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PETITIONER: DISTRICT EXHIBITORS ASSOCIATION MUZAFFARNAGARAND ORS.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT25/04/1991

BENCH: YOGESHWAR DAYAL (J) BENCH: YOGESHWAR DAYAL (J) SHETTY, K.J. (J)

CITATION:  1991 AIR 1381            1991 SCR  (2) 477  1991 SCC  (3) 119        JT 1991 (2)   330  1991 SCALE  (1)788

ACT:      Employees’   Provident   Funds   Act,   1952/Employees’ Provident  Scheme, 1952: Sections 1,5,6,7/Paragraphs 30, 32- Cine   workers  and  Cinema  theatre  workers-Extension   of berefits   to-Notification-Issue  of-Retrospective   effect- Validity  of-Emmployees, contribution for the  retrospective period-payment   of-Whether  employer  is   liable-Deduction thereof  from wages payable to employees  in  future-Whether permissible.

HEADNOTE:      On   30.4.1986,  a  Notification  was  issued  by   the Government of India amending the scheme under the Employees’ Provident  Funds and Miscellaneous Provisions Act,  1952  in conformity  with Section 24 of the Cine Workers  and  Cinema Theatre  Workers (Regulation of Employment) Act, 1981,  with retrospective  effect  from  1.10.1984. The  effect  of  the amendment  was to extend the benefit of the Provident  Funds Act and the Scheme thereunder to the Cine Workers and Cinema theatre  workers. The appellants challenged the validity  of the  Notification  before  the High Court  by  way  of  writ Petitions, contending that the said Notification was  ultra- vires  the  provisions of the Provident Fund Act  since  the Central  Government  could  not  extent  the  scheme  to  an establishment  which is neither an industry nor  a  notified establishment under Section 3(b) of the Act and there was no liability  under  the scheme to  make  contribution  towards Provident Fund in respect of the employees who ceased to  be Cinema  workers before 30.4.1986. It was  further  contended that  calling upon the employers to contribute arrears  from the date the scheme was made applicable led to hardship  and injustice   and  hence  violative  of  Article  14  of   the Constitution of India.      The Writ Petitions were dismissed by the High  Court.In their  appeals to this Court, the appellants contended  that so  long as the Notification as required by the  proviso  to Section  1(3)(b)  of the Provident Funds Act  has  not  been issued, the Act cannot be made applicable to them  and  even assuming  that Section 24 of the Cinema Theatre Workers  Act takes  the  place of the required Notification,  an  express notification under Section 5 would be required. It was  also

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contended                                                        478 that  under  Section  6  of  the  Provident  Funds  Act  the liability is fixed only for employers’share of  contribution and  not the employees’share, and since paragraph 30 of  the Provident  Fund Scheme was not made applicable, there  arose no liability of the employers to pay employees’share and  as the  appellants were being asked to pay the contribution  of the    employees’   share   retrospectively   without    the corresponding right of employer to recover it from the wages of employees, it was harsh and unjust.      On behalf of the Respondents, it was contended that  it might be possible for the appellants to make deduction  from subsequent  wages  of  workmen  with  the  consent  of   the Inspector as required under the third proviso to para  32(1) of the Provident Fund Scheme.      Partly allowing the appeals, this Court,      HELD:  1.  Section 24 of the Cine  Workers  and  Cinema Theatre  Workers  (Regulation of Employment) Act,  1981  has fulfilled the purpose of the Notification which the  Central Government  could have issued under Section 1(3)(b)  of  the Provident  Funds  Act read with the proviso.  Therefore,  no further  Notification as contemplated by Section 1(3)(b)  of the Provident Funds Act was necessary. Section 24 has  taken the  place  of  the  Notification  contemplated  by  Section 1(3)(b)  of  the Provident Funds Act read with  the  proviso thereto. Therfore, the Provident Funds Act became applicable to the theatres who employ five or more workers with  effect from  1st October, 1984. Again in view of Section 6  of  the Provident  Funds  Act, the employers became  liable  to  pay their contribution to the fund as soon as the Act came  into force i.e.w.e.f.1st October, 1984. [488B-D]      M/s.  Orissa  Cement  Ltd. v. union  of  India,  [1962] (Suppl)  3  SCR 837 and M/s. Lohia Machines  Ltd.v.Union  of India and Ors., [1965] 2 SCR 686, distinguished.      2. It is only by the Notification dated 30.4.1986  that the  Provident  Funds Scheme was amended so as  to  be  made applicable in respect of the cinema theatres employing  five or more persons. Without such a Notification the Scheme  has been  made applicable to the cinema theatres covered by  the Notification with effect from 1st October, 1984. This  could be  done in view of not only the provisions of Section  5(2) of the Provident Funds Act but also in view of Section  7(1) of  the  Provident Funds Act. Both these  provisions  confer express powers of making the                                                        479 Scheme applicable retrospectively.[488E-G]      3. It is obvious from paras 30 and 32 of the  Provident Funds  Scheme that the employer has to pay the  contribution of the employee’s share, but he has a right to recover  that payment by deducting the same from the wages due and payable to  the  employees.  It  is significant  to  note  that  the deduction  is not from the wages payable for any period  but only  from the wages for the period in respect of which  the contribution is payable and no deduction could be made  from any  other wages payable to the employees. In  other  words, the  payment of employees’contribution by the employer  with the corresponding right to deduct the same from the wages of the  employees could be only for the current  period  during which the employer has also to pay his contribution.  [489A- E]      4.  In  the  instant  case, for  the  period  from  1st October,  1984 up to the date of the  Notification  i.e.30th April  1986  the  employer has paid the full  wages  to  the employees  since  during that period, there  was  no  scheme

