

fund over and above the ceiling limit and the same

only restricts the mandatory duty to that extent only.”

44. Office memorandum dated 30

th

September, 2008 and

Government order dated 13.01.2017 states in respect of

“deduction” on account of provident fund on revised pay. The

word „deduction‟ indicates that it is the employee whose

deduction of P.F. would be on revised pay.

Page 27

45. In case of the employer, the payment towards PF in respect of

its employer is termed as “contribution”.

46. In reply the petitioners have reiterated their case as made out

in their writ application.

47. The respondent no. 5 the PF authority further states that:-

“The contribution which has been deposited over

the wage ceiling cannot be now reduced and limit

to the wage ceiling again. The employer and

employee remain bound to continue to contribute

such contribution on such salary/wages on which

PF and allied contribution has been remitted till the

last remittance made.”

48. It is further stated that the deposit on ceiling limit was made as

per Para 26(6) of the EPF Scheme on mutual consent.

49. Therefore when the statute itself allows such deposit there

arises no question of any excess payment in the statutory fund.

This respondent (no. 5) supports the petitioners.

50. The respondents no. 2, 3 and 4 the Asiatic Society agree that:-

“The Asiatic Society was paying Employer's

contributions of provident fund at a higher amount

from 2001 onwards. In the year 2023, the long

standing mistake of Employer's contributions was

detected and the first respondent directed the

Asiatic Society to rectify the mistake and comply

with the rules regulating the payment of Employer's

contributions of provident fund to its employees. The

direction of the first respondent was sought to be

implemented by the Asiatic Society and being

aggrieved, the employees of the Asiatic Society filed

the instant Writ Petition. Therefore, the payment of

employees' contributions was put on hold from

Page 28

February 2023 to September 2023. The payment of

employees' contributions was restored from the

month of October 2023 in compliance of the interim

order passed in the instant Writ Petition. Therefore,

the Asiatic Society could not be held liable for

payment of any damages or interest.”

51. The respondent no. 2 herein is an autonomous institution

which functions under the Ministry of Culture, Govt. of India. It

receives grant in aid from the Govt. of India. The service rules

of the society were duly approved by the government of

India on 25.05.1999 except clause being SR 28 which is as

follows:-

“RETIREMENT AND OTHER BENEFITS , PENSION

AND PROVIDENT FUND

SR 28 i) The employees of the Society shall be entitled

to pension, gratuity, family pension and general

provident fund benefits as admissible to the employees

of the Central Government from time to time.

ii) The employees who have not opted for pay scales of

the IVth Central Pay Commission will continue to enjoy

the benefits of contributory provident fund and the

gratuity Rules of the Society as existed prior to the

coming into force of these rules.”

52. The service rules of Respondent no. 2 provides:-

i. 3(1)(b) „Director‟ means the Director in charge of

Administration and Finance of the Society.

ii. 3(e) „Controlling Authority‟ means:

i) The Director in relation to posts in Groups „C‟ and „D‟

and

ii) The Council in relation to all other posts.

Page 29

iii. 3(k) „Sanctioning Authority‟ means the Council of the

society.

53. SR 34, 35, 36 being relevant are as follows:-

SR 34 Residuary Powers

Any matter relating to the conditions of service of an employee,

for which no provision is made in these rules, shall be

determined by the Council in conformity with Government

Rules in force.

SR 35 Power To Relax

Notwithstanding anything contained in these rules, the Council

may relax any of the provisions of these rules in exceptional

cases in the interest of the Society, with due care and caution,

in consultation with the Government where necessary and also

in the interest of an employee if the application of any of the

provisions of these rules is causing undue hardship to him/her,

also in consultation with the Government of India whenever

necessary.

SR 36 Removal of doubts

1) Where a doubt arises as to the interpretation or application

of any of the provisions of these rules the matter shall be

referred to the Council for decision.

Page 30

2) Where a doubt arises about a decision taken by the Council,

the Director shall refer the matter to the Government whose

decision shall be final.

54. As SR 28 was not approved, the respondent no. 2 vide office

order no. 37 dated 18.05.2001, extended the benefit of

employees provident fund and Misc. Provisions Act, 1952 to it’s

employees. The order reads as follows:-

“The regulation VII of the Asiatic Society regarding

Provident Fund stipulates that the Provident Fund of

the employees of the Asiatic Society shall be guided

by the Employees Provident Fund and Miscellaneous

Provisions Act, 1952.

In accordance with this stipulation the employees

are entitled to contribute at higher rate than that is

prevailing at present which is 12% of salary as

stipulated in the Act. The employer‟s contribution

should also be equal to the contribution of the

employees subject to maximum of 12% of Pay and

admissible D.A. thereon.

