1 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side Present: The Hon’ble Justice Shampa Dutt (Paul) WPA 28825 of 2022 Shankar Kumar Gupta Vs. The Regional Provident Fund Commissioner, RO, Jamshedpur, Jharkhand & Ors. For the Petitioner : Mr. Soumya Majumder, Ld. Sr. Adv. Mr. Sourajit Dasgupta, Adv. Mr. Aniket Chwodhury, Adv. For the P.F. Authorities : Mr. Rajib Ray, Adv. Judgment reserved on : 24.08.2026 Judgment delivered on : 28.09.2026 SHAMPA DUTT (PAUL), J. : 1. The writ application has been preferred challenging an order dated 26th September, 2022 passed by the respondent Regional Provident Fund Commissioner-II. Vide the impugned order the authority concerned on certain observations gave the following findings:- “I have gone through the Submission by Department Representative and the Establishment on various dates. The main reason for hearing this case (as per direction of the Honorable High Court) was that the establishment was not issued summons and establishment's reply was not considered and heard. In the past 8 Years sufficient 2 notices have been issued and the Employer has been given ample time to explain its position. Establishment has mainly submitted that its works of "Interior Decoration" is not under any Schedule Head. This argument of the establishment cannot be accepted as in my opinion there is a very thin line between "Interior work using civil" and "Interior Decoration". Any interim work usually requires civil work and therefore, I agree with the Department Representative’s submission that the nature of work of the establishment is Civil and is covered under the Schedule Head and finally held that the other point that the Establishment is arguing is that the workers engaged by it since 1992 where through contactors and the beneficiaries are not identifiable today Therefore, dues should not be assessed. These arguments hold no ground and are rejected because dues of contract worker and their identification is the establishment's duty as per para 36 of the EPF and MP act 1952. Also there are numerous Court judgement including the " Nasiruddin Bidi vs CPFC," dated 30 January 2001, by which it was decided by the court that liability of the employer cannot be absolved on the plea of unidentification of workers employed through the contractors. The Other point related to wrong calculation of dues as per balance sheet figures was also examined. It was found that the then Departmental Representative had clearly calculated PF dues on wages and salary component shown in the balance sheet of each year. I further order to pay the applicable 14B & 7Q which will be calculated on the actual payment of the dues which are still payable. In case the employer has remitted any interest for the period of inquiry he may submit proof 3 thereof. The time of 60 days so allowed will not, however, absolve the employer of any damages/interest that may be payable under Section 14B and 7Q of the Act respectively from any other action so warranted by the Act. Any escaped amount would attract provisions of Section 7C of the Act.” 2. The petitioner‟s case in short is that the Provident Fund authorities have wrongly relied upon the proposition that burden of proof is on the employer to show that the Act is not applicable to it for coverage. 3. It is further stated that the judgment in H.P. Forest Corporation vs. Regional Provident Fund Commissioner reported in (2008) 5 SCC 756, relied upon by the authority is not applicable in the present case as the said order has been passed exercising power under Article 142 of the Constitution of India. 4. Petitioner submits that just as parties cannot opt out of a statute, they also cannot opt in a statute if the law otherwise does not apply to the party. The primary condition for applicability under Section 1 (3) (b) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 is coverage by reason of the class of establishment or the establishment alone to be governed under the Schedule to the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 or being enumerated in para 1 of the EPF Scheme, 1952. As will appear from the impugned 7A Order that the Department wanted to cover the establishment classifying it as "Architect". However, the said classification "Architect" does not feature in the 4 Schedule to the Act or in Para 1 of the EPF Scheme, 1952. The closest activity which can be referred in this case for the coverage of the establishment is Para 1(xc) of the EPF Scheme, 1952 which reads as follows: - "(xc) As respects the establishments engaged in building and construction industry specified in the notification of the Government of India in the Ministry of Labour, No. G.S.R. 1069, dated the 11th October, 1980, come into force on the 31st October, 1980." 