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applicable   to  his  establishment.   By    retrospectively applying  the  scheme,  he could not be  asked  to  pay  the employees’  contribution  for the period antecedent  to  the notification. The Act and the Scheme neither permit any such payment nor deduction . The employer cannot be saddled  with the  liability  to pay the employees’ contribution  for  the retrospective  period, since he has no right to  deduct  the same from the future wages payable to the employees.  [489F- G]      5. The third proviso to paragraph 32(1)of the Provident Funds  Scheme  could be taken advantage of by  the  employer only where no deduction has been made from the wages of  the employees  due to accidental mistake or clerical error  when the  scheme is operative. Such deduction which has not  been made by accidental mistake or clerical error, could be  made from the subsequent wages with the consent in writing of the Inspector  concerned. The present case is not covered by the third  proviso.  The  employer  could  not  have  made   the deduction  prior to the notification dated 30th April,  1986 since  the  Scheme was not applicable then. The  Scheme  has been  given retrospective effect w.e.f. 1st  October,  1984. The  employer,  therefore, cannot take the  benefit  of  the third   proviso   to   para   32(1)   for   deducting    the employees’contribution    in   their   wages   payable    in future.[489H;490A-C]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 998-999 of 1991.      From  the  Judgment and Order dasted  1.3.1990  of  the Allahabad                                                        480 High Court in C.M.W.P. Nos. 11465 & 3085 of 1987.      Satish   Chandra,   and  Prashant   Bhushan   for   the Appellants.      V.C.Mahajan,  S.D. Sharma, S.N.Terdol and Mrs.Suri  for the Respondents.      The Judgment of the Court was delivered by      YOGESHWAR DAYAL, J. 1. Civil Appeal Nos. 998 and 999 of 1991  have been filed against the judgment of  the  Division Bench  of  the Allahabad High Court dated  1st  March,  1990 whereby   the  Allahabad  High  Court  dismissed  the   writ petitions  filed  by the  District  Exhibitors  Association, Muzaffarnagar  and  others as well as  some  other  Theatres upholding the Notification dated 30th April, 1986 issued  by the Central Government under Section 5 read with sub-section (1)  of  Section 7 of the Employees ’  Provident  Funds  and Miscellaneous  Provisions Act,1952 (hereinafter referred  to as‘the Provident Funds Act’).The main judgment was delivered by  the High Court in the Civil Miscellaneous Writ  Petition filed  on  behalf of Shakti Theatre, Civil  Lines,  Bijnore, which  was followed in the petition filled by  the  District Exhibitors  Association  Muzaffarnagar and others  and  some other  writ petitions.Before us also the Notification  dated 30th  April,  1986 of the Goernment of  India,  Ministry  of Labour, amending the Employees’ provident Funds Scheme, 1952 (For  short ‘Scheme’) issued under the Provident  Funds  Act has been challenged.      2.The  Provident  Funds  Act came into  force  on  14th March,1952. The preamble of the Act states that it is an Act to  provide for the institution of provident  funds,  family pension fund and deposit-linked insurance fund for employees in  factories and other establishments. The Act  by  Section

