Shree Chandrashekhar J.

1. Marwari Kanwar Sangh, the appellant, which is a trust registered under the Bihar Hindu Religious Trust Act 1950 has challenged the writ Court's order dated 2nd September 2016 by which the challenge laid by the appellant to the order dated 24th December 1997 passed under section 7A of The Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (in short, Provident Funds Act), order dated 1st July 1998 passed by the Employees' Provident Fund Appellate Tribunal and the order dated 13th October 2010 passed by the Assistant Provident Fund Commissioner, Ranchi has been rejected.

2. The order dated 8th January 1998 has been passed by the Assistant Provident Fund Commissioner in Case Nos. 121/94 and 214/95 which were initiated after issuing notice dated 27th June 1994. This order has been passed pursuant to an order passed by the Patna High Court setting aside the order dated 7th November 1994 passed under section 7A of the Provident Funds Act.

3. The specific case pleaded by the appellant before the Assistant Provident Fund Commissioner was that (i) there has never been 20 or more than 20 employees employed on or before 6th August 1993 (ii) few employees are engaged on part-time basis who do not fall under the definition of employee and (iii) the establishment is a Swayam Sevi and charitable trust which does not fall under the category of society or association.

4. The Assistant Provident Fund Commissioner has held that the appellant is liable to make employees' provident fund contributions. The order dated 8th January 1998 was challenged by the appellant before the Appellate Tribunal in Case No. ATA/3(5)98. Before the Appellate Tribunal, the appellant raised a contention that its establishment is a Dharamshala which has not been notified by the Central Government under section (1)(3) (b) of the Provident Funds Act. The Appellate Tribunal did not accept this proposition and held that establishment of the appellant is covered under the Provident Funds Act. On the question of temporary employees engaged by the appellant, the Appellate Tribunal referred to the amendment in para-26 of the Provident Funds Scheme, 1952 to indicate that the requirement of minimum working days for becoming a member of a scheme has been deleted. The Appellate Tribunal has therefore held that the distinction between a temporary and a permanent employee has now become immaterial. The Appellate Tribunal has referred to the inquiry report of the Enforcement Officer and the Deputy Labour Commissioner to agree with the order dated 8 th January 1998 that the appellate has employed 20 or more persons.

5. The aforesaid orders were challenged by the appellant in W.P.(L) No. 2283 of 2011 which has been dismissed by the writ Court holding that establishment of the appellant shall fall under the category of hotel.

6. The writ Court has held as under:

“17. This Court is, therefore, persuaded to take a view which advances a broader construction of the provisions of the beneficial legislation like EPF Act in context of undisputed finding of fact recorded in respect of activities carried out by the petitioner organisation by providing lodging as well as fooding facilities by charging an amount and not for free from the general public, though it has been constituted as 'Trust' under the provisions of Bihar Hindu Religious Trust Act, 1950.

18. The learned Tribunal in its impugned order has also taken note of the fact that institutions providing boarding and lodging facilities to pilgrims or tourists at a religious place are called Dharamshala which provide accommodation in exchange for a decent amount although against a receipt naming it as a 'donation'. Petitioners are providing food against pre-paid coupons or against cash, may be concessional as they call it. Its activity is therefore quite secular and economic and the services provided by these Dharamshala are also being provided by commercial establishment. It has also referred to the Trust administering Tirupati Balaji Temple which is doing economic activity in relation to sweet manufacturing establishment. ”

7. The aforesaid findings by the writ Court have been challenged on the ground that the appellant which has been recognized as a charitable trust under section 12A and granted exemption certificate under section 80G of the Income Tax Act cannot be put under the category of hotel merely because it has been providing food and lodging to pilgrims during Shrawani Mela.

8. Mr. Indrajit Sinha, the learned counsel for the appellant has referred to the order dated 5th February 2007 passed in W.P.(C) No. 7462 of 2006 to submit that the writ Court has held that establishment of the appellant falls under domestic category and the levy of commercial charges by the Jharkhand State Electricity Board was not approved by this Court. It is further submitted that status of the appellant as a charitable trust has been recognized by the writ Court in W.P.(T) No. 2716 of 2006 in which the writ Court held that the establishment of the appellant is Dharamshala, which is exempted from payment of holding tax.

9. In the aforesaid background, the contention raised is that registration of the appellant under the Bihar Hindu Charitable Trust Act 1950 which has been recognized by the statutory authorities must be held binding on the Provident Fund authorities.