5. Mr. Majumder, learned Senior counsel for the petitioner submits that the expression “Building and construction industry” is entirely different from the concept of interior decoration. “Building or other construction work" as understood within the meaning of Section 2(d) of the Building and other Construction Workers (Regulations of Employment and Conditions of Service) Act, 1996 reads as follows:- "(d) "building or other construction work" means the construction, alteration, repairs, maintenance or demolition, of or, in relation to buildings, streets, roads, railways, tramways, airfields, irrigation, drainage, embankment and navigation works, flood control works (including storm water drainage works), generation, transmission and distribution of power, water works (including channels for distribution of water), oil and gas installations, electric lines, wireless, radio, television, telephone, telegraph and communications, dams, canals, reservoirs, watercourses, tunnels, bridges, viaducts, aqueducts, pipelines, towers, cooling towers, 5 transmission towers and such other work as may be specified in this behalf by the appropriate Government, by notification but does not include any building or other construction work to which the provisions of the Factories Act, 1948 (63 of 1948), or the Mines Act, 1952 (35 of 1952), apply.” 6. Mr. Majumder further argues that by way of analogy reference may be made to the provisions of Sections 390, 392 and 396 of the Kolkata Municipal Corporation Act, 1980. The said provisions will suggest what a building and construction work can be for the purpose of Municipal Laws. It is admitted position that in relation to interior designing, no municipal license or permission is required to be obtained. 7. Rule 3(2) of the KMC Building Rule, 2009 is relied upon and placed:- “3.(2) Notwithstanding the provisions of sub-rule (1) no building permit shall be required for- (a) erection, re-erection, addition to, or alteration of - (i) an internal partition wall which does not violate any of the provisions of the Act or these rules, or (ii) a parapet wall or a cornice or chajja within the boundaries of the site and not overhanging a street, however, that the total height of the parapet wall shall not be more than 1.50 m. and width of the cornice or chajja shall not be more than 60 cm. (b) repairing of a staircase or of lift-shaft (c) white washing or painting (d) reflooring of the surface of an existing floor (e) minor repairs and reflooring of an existing damaged roof without changing the character and dimension of such roof 6 (f) erection of a false ceiling in any floor for air-conditioning, lighting or decorative purposes (g) plastering and patch work (h) providing or closing an internal door or window or a ventilator not opening directly opposite a door or a window of another building (i) replacing of fallen bricks, stones or repairing of damaged pillars or beams (j) repairing or renewing existing plumbing, sanitary and other utility services (k) repairing of boundary wall 14 (l) carrying out such other work as is necessary in the opinion of the Municipal Commissioner, for reasons to be recorded in writing, to maintain the building in a condition of good repair or to secure it to prevent danger to human life.” Therefore, it is stated that the provision makes it abundantly clear that no permission would be required for such internal repairs as conducted by the petitioner. 8. Therefore, the indiscriminate coverage of the writ petitioner establishment is not reconcilable with any of the heads of coverage. The impugned order is therefore wholly without jurisdiction and without deciding the coverage aspect, no recovery proceeding can be initiated against the petitioner. The impugned orders including those of attachment, are prayed to be set aside. 