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1(3)  makes  it applicable to every factory referred  to  in clause  (a) and also to any other establishment referred  to in  clause (b) employing twenty or more persons or class  of such  establishments  which the Central Government  may,  by Notification  in  the  Official  Gazette,  specify  in  that behalf.  The scheme under Section 5 alongwith other  schemes were   issued   in  1952.  The  Provident   Funds   Act   by Notification of the Government of India issued on 31st July, 1961,  under  Section  1(3) was made  applicable  to  cinema theatres employing twenty or more persons.      3.   The  Cine-workers  and  Cinema   Theatre   Workers (Regulation  of Employment) Act, 1981 (hereinafter  referred to as ‘the Cinema                                                        481 Theatre Workers Act) received the assent of the President on 24th December, 1981, and was published in the Gazette on the same  day.  The Cinema Theatre Workers Act came  into  force with effect from 1st October, 1984. The preamble of the  Act says  that  it  is  to provide for  the  regulation  of  the conditions of employment of certain cine-workers and  cinema theatre workers and for matters connected therewith. Section 2(a)  defines  ‘cinema  theatre’ to mean a  place  which  is licensed  under Part 111 of the Cinematograph Act, 1952,  or under  any other law for the time being in force in a  State for  the  exhibition  of  cinematograph  films.  Section  24 enacts:          "The  provisions of the Employees˜ Provident  Funds          and  Miscellaneouss  Provisions Act,  1952,  as  in          force  for  the time being, shall  apply  to  every          cinema  theatre in which five or more  workers  are          employed on any day, as if such cinema theatre were          an  establishment  to which the aforesaid  Act  had          been  applied  by  a notification  of  the  Central          Government under the proviso to sub-section (3)  of          section 1 thereof, and as if each such worker  were          an employee within the meaning of that Act."      4. The Notification of the Government of India amending the  Scheme  under  the Provident Funds Act  was  issued  in conformity  with  Section 24 of the Cinema  Theatre  Workers Act.  The  impugned Notification dated 30th April,  1986  is being   reproduced  for  facility  of   under-standing   the submissions made on behalf of the appellants:          ‘NOTIFICATION          G.S.R.  In  exercise  of the  powers  conferred  by          Section 5 read with Sub-section (1) of Section 7 of          the  Employees’ Provident Funds  and  Miscellaneous          Provisions  Act,  1952 (19 of  1952),  the  Central          Government   hereby  makes  the  following   Scheme          further   to  further  to  amend   the   Employees’          Provident Funds Scheme, 1952 namely;          1.  This  Scheme  may  be  called  the   Employees’          Provident Funds (Amendment) Scheme, 1986.          2.  In  the Employees’ Provident  Funds  Scheme  in          paragraph  1, in sub-paragraph (3), in  clause  (b)          after  item  (XOV11) the following  item  shall  be          added, namely:                                                        482          ‘(XOV11) as respect the Cinema Theatre employing  5          or  more workers as specified in Section 24 of  the          Cine   WorKers   and   Cinema   Theatres    Workers          (Regulation  of Employment) Act, 1981 (50 of  1981)          be deemed to have come into force with effect  from          the 1st day of October, 1984’.          (No. S 35016/1/86-SS11)                                            Sd/-A.K.Bhattari