It is, therefore, decided to follow the

Regulation of the Society in terms of the

aforesaid Provident Fund Act. This is being

made effective from the salary month of May,

2001 onwards.

In case any employee of the society desires to

contribute to C.P.F. at the old rate prevailing prior to

May, 2001 the rate of employers‟ contribution will

remain same as before. If no intimation is received

from any employee in writing before 25

th

May, 2001

the contribution to the E.P.F. shall be guided in

terms of provisions contained under Regulation VII of

the Asiatic Society.”

55. Vide order dated 25

th

January, 2023, the Ministry of

Culture directed the respondent no. 2 as follows:-

Page 31

That no remedial/corrective action has been taken by

the Asiatic Society, Kolkata and the Society continues

to make employer‟s contribution over and above the

statutory limit. This is a grave violation of

Government‟s instructions in the matter.

The Asiatic Society, Kolkata has already been

requested to stop deducting excess amount for

employer‟s contribution to EPF immediately as they

are against the provisions of EPF scheme and the

rules and regulations of the Asiatic Society itself.

That even after the C&AG observations

and inclusion of the para in their audit report no. 04

of year 2018, Asiatic Society continued to make the

higher contribution in the EPF accounts of the

employees, C & AG observed that for 160 employees,

Rs. 1.19 Cr. was made as excess contribution during

the period April, 2015 to March, 2017. As the Asiatic

Society continued to make the excess contribution of

more than 5 year since 2017, the excess contribution

may have become now around Rs. 7 Cr. This undue

contribution has been made from the Government

Grant given to the Asiatic Society without any

approval from the Ministry.

Stop contribution to Employer‟s share in

violation of EPF provision as pointed out by Audit

immediately and send a revised ATN within 15 days.

56. The principal contention of the Ministry of Culture in their

letter dated 8

th

February, 2023 at page 54 to the writ

application is as follows:-

“3. ............That ASK which is being fully funded by

this Ministry has also decided to allow to continue to

contribute an amount (i.e. Employees' share of

contribution) over and above the statuary ceiling

limit (computed at 12% of actual basis pay +DA) in

terms of Para 29 of the Scheme in violation of the

Scheme itself by taking a decision that as the

employer (i.e. The Asiatic Society, Kolkata) will bear

Page 32

the administrative charge payable to such

employees under intimation to the Assistant Provide

Fund Commissioner as per provisions in Para 26 (6)

of the Scheme.

4. In this regard, I would like to intimate

that Para 26 A(2) clearly stipulates that the employer

shall not be under an obligation to pay any

contribution over and above the prescribed limit

fixed under Para 29 (2). However, relaxation allowed

by the Society as per para 29 should be restricted

only for the employees NOT EMPLOYERS

contribution and bearing the administrative charges

payable for such employees is not in consonance

with the letter and spirit of the Act and does not

have the sanction of the Ministry. The Ministry

is not liable to extend any grant support

towards a blatant violation of the provisions of

the Central Act. Any legal or financial or

statutory consequences arising out of wrongful

contravention/violation of Act will be the sole

responsibility of ASK, including non

compliance of this Ministry's continued

pursuance for abidance to the provisions of the

Act.

5. Keeping in view the above, ASK is

being directed to kindly follow all the provisions of

the EPF scheme in light of specific observations

made by the Audit and to stop with immediate effect

the employer's share over and above the stipulated

rate and wage limit in violation of EPF rules and

also to initiate recovery of excess payment made in

EPF accounts. An action taken report in the matter

may be furnished to this Ministry at the earliest and

latest by 10th February, 2023. It is also informed

that Secretary Culture has desired that a Meeting of

the Planning Board of the ASK may be convene d

soon, for which an agenda may be prepared and

sent in advance.”

57. The Government of India (Transaction of Business) Rules,

1961, do not directly apply to autonomous bodies. Instead,

Page 33

these rules apply strictly to Central Government ministries and

departments. However, the administrative ministries that

oversee these autonomous bodies are bound by them when

processing approvals or service conditions.

58. While the Transaction of Business Rules dictate how the

government operates, autonomous bodies are generally

governed by their own specific Memorandums of

Association, Rules, and Bye -laws approved by the

Government of India.

59. Para 4 of the said rules of 1961 provides the Inter-

Department Consultations:-

Clause (2)(c) therein relate to the number or grade of posts, or

to the strength of a service, or to the pay or allowances of

Government servants or to any other conditions of their

service having financial implications;

60. The Delegation of Financial Powers Rules (DFPR). 2024

apply directly to all Central Government Ministries, attached,

and subordinate bodies. While autonomous bodies have their

own separate financial rules and bye -laws, the core

principles and limits outlined in the DFPR and General

Financial Rules (GFR) act as the governing baseline for

these bodies as well.