9. The following judgments have been relied upon by the petitioner:- 7 a) (2008) 5 SCC 756 H.P. State Forest Corporation v. Regional PF Commissioner. b) (2011) 5 SCC 435 Joint Action Committee of Airline Pilot’s Association of India (ALPAI) and Ors. v. Director General of Civil Aviation and Ors. c) (2013) 5 SCC 470 Rajasthan State Industrial Development and Investment Corporation & Anr. v. Diamond & Gem Development Corporation Ltd. & Anr. d) (2006) 1 CHN 547 Gurbir Kaur v. Regional Provident Fund Commissioner, Employees’ Provident Fund Organisation and Ors. e) (2004) 8 SCC 229 Krishna Bahadur v. Purna Theatre & Ors. 10. Parties have exchanged affidavits in the present case and the respondent/EPF authority has denied the case of the petitioner and stated that M/s SKG (Civil & Interiors) Pvt. Ltd. (hereafter to be referred as establishment) founded in 1989 applied on its own for coverage under EPF & MP Act' 1952 giving a statement of twenty employees with names, father's name, age and date of joining. The statement as well as supporting copy of attendance sheet of such employees bears attestation of Sri Shankar Gupta, Director of the establishment. The establishment also submitted a copy of registration certificate under Jharkhand Shop and Establishment Act duly disclosing its address at Jamshedpur and copy of purchase order 8 issued by M/s Jusco in which Vendor Code 10833 mentioned. Based on these, other supporting documents and establishment's own application, the establishment was brought under purview of EPF & MP Act, 1952 w.e.f. 15.02.2006 under section 1(3)(b) & under schedule head "Architect" subject to verification of past records and issued coverage letter vide no. JH/Jsr/Coverage/06/94 dated 13.04.2006. 11. For allotment of Code number, the Director of the establishment had submitted the following records/documents for allotment of code number:- 1. Memorandum & Articles of Association. 2. Pan card of the firm. 3. Pan number of the establishment. 4. Telephone bill. 5. Employee's strength. 6. Form 5A. 7. Bank statement/photo copy of the cheque book. 8. Copy of registration registered under Shop & Establishment. 9. Form for allotment of business number duly signed by the Director 10. Copy of purchase order issued by M/s Jusco dated 25.01.2006 mentioning vendor code is 10833. 9 12. Mr. Ray submits that as per memorandum of Association of the establishment, the business activities of the establishment are as under:- "To carry on the business of builders, contractors, construction. developers, promoters, importers, interior decorators and to buy sell, deal in develop, turn, to account, any land, premises and property of all kinds." 13. As such, it is stated that the main activities of the establishment as mentioned in memorandum of Association of the establishment and documents submitted at the time of coverage as well as purchase order of JUSCO reveals that the nature of business activity of the establishment is Civil also. The said business activity thus comes under the Schedule head "Engineers and engineering contractors, not being exclusively engaged in building and construction industry "Architects" w.e.f. 31.10.1964. 14. As the established did not respond to the CCTS notice, the then APFC by issuing a notice vide no. JSR/Compliance/Circle/14640/2417 dated 01.12.2008 initiated an inquiry under section 7A of EPF & MP Act, 1952 against the said establishment, as the establishment had not remitted the EPF & allied dues and also not submitted monthly and annual returns for the period from 03/2006 to 09/2008. 15. On 08.06.2009, the petitioner submitted only copies of Balance Sheet for the year 1991-92 to year 2002-2003. As the date of coverage was to 10 be decided, the petitioner had again requested for some time to submit relevant records since its date of initiation. Sh R.R. Pandey, EO & D.R. was directed to verify all the available records of the establishment and submit his report by the date of next hearing i.e., on 22.06.2009 on the basis of available records. 16. That on 22.06.2009, Sh. R. R. Pandey, EO & D.R. had submitted his report dated 19.06.2009 wherein he had recommended to shift back the date of coverage i.e., from 05.04.1992. The petitioner had perused the EO's report dated 19.06.2009 and stated that they have nothing more to submit/represent and put his signature in the daily order sheet dated 22.06.2009. Accordingly, the case was closed and order was reserved. 17. By an order no. 3050 dated 02.12.2009 being annexure "P/3" of this writ petition, the Assessing Officer Sh. A. K. Srivastava, the then APFC was pleased to direct that the date of coverage of the establishment needed to be shifted back from 15.02.2006 to 05.04.1992 and assessed the dues at Rs. 8766647/- under section 7A and Rs. 3932068/- under section 7Q from 04/1992 to 03/2008. 18. The review application under Section 7B of the Act was rejected. 19. It is, thus, submitted that the petitioner had filed an appeal under Section 7-I of the Act before the EPF Appellate Tribunal, New Delhi when the Hon‟ble EPFAT, New Delhi was pleased to stay this impugned 11 order on deposit of 40% of the assessed amount and attachment of back account of the establishment had been withdrawn. 