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                                           Under Secretary                                                  30.4.1986’      5. A perusal of the Notification shows that the  Scheme has  been  retrospectively  made applicable  in  respect  of cinema theatres employing five or more workers as  specified in Section 24 of the Cinema Theatre Workers Act with  effect from  1st October , 1984 though the Notification was  issued on  30th April, 1986. 1st October, 1984 is also the date  of coming into force of Cinema Theatre Workers Act.      6.  Before the High Court the main arguments raised by the appellants were:          a) that the Notification dated 30th April 1986  was          ultra  vires  of the provisions  of  the  provident          Funds Act inasmuch as the Central Government  could          not extend the scheme to an establishment which  is          neither  an industry nor a  notified  establishment          under Section 3(b) of the Provident Funds Act;          b)  that  there was no liability under  the  scheme          framed   by   the  Central   Government   to   make          contribution towards the provident fund in  respect          of the employees who ceased to be a cinema employee          before the Provident Funds Act came into force from          30th April,1986:and          c)   that  the  demand  of  the   Provident   Funds          Commissioner from  the employers about the  arrears          of contribution even for  prediscovery period  i.e.          the date from which the scheme became applicable to          employers, who were called upon to pay contribution          by  notice,  leads to hardship and  injustice  and,          therefore, violates Article 14 of the Constitution.                                                        483      7.   The   High   Court  while   dealing   with   these          submissions  took the view that Section 24  of  the          Cinema   Theatre  Workers  Act  has   applied   the          provisions  of  the Provident Funds  Act  to  every          cinema  theatre in which five or more workers  were          employed on any day, as if such cinema theatre were          an  establishment  to which the provisions  of  the          Provident Funds had been applied by a  Notification          of  the  Central Government under  the  proviso  to          clause  (b) of sub-section (3) of Section 1 of  the          Provident  Funds Act.  The High Court, in  view  of          the  averments made in the counter-affidavit  filed          on  behalf  of  the respondent as well  as  on  the          interpretation  of the scheme, took the  view  that          only those employees who were in employment on 30th          April, 1986 and had not ceased working in a  cinema          in  respect of whom the benefit was being  claimed,          could be entitled to get the benefit of the scheme.          In the notice the demand of contribution was sought          under  the  Sachem  in  respect  of  the  employees          working  on 30th April, 1986 with effect  from  Ist          October,  1984.  The High Court took the view  that          since  the  demand  was  made  for  the  employers’          contribution  in respect of the employees who  were          working on 30th April, 1986, it was wrong to  argue          that  the  scheme was  being  incorrectly  applied.          Those  workers  who  had left the  cinema  and  had          ceased to be its workers on 3oth April, 1986, would          certainly not be entitled to any benefit under  the          scheme.   Regarding the challenge to the demand  by          the Provident Fund Commissioner from the  employers          about  the arrears of contribution, the High  Court          felt that there was no substance in that argument.      8.   Before us Mr. Satish Chandra, learned counsel  for

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the appellants submitted:          i)  that  the  Provident Funds  Act  would  not  be          applicable so long as the Notification as  required          by  the  proviso to Section 1(3)(b)  has  not  been          issued;          ii) even if we assume that Section 24 of the Cinema          Theatre   Workers   Act  takes  the  place   of   a          Notification  being issued as contemplated  by  the          proviso  to Section 1(3)(b) of the Provident  Funds          Act,  an  express Notification under Section  5  is          required  to  make the scheme applicable  to  those          establishments and without such a Notification  the          scheme will not be applicable:          iii)  that under Section 6 of the  Provident  Funds          Act,  the  liability is only fixed  for  employers;          share  of contribution towards Provident Funds  and          there is no liability fixed to                                                        484          pay  employees’ share, and unless paragraph  30  of          the scheme is made applicable there is no inability          of the employers to pay employees’ share;          iv) that the Notification is very harsh and  unjust          as  the  appellants  are being  asked  to  pay  the          contribution   of  the  employees  share   to   the          Provident Fund Account retrospectively without  the          corresponding right of employer to recover it  from          the wages of employees.      9.   It may be mentioned that the vires of any  of  the provision  of the Provident Funds Act or the Scheme has  not been  challenged  before  us.  As would  be  seen  from  the preamble of the Provident Funds Act, the Act is intended for the benefit of the employees.  It is also so clear from  its objects and reasons extracted below:          "The  question  of making some  provision  for  the          future of the industrial worker after he retires or          for his dependants in case of his early death,  has          been under consideration for some years.  The ideal          way  would have been provision through old age  and          survivors’  pensions  as  has  been  done  in   the          industrially   advance  countries.   But   in   the          prevailing conditions in India the institution of a          pension  scheme cannot be  visualised in  the  near          future. Another alternative maY be for provision of          gratuities  after a prescribed period  of  service.          The  main defect of a gratuity scheme, however,  is          that  amount  paid to a worker  or  his  dependants          would be small, as the worker, would not himself he          making  any contribution to the fund.  Taking  into          account  the  various difficulties,  financial  and          administrative, the most appropriate course appears          to be the institution compulsorily of  contributory          provident  funds in which both the worker  and  the          employer   would  contribute.   Apart  from   other          advantages, there is the obvious one of cultivating          among  the  workers a spirit  of  saving  something          regularly.  The institution of a provident fund  of          this type would also encourage the stabilisation of          a steady labour force in industrial centres".      10.  It is a legislation for the benefit of the  worker sections  of the society and the beneficial  legislation  is made  applicable  to cinema theatres if it employs  five  or more  workers.  The classification of cinema theatres  as  a separate class for purposes of coverage under the Provi-                                                        485 dent Funds Act has also not been challenged.

