Calcutta High Court (Appellete Side)
Asiatic Society‟S Employees‟ Union & … vs The Union Of India & Ors on 20 July, 2026
2026:CHC-AS:1073
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 2026:CHC-AS:1073
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, insofar 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
Page 3 2026:CHC-AS:1073
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
Page 4 2026:CHC-AS:1073made 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 Government 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 Chairman advised for strict
Page 5 2026:CHC-AS:1073adherence 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.
Page 6 2026:CHC-AS:1073
(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
Page 7 2026:CHC-AS:1073
“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 25th January, 2023 issued by the
Director, Ministry of Culture, Government of India calling upon
the respondent no. 2, to revise the contributions payable both
Page 8 2026:CHC-AS:1073
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 are 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
Page 9 2026:CHC-AS:1073
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 employers’
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 2026:CHC-AS:1073
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 employees’ 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
Page 11 2026:CHC-AS:1073
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
Page 12 2026:CHC-AS:1073
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’
Page 13 2026:CHC-AS:1073Provident 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 2026:CHC-AS:1073
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
Page 15 2026:CHC-AS:1073
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 that 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 2026:CHC-AS:1073
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 2026:CHC-AS:1073provisions 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
Page 18 2026:CHC-AS:1073hereby 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 2026:CHC-AS:1073
“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 penal
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
Page 20 2026:CHC-AS:1073
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 2026:CHC-AS:1073
“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 entirely 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 2026:CHC-AS:1073
“… 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 2026:CHC-AS:1073
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 2026:CHC-AS:1073
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 2026:CHC-AS:1073allowance, 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 2026:CHC-AS:1073to 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 30th 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 2026:CHC-AS:1073
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 2026:CHC-AS:1073February 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 2026:CHC-AS:1073
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 2026:CHC-AS:1073
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 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.”
55. Vide order dated 25th January, 2023, the Ministry of
Culture directed the respondent no. 2 as follows:-
Page 31 2026:CHC-AS:1073
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 8th 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 2026:CHC-AS:1073the 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 convened
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 2026:CHC-AS:1073
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 2026:CHC-AS:1073
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 2026:CHC-AS:1073
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 2026:CHC-AS:1073
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 2026:CHC-AS:1073
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.]