20. Challenging the said order dated 26.03.2010 passed by the Hon'ble EPFAT, New Delhi, the establishment had preferred a writ petition (Civil) no. 3357/2010 before the Hon'ble High Court, Delhi and by an order dated 10.04.2013 being annexure "P/4" of this writ petition, the Hon'ble High Court, Delhi was pleased to dispose of said the writ petition, with the direction that:- "I set aside both the impugned orders remanding the case back to APFC. In case the APFC desires to raise a demand in respect of the period prior to March 2006, he shall serve a notice on the petitioner in accordance with law and take appropriate steps strictly in compliance with the principles of natural justice. The petitioner shall also be provided with the report dated 19.06.2009 or any other report that may have been prepared and that may be prepared and relied upon by the relevant authorities in their proceedings to enable the petitioner to explain its position. The petitioner shall appear before the APFC on 14.05.2013." 21. On 14.05.2013 the establishment had submitted a representation stating that for the case period from March 2006 to September 2008 (as per summons dated 01.12.2008) the establishment had paid all its dues. As such it is stated that, since March 2006 till date, no amount remains outstanding as on date. 22. With regard to the period from 1992-93 to 02/2006, the case of the establishment is as follows :- 12 1. No Show Cause notice was issued allowing an opportunity to the establishment as to why or how the dues were determined for the period. 2. The business of the establishment being “interior decoration” was not covered under the EPF Scheme and that the said establishment under business compulsion opted for registration at Jamshedpur in 2006, mistakenly under section 1(3)(b) instead of section 1(4) of the EPF Act, which mistake could be corrected. 3. Determination of liability of the employer without identification of the employees was contrary to the ratio of the Hon'ble Supreme Court's Judgment in the matter of H.P. State Forest Corporation Vs Regional Provident Fund Commissioner, vide 2008(5) SCC 756. 23. The establishment further stated that the Assessing Officer did not make any attempt to identify the employees of the establishment during the period from 1992 up to 02/2006 i.e., prior to its registration. It is the case of the establishment that the workers were being supplied to them by labour contractors during the period and that since the establishment of the business it was not covered under the EPF Scheme and it did not maintain any record of those purely temporary and need-based workers supplied by contractors from time to time. The details of contractors concerned namely are Nobin Durai, Vill Paikhela, PO Joargarh, Dist, Howrah and S. K. Assruddin, vill - Boganayapara, PO - Dakgha, South 24 Parganas. 24. It appears that service upon the petitioner could not be affected for hearing (afresh) in the proceedings under Section 7A EPF Act. 13 25. The respondent authority then after taking into consideration the documents available on record has passed the order impugned dated 26.09.2022 assessing an amount of Rs. 87,66,647/- as dues for the period 05.04.1992(1992-93) to 2008-09 (up to 09/2008) under Section 7A of the Employees Provident Fund & Miscellaneous Provisions Act, 1952. 26. The writ application has been preferred challenging the said order. 27. The respondent has thus, prayed for dismissal of the writ application, on the ground that the impugned order is in accordance with law. In reply, the petitioner has reiterated his case as stated in the writ application. 28. The respondent nos. 1 and 2 on filing their written notes have also reiterated their case as stated in the affidavit in opposition. 29. Report in the form of affidavit has been filed by the respondent EPF authorities wherein it appears, that RRC No. 2568 for Rs. 87,66,647/- dated 18.04.2023 in respect of M/S SKG (Civil & Interiors) Pvt. Ltd. Bearing P.F. Code No. JH/JAM/14640 has been transferred to the Regional Office, Kolkata - vide letter no. 582 dated 05.06.2024 for taking action as the director of the establishment is residing under the jurisdiction of Regional Office, Kolkata. However, CP-26 was issued to the Officer-In-Charge, Police Station, New Town, Kolkata but it didn‟t yield any result. 14 30. In the said report the document dated 30.06.2024/05.06.2024 regarding transfer of the petitioner code has been stated. 