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    11.   Further no challenge has been made to any of  the provision of the Cinema Theatre Workers Act.      12.   Before  we deal with the submissions  of  learned counsel  for the appellants we may notice the relevant  part of  provisions  of the Provident Funds Act and  the  Scheme. Section 1(3) of the Provident Funds Act reads as follows:          "Subject to the provisions contained in Section 16,          it applies-          (a)  to  very  establishment  which  is  a  factory          engaged in any industry specified in Schedule 1 and          in which twenty or more persons are employed, and          (b) to any other establishment employing twenty  or          more persons or class of such establishments  which          the Central Government may, by notification in  the          Official Gazette, specify in this behalf:           Provided  that the Central Government  may,  after          giving  not  less than two months’  notice  of  its          intention so to do, by notification in the Official          Gazette,  apply the provisions of this Act  to  any          establishment employing such number of persons less          than   twenty   as   may  be   specified   in   the          notification."      13.  Section 5(1) and (2) provide as follows:          "5. Employees’ Provident Fund Schemes-          (1) The Central Government may, by notification  in          the  Official Gazette, frame a Scheme to be  called          the  Employees’  Provident  fund  Scheme  for   the          establishment  of provident funds  under  this  Act          for  employees  or for any class of  employees  and          specify    the   establishments   or    class    of          establishments to which the said Scheme shall apply          and  there shall be established as soon as  may  be          after  the framing of Scheme, a Fund in  accordance          with the provisions of this Act and the Scheme.          (1-A).....           .....          .....          (1-B).....           .....          .....                                                        486          (2)  A  Scheme  framed under  sub-section  (1)  may          provide  that  any  of its  provisions  shall  take          effect  either prospectively or retrospectively  on          such date as may be specified in this behalf in the          Scheme"      14. The relevant part of Section 6 reads as follows:          "6.    Contributions  and  matters  which  may   be          provided  for  in Schemes  The  contribution  which          shall be paid by the employer to the Fund shall  be          eight  and one third per cent of the  basic  wages,          dearness allowance and retaining allowance, if any,          for   the  time  being  payable  to  each  of   the          employees,  whether employed by him directly or  by          or   through  a  contractor,  and  the   employee’s          contributions  shall be equal to  the  contribution          payable by the employer in respect of him and  may,          if  any employee so desires, b an amount  exceeding          eight  and one-third per cent of his  basic  wages,          dearness allowance and retaining allowance, if any,          subject  to the condition that the  employer  shall          not be under an obligation to pay any  contribution          over and above his contribution payable under  this          section."      15.  Para 1(1) and relevant parts of paras 1(3)(a)  and 1(3)(b) of the Scheme read as follows:-          "1.   Short title and application-(1)  This  Scheme          may be called the Employees’ Provident Funds Scheme          1952.