10. Mr. Indrajit Sinha, the learned counsel for the appellant has referred to the definition of establishment under sub-section 6 to section 2 of the Bihar Shops and Establishment Act to submit that the appellant which is not a commercial establishment would fall under the exemption clause.

11. Sub-section 6 to section 2 which reads as under:

2(6): “establishment” means an establishment which carries on any business, trade or profession or any work in connection with, or incidental or ancillary to any business, trade or profession and includes —

(i) administrative or clerical service appertaining to such establishment;

(ii) a shop, restaurant, residential hotel, eating house, theatre or any place of public amusement or entertainment; and 2 [a society Registered under Societies Registration Act,1860 (xxi of 1860) charitable or other trust, whether registered or not which carries on any business, trade or profession or work in connection with or incidental or ancillary there to, journalistic establishments, contractors or auditors establishments, educational or other institutions run for private gain and premises in which business of banking, insurance, stocks and shares brokerage or produce exchange is carried on.

(iii) such other establishment as the State Government may, by notification, declare to be an establishment to which the Act applies; but does not include a ‘motor transport undertaking’ as defined in clause (g) of section 2 of the Motor Transport Workers Act, 1961 (27 of 1961)]

12. To lay support to the aforesaid submission, the learned counsel for the appellant has relied on the judgment in “L.N.Gadodia and Sons and Anothers v. Regional Provident Fund Commissioner.” (2011) 13 SCC 517 [LQ/SC/2011/1300] wherein the Hon'ble Supreme Court has held as under:

21. As the Preamble of the Provident Funds Act states, it is “an act to provide for the institution of provident funds, pension fund and deposit-linked insurance fund for employees in factories and other establishments”. The term “factory” is defined under Section 2(g) of the Act, however, there is no definition of an “establishment” or a “commercial establishment” in the statute. Inasmuch as the petitioners are entities situated in Delhi, we may profitably rely upon the definitions of “establishment” and “commercial establishment” under the Delhi Shops and Establishments Act, 1954. The definition of “establishment” is available in Section 2(9) and that of “commercial establishment” in Section 2(5) thereof. These two definitions read as follows:

“2. (5) ‘commercial establishment’ means any premises wherein any trade, business or profession or any work in connection with, or incidental or ancillary thereto, is carried on and includes a society registered under the Societies Registration Act, 1860 (21 of 1860) and charitable or other trust, whether registered or not, which carries on any business, trade or profession or work in connection with or incidental or ancillary thereto, journalistic and printing establishments, contractors and auditors establishments, quarries and mines not governed by the Mines Act, 1952 (53 of 1952), educational or other institutions run for private gain and premises in which business of banking, insurance, stocks and shares, brokerage or produce exchange is carried on, but does not include a shop or a factory registered under the Factories Act, 1948 (63 of 1948), or theatres, cinemas, restaurants, eating houses, residential hotels, clubs or other places of public amusement or entertainment;

(9) ‘establishment’ means a shop, a commercial establishment, residential hotel, restaurant, eating house, theatre or other places of public amusement or entertainment to which this Act applies and includes such other establishments as Government may, by notification in the Official Gazette, declare to be an establishment for the purpose of this Act;”

13. Per contra, Mr. P.A.S. Pati, the learned counsel for the respondent-EPF has contended that the writ Court by an elaborate order has affirmed the concurrent findings of fact recorded by the Assistant Provident Fund Commissioner and the Provident Fund Appellate Tribunal. Therefore, in exercise of the powers under the Letters Patent this Court may not interfere with the writ Court's order. It is further submitted that whether or not the appellant has engaged 20 or more employees is a question of fact which upon inquiry has been found against the appellant, notwithstanding the stand taken by the appellant that few of them were engaged on temporary or part-time basis. The learned counsel for the respondent-EPF has relied on the judgment in “Regional Provident Fund Commissioner v. Tibetans Children's Village, Dharamshala Cant.” (2017) SCC Online HP 2421 to fortify his submissions.

14. In “Bangalore Turf Club Limited v. Regional Director Employees State Insurance Corporation.” (2014) 9 SCC 657 [LQ/SC/2014/764] the Hon'ble Supreme Court has held as under:

34. In the absence of any definition as provided in the ESI Act, this Court may look into its dictionary meaning for guidance or as an aid of construction of the term “establishment”. Dictionaries do define the meaning of a word as understood in common parlance:

34.1. According to Black's Law Dictionary, 7th Edn. (1999), the term “establishment” means, inter alia: “establishment. — n. …

(2) An institution or place of business.”