Page 34

61. The financial procedures established by the Ministry of Finance

are deemed applicable to autonomous bodies unless their

specific bye-laws outline alternative financial procedures and

the same is approved by the Govt. of India.

62. Any distinct financial rules or amendments used by an

autonomous body must be formally approved by the

Government of India.

63. In the present case, admittedly the respondent no. 2 being an

autonomous institution functions under the Ministry of

Culture, Govt. of India. The service rules of the society were

duly approved by the government of India on 25.05.1999

except clause 28 which is as follows:-

“RETIREMENT AND OTHER BENEFITS , PENSION

AND PROVIDENT FUND

SR 28 i) The employees of the Society shall be entitled

to pension, gratuity, family pension and general

provident fund benefits as admissible to the employees

of the Central Government from time to time.

ii) The employees who have not opted for pay scales of

the IVth Central Pay Commission will continue to enjoy

the benefits of contributory provident fund and the

gratuity Rules of the Society as existed prior to the

coming into force of these rules.”

64. SR 28, provides for the retirement and other benefits including

pension and provident fund.

65. As such, when the service rules of the respondent no. 2 had the

approval of the Govt. of India except clause SR 28 which

relates, also to provident fund, the respondent no. 2 is bound

Page 35

by the Government of India (Transaction of Business) Rules,

1961 and the Delegation of Financial Powers Rules (DFPR)

2024.

66. The Delegation of Financial Powers Rules, 2024, Rule 8(5)

provides:-

“Rule 8(5) The departments of the Government of India

shall keep in view the following with regard to the

numeric codification for preparation of the Detailed

Demands for Grants, namely:-

(i) the number of tiers of classification in the

Detailed Demands for Grants shall be the

standard six tiers indicated in the table below:

S.N. Type of Head Codification

(1) (2) (3)

1. Major Head -4 digits (Function)

2. Sub-major Head -2 digits (Sub-function)

3. Minor Head -3 digits (Programme)

4. Sub-head -2 digits (Scheme)

5. Detailed Head -2 digits (Sub-scheme)

6. Object Head -2 digits (Primary unit

of Appropriation or

object head)

(ii) the numeric code numbers assigned by the Controller

General of Accounts for Major, Sub -major, Minor

Heads, Sub-heads and Detailed Heads for the Union

and States shall be followed in the Detailed Demands

for Grants;

(iii) the distinction between Revenue and Capital

Expenditure shall be as defined in the Government

Accounting Rules and the General Financial Rules.”

67. Annexure 1, S.L. NO. 8 Code 04 - of the said rules of 2024

provides for pensionary charges which includes provident fund.

68. Admittedly SR 28 of the service rules of respondent no. 2,

which relates to the benefit of provident fund , was not

Page 36

approved by the Govt. of India and as such SR 28 relating to

provident fund remains governed by the Government of

India (Transaction of Business) Rules, 1961 and the

Delegation of Financial Powers Rules (DFPR) 2024.

69. Rule 15 and Appendix -II of the rule of 2024 relates to the

waiver and recovery of the excess payment made.

70. As such, SR 28, relating to the pensionary charges which

includes provident fund of the respondent no. 2, continues to

be within the powers of the Government of India , being

governed and controlled by the Government of India

(Transaction of Business) Rules, 1961 and the Delegation of

Financial Powers Rules (DFPR) 2024.

71. In the present case, the respondent no.2 acted in clear

violation of the said rules, more so, the rule of 1961 which was

in force, when the writ application was filed.

72. Thus the respondent no. 1 is well within its power to

govern the respondent no. 2 in respect of SR 28, which also

relates to provident fund, as the said service rule has not

been approved by the Govt. of India , in favour of the

Respondent no. 2.

73. The respondent no. 2 has thus acted beyond its powers , in

independently taking decision in respect of SR 28, such acts

Page 37

thus being against the guidelines in the rules as referred to

herein.

74. Regarding refund, the same shall be guided by Rule 15 and

Appendix II of the rule of 2024.

75. The petitioners’ case in the writ application being WPA 6229 of

2023 thus having no merit stands dismissed.

76. Applications, if any, connected thereto stand disposed of

consequently.

77. Interim order, if any, stands vacated.

78. Photostat certified copy of this Judgment, if applied for, be given

to the parties on priority basis upon compliance of all

formalities.

[Shampa Dutt (Paul), J.]