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        (2)......            .....               .....          (3)(a) Subject to the provisions of Sections 16 and          17  of  the  Act, this Scheme shall  apply  to  all          factories and other establishments to which the Act          applies or is applied under sub-section (3) or sub-          section 4(1) of Section 1 or Section 3 thereof:          ..........                                   ......          (b) Provisions of this Scheme shall-          ......                 .......               ......          (xcviii) as respect the cinema theatres employing 5          or  more workers as specified in Section 24 of  the          Cine-Workers    and   Cinema    Theatres    Workers          (Regulations of Employment) Act, 1981 (50 of  1981)          be deemed to have come into force with effect  from          the 1st day of October, 1984."                                                        487      16.   The  relevant  parts of paras 30 and  32  of  the Scheme read as follows:          "30. Payment of contribution-          (1) The employer shall, in the first instance,  pay          both  the contribution payable by himself  in  this          Scheme  referred to as the employer’s  contribution          and  also, on behalf of the member employed by  him          directly  or  by  or  through  a  contractor,   the          contribution payable by such member’s in the Scheme          referred to as the member’s contribution.          (2).....             ......              .....          (3) It shall be the responsibility of the principal          employer  to pay both the contribution  payable  by          himself  in  respect  of  the  employees   directly          employed  by  him  and  also  in  respect  of   the          employees  employed by or through a contractor  and          also administrative charges.          Explanation          ......    .......   .......          32. Recovery of a member’s share or contribution          (1)  The amount of a member’s contribution paid  by          the employer or a contractor shall, notwithstanding          the  provisions in this Scheme or any law  for  the          time  being  in  force  or  any  contract  to   the          contrary, be recoverable by means of deduction from          the wages of the member and otherwise:          Provided  that no such deduction may be  made  from          any  wage other than that which is paid in  respect          of  the period or part of the period in respect  of          which the contribution is payable:          .........            ......              ......          Provided  further that where no such deduction  has          been made on account of an accidental mistake or  a          clerical  error,  such  deduction  may,  with   the          consent in writting of the Inspector, be made  from          the subsequent wages.          (2)......            ......              ......          (3)......            ......              ......      17.  A combined reading of Section 6 of  the  Provident Funds Act                                                        488 and paras 30 to 32 of the Scheme is that the contribution to the  Provident Fund is to be 12 1/2% of the basic wages  and dearness  allowance,  that  is to be borne  equally  by  the employer  and the employee and that the employer is  to  pay the whole of it, half on his account, and the other half  on account  of  the  employee and he is to  recoup  himself  by deducting it from the wages of the employee.      18.  A bare reading of Section 24 of the Cinema Theatre Workers  Act shows that it has fulfilled the purpose of  the

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Notification which the Central Government could have  issued under  Section 1(3)(b) of the Provident Funds Act read  with the   proviso.   Therefore,  no  further   Notification   as contemplated  by Section 1(3)(b) of the Provident Funds  Act was  necessary.  Section  24  has taken  the  place  of  the Notification  contemplated  by  Section  1(3)  (b)  of   the Provident   Funds  Act  read  with  the   proviso   thereto. Therefore  the Provident Funds Act became applicable to  the theatres  who employ five or more workers with  effect  from 1st  October,  1984.   Again in view of  Section  6  of  the Provident  Funds Act, noticed earlier, the employers  became liable to pay their contribution to the fund as soon as  the Act came into force i.e. w.e.f. 1st October, 1984.      19.  It is also clear from reading of Section 5 of  the Provident  Funds Act that before the Provident Funds  Scheme can become applicable, the Central Government has to frame a Scheme and also specify the establishment to which the  said Scheme  shall apply.  Till the impugned  Notification  dated 30th April, 1986 was published the Scheme was not applicable to  such  cinema theatres who are employing   less  than  20 employees  and  it  became  applicable  to  cinema  theatres employing  five  or  more workers  only  when  the  impugned Notification  was  issued under Section 5 of  the  Provident Funds Act.  It is only by the impugned Notification that the scheme was amended so as to be made applicable in respect of cinema  theatres  employing five or more  persons.   Without such  a  Notification  the  Scheme  would  not  have  became applicable.   The Notification on the face of it shows  that the  Scheme has been made applicable to the cinema  theatres covered  by the Notification with effect from  1st  October, 1984.  This could be done in view of not only the provisions of Section 5(2) of the Provident Funds Act but also in  view of  Section  7(1) of the Provident Funds  Act.   Both  these provisions  confer  express  powers  of  making  the  Scheme applicable retrospectively.      20.   The  question however, is whether by  making  the Scheme  with retrospective operation, the employer could  be saddled with the                                                        489 liability to pay employees’ contribution w.e.f. 1st October, 1984  and  if not from what other date?  The answer  to  the question turns upon the implementation of the Scheme and  in particular  the  giving  effect to paras 30 and  32  of  the Scheme.   Para 30 provides that the employer shall,  in  the first  instance,  pay  both  the  contributions  payable  by himself and also the contribution payable by the  employees. It shall be the responsibility of the principal employer  to pay  both the contributions payable by himself and  also  in respect  of the employees directly employed by  himself  and also   in  respect of the employees  directly   employed  by himself and also in respect of the employees employed by him or  through a contractor. Para 32 confers upon the  employer the  right  to recover the employees contribution  that  has been paid by him under para 30.  That could be recovered  by the  employer  by means of deduction from the  wage  of  the employees  who  are liable to pay.  First  proviso  to  para 32(1)  however, limits that liability in  expressly  stating that no such deduction may be made from any wage other  than that  which  is paid in respect of the period of  which  the contribution,  is payable.  It is obvious from paras 30  and 32  that  the employer has to pay the  contribution  of  the employee’s share but he has a right to recover that  payment by deducting the same from the wages due and payable to  the employees.  It is significant to note  that the deduction is not from the wages payable for any period, but only from the