31. The relevant information of the establishment in the said letter of the respondent is as follows:- a) Name of the Establishment : M/s SKG (Civil & Interior) Pvt. Ltd. b) Name of Director : Sri. Shankar Kumar Gupta, Director c) Residential Address : Flat 7C, Silver Cooperative Housing Society Block CD-16, Action Area-1, New Town Kolkata, West Bengal, Pin- 700 156. d) RRC was issued in 18th Apr. 2023. 32. It appears that the petitioner carried on a business of Civil & Interiors. The said documents do not show that the petitioner was carrying on business of building and construction. 33. It is the case of the petitioner that the work of interior decoration sometimes includes minor civil works in the case of renovation and this work does bring it under the work of an “architect” as held by the PF Authority. 34. It appears that the respondent authorities contention is that the work of the petitioner is classified as „Architect‟ and as such is covered under the Act (Page 2 of the order). 35. An Architect means :- “a person whose job is to design buildings”. 36. A civil and interior decorator. 15 Civil interior design is specialized part of interior work that focuses on the structural and foundational aspects of any indoor space. It includes all basic modification work needed before the decorative design begins. This means breaking or making walls, shifting doors and windows, flooring, celling work, electrical layouts, plumbing and more. In short, civil interior work creates the base structure that makes way for the final interior design. Unlike general interior design, which focuses more on looks and decoration, civil interior design deals with proper planning to ensure safety, durability and proper function. 37. Thus it is clear that the business of the petitioner prima facie never included the job of “designing buildings”, and thus the classification “Architect appears to have been given only for the purpose of coverage which the petitioner needed to get the job with “JUSCO”. 38. Admittedly as per „memorandum of Association‟ of the establishment the business activities of the establishment, are as under:- “To carry on the business of builders, contractors, construction, developers, promoters, importers, interior decorators and to buy sell, deal in develop, turn to account, any land, premises and properly of all kinds.” 39. It is a fact that all works as noted in the MOA are not carried out by a company. 16 40. The authority has based his decision on purchase orders of “Jusco”, that the activity included civil work also. The said orders appear to be prima facie needed for „interior decoration‟ and not building or construction and also not designing building. 41. As has been discussed earlier interior decoration includes minor civil works too. 42. The number of employees engaged by the petitioner is also doubtful, as the petitioners stand is that the workers were engaged through contractors and on the job being completed, the workers were released. The work done by each worker is work specific. 43. Admittedly the company/partnership (petitioner) has now dissolved. 44. Thus there is nothing on record to suggest that the petitioner ever carried out the work of an “Architect” or was engaged in building and construction. 45. The respondent could not produce any documents to substantiate their case that the petitioner in any matter what so ever had carried out any work either of an architect or had constructed any building or was ever engaged in such work. 46. Thus, it prima facie appears that the classification as „Architect‟ was only for the purpose of coverage, to get work orders for Interior decoration from “JUSCO”. 17 47. The petitioner‟s firm being engaged in interior decoration which included minor civil work was thus clearly not covered under the Act and thus not liable, if no deduction was made under the said head in respect of any employee. 48. The establishment of the petitioner is thus not covered under the act for the observations made above and is also thus not liable under the act as held vide the order impugned. 49. The order dated 26th September, 2022 passed by the respondent Regional Provident Fund Commissioner-II, being not in accordance with the provisions of Act is bad in law and thus quashed and set aside. 50. WPA 28825 of 2022 is allowed. 51. Applications, if any, connected thereto stand disposed of consequently. 52. Interim order, if any, stands vacated. 53. 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.)