34.2. According to Words and Phrases, Permanent Edn., Vol. 15, the term “establishment” has been held to mean, inter alia, the following: “An establishment means a permanent commercial organisation or a manufacturing establishment. “An establishment is the place where one is permanently fixed for residence or business such as an office or place of business with its fixtures.

34.3. According to Corpus Juris Secundum, Vol. LXXX, the term “establishment” has been explained as follows: “Establishment.— … More specifically, a fixed place where business is conducted, or a place where the public is invited to come and have its work done; an institution or place of business with its fixtures and organised staff; any office or place of business, with its fixtures, the place in which one is permanently fixed for residence or business; a permanent commercial organisation, as a manufacturing establishment; the place of business or residence with grounds, fixtures, equipage, etc., with which one is fitted out; also that which serves for the carrying on of a business.…”

35. Therefore, it can be simply stated that an “establishment” is a term which can have a wide meaning. It would be any place where business is conducted, or in other words, it would be any place of business. Now the question arises whether a “race club” is in the nature of a place where business is conducted. To answer the same, the activities that are undertaken by the appellant Turf Club require to be noticed.

37. The term “establishment” would mean the place for transacting any business, trade or profession or work connected with or incidental or ancillary thereto. It is true that the definition in dictionaries is the conventional definition attributed to trade or commerce, but it cannot be wholly valid for the purpose of constructing social welfare legislation in a modern welfare State. The test of finding out whether professional activity falls within the meaning of the expression “establishment” is whether the activity is systematically and habitually undertaken for production or distribution of the goods or services to the community with the help of employees in the manner of a trade or business in such an undertaking. If a systematic economic or commercial activity is carried on in the premises, it would follow that the establishment at which such an activity is carried on is a “shop”. This Court, in Hyderabad Race Club case [ESI Corpn. v. Hyderabad Race Club, (2004) 6 SCC 191 [LQ/SC/2004/781] : 2004 SCC (L&S) 855] , keeping in view the systematic commercial activity carried on by the club has held that the race club is an establishment within the meaning of the said expression as used in the notification issued under Section 1(5) of the ESI Act. Therefore, in our considered view, the view expressed by this Court is in consonance with the provisions of the ESI Act and also settled legal principles. Therefore, the said decision does not require reconsideration.

15. The Assistant Provident Fund Commissioner has referred to the inquiry conducted by the Enforcement Officer who found that as many as 32 employees were engaged by the appellant but not shown in the register maintained by the appellant. In the order dated 8th January 1998, the Assistant Provident Fund Commissioner has given a complete description of the employees with their names etc. who were employed by the appellant. The Assistant Provident Fund Commissioner has also found that the appellant does not provide any service free of cost rather on payment. It has further been found that it is running a Bhojnalya for providing food to the visitors on payment. The Appellate Tribunal has also taken notice of the fact that the appellant was not paying provident fund contributions in relation to Safaiwala(sweepers). In these facts, the plea set up by the appellant that its registration under the Bihar Religious Trust Act 1950 and exemption granted under the Income Tax Act shall bring its establishment under the exempted category cannot be accepted. May be the appellant has been granted exemption under the Income Tax Act but, as on the date of inquiry, it was found running an establishment which had employed more than 20 persons and it was providing food and lodging on payment. It is well settled that the writ Court shall not enter into a dispute sought to be raised by the petitioner without any basis. Moreover, the findings of fact recorded by the authorities are generally accepted by the Court. It was the appellant which itself raised a dispute regarding engagement of temporary and part-time employees which, on inquiry, has been found against the appellant. The writ Court has considered every aspect of the matter and by a well-reasoned order accepted the findings recorded by the Provident Fund authorities. After having gone through materials on record and the orders passed by the competent authorities, we also do not see any reason to interfere with the writ Court's order. In our opinion, the authorities have rightly held that the establishment of the appellant is liable to pay provident fund contributions under the Provident Funds Act.

16. Accordingly, LPA No. 537 of 2016 is dismissed.

17. Consequently, I.A. Nos. 3642 of 2021 and 8690 of 2022 stand disposed of.