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wages for the period in respect of which the contribution is payable and no deduction could be made from any other  wages payable  to the employees.  In other words, the  payment  of employees   contribution   by   the   employer   with    the corresponding right to deduct the same from the wages of the employees could be only for the correct period during  which the employer has also to pay his contribution.      In  the instant case for the period from  1st  October, 1984  up  to  the  date of  the  impugned  Notification  the employer  has  paid the full wages to  the  employees  since during  that period, there was no scheme applicable  to  his establishment.   By  retrospectively  applying  the  scheme, could he be asked to pay the employees contribution for  the period  antecedent to the impugned notification.   We  think not.  The Act and the Scheme neither permit any such payment nor  deduction.  He cannot be saddled with the liability  to pay  the  employees’  contribution  for  the   retrospective period,  since he has no right to deduct the same  from  the future wages payable to the employees.      21.   Mr.  Vikram  Mahajan,  learned  counsel  for  the Central Government submitted that it may be possible for the employers  to  make deduction from subsequent wages  of  the workmen  with  the consent in writing of  the  Inspector  as required under the third proviso to                                                        490 para  32(1)  of  the  Scheme.   This  submission  cannot  be accepted since the third proviso could be taken advantage of by  the employer only where no deduction has been made  from the  wages  of the employees due to  accidental  mistake  or clerical    error  when  the  scheme  is  operative.    Such deduction  which has not been made by accidental mistake  or clerical error, could be made from the subsequent wages with the consent in writing of the Inspector concerned.  The case with  which  we are concerned is not covered  by  the  third proviso.   It is not the case of any body that the  employer could not make deduction from the wages of the employees  by accidental  mistake or clerical error.  The employer  indeed could  not  have made the deduction prior  to  the  impugned notification dated 30th April, 1986 since the Scheme was not then  applicable.  The Scheme has been  given  retrospective effect  w.e.f. 1st October, 1984.  The  employer  therefore, cannot  take the benefit of the third proviso to para  32(1) for  deducting  the employees contribution  in  their  wages payable in future.      22.   Reference was also made to the decisions of  this Court  in M/s. Orissa Cement Ltd. v. Union of India,  [1962] (Suppl) 3 SCR 837 and in M/s. Lohia Machines Ltd., v.  Union of  India and Ors., [1965]2 SCR 686 by learned  counsel  for the  appellants in support of his contentions.  It  will  be noticed that the Supreme Court in Orissa Cement Ltd.  [1962] (Suppl) 3 SCR 837 was concerned with the validity of certain Notifications  which were struck down as infringing  Article 19(1)(g)   of  the  Constitution.   The  decision,  has   no applicability  to the facts of the present  case.   Equally, the  decision, in Lohia Machines Ltd., [1965] 2 SCR 686  has also no applicability to the facts of the present case.      23.   In the result and for the foregoing  reasons,  we allow  the appeals as indicated above by setting  aside  the judgment of the High Court.  We declare that the  appellants are  not  liable to pay the employees contribution  for  the period from 1st October, 1984 to 30th April, 1986.      24.   In  the  facts and  circumstances  of  the  case, however, we make no order as to costs. G.N.                            Appeals partlly allowed.                                                        91

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