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SCA/5039/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5039 of 2010
With
SPECIAL
CIVIL APPLICATION No. 5099 of 2010
=========================================================
ARUN
HARILAL KATBAMNA & 5 - Petitioner(s)
Versus
EXECUTIVE
ENGINEER & 1 - Respondent(s)
=========================================================
Appearance
:
MR
TR MISHRA for
Petitioner(s) : 1 - 6.
MR HS MUNSHAW for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 23/07/2010
ORAL
ORDER
1. The
petitioners have prayed as under:
[B] YOUR
LORDSHIP may be pleased to issue aw rit in the nature of certiorary
or in the nature of mandamus and/or any other appropriate writ, order
or direction quashing and setting aside the impugned circular dated
8th April, 2010 (Annexure-D tot his petition) being
arbitrary, discriminatory, violative of Articles 14 and 16 of the
Constitution of India and also be further pleased to declare and hold
the impugned action of stopping the provident fund contribution as
illegal and against the provisions of Industrial Disputes Act, 1947.
[C] YOUR
LORDSHIP may be pleased to issue a direction or order restraining the
respondents, their agents and servants from implementing, executing
and operating the said circular dated 8thApril 2010, Public Health
Division1, Juangadh (Annexure-D to this petition).
2. Mr.
Mishra, learned Advocate for the petitioners has relied upon a
judgement oft his Court dated 15th March 2010 passed in
Special Civil Application No.10815 of 2009, which reads as under:
Heard
learned advocates appearing on behalf of respective parties.
The
petitioner has challenged the order passed by PF Authority dated 30th
June 2009 under Sec.16(1)(b) of the PF Act.
Learned
advocate Mr. Rathod submitted that there is a CPF Scheme in existence
and casual labourers who are appointed after 30th November
1994 are not entitled to join CPF Scheme. He submitted that order
passed by PF Authority dated 30th June 2009 wherein it is
held that though the Board is excluded establishment under provisions
of EPF Act, inspite of that, the Board is required to enroll all
employees as PF members including daily rated employee. He submitted
that this direction is contrary to provisions of Sec.16(1)(b) of PF
Act. He submitted that according to aforesaid provision, the Board is
under the control of State Government and having contributory
provident fund scheme for his employees, therefore, PF Authority has
no jurisdiction to issue such kind of direction in respect of daily
rated employees and casual employees those who have been appointed
subsequent to 30th November 1994. Therefo9re, PF Authority
has committed gross error.
Learned
advocate Mr. Pathak appearing on behalf of Union submitted that SCA
3481 of 2008 was filed by respondent No.2 Union before this Court
wherein on 18th February 2009, direction has been issued
against Respondent No.2 PF Authority shall initiate inquiry in
connection with the grievance of the person concern in that petition.
Such inquiry will be initiated on or before 15th March
2009 and after hearing representative of the person concern in that
petition, respondent No.1 – Board to pass appropriate order or
take appropriate steps to cover employees those who are not covered
by CPF Scheme appointed subsequent to 30th November 1994.
He
submitted that in respect of aforesaid direction, further order has
been passed by this Court in SCA No.1183 of 2008 on 20th
February 2009 where following order is passed :
“2. Mr.Niral
R.Mehta, learned advocate for respondent No.2 for P.F.Authorties
submitted that so far as permanent employees of respondent No.1-GWS&S
Board are concerned, they would be covered by Board’s P.F. Scheme
applicable to the Board and its employees and the Board as well as
its permanent employees stand excluded / exempted under the
provisions of Section 16 of the Act. However, so far as casual and
non-permanent employees working in Board, who are not considered as
Board’s employees by the Board, are concerned, they, probably, might
not have been covered by the Board under its scheme / rules for P.F.
and that therefore, their cases may have to be examined by the
respondent No.2. Mr.Rathod for respondent No.1-Board has not disputed
that there may be some persons working in the Board on temporary or
causal or ad-hoc basis or with the contractors who are not the
employees of the Board and thus are not eligible to the benefits at
par with Board’s regular and permanent employees and are not covered
under the board’s scheme / rules for P.F.
3. Mr.Pathak
learned advocate appearing on behalf of the petitioner submitted that
persons concerned in this petition are continued in the respondent
No.1-Board and are not being treated as permanent employees of the
Board but they have been extended the benefit of G.R. Dated
17.10.1988. The grievance made by Mr.Pathak is that persons concerned
in the petition are, on one hand, not being treated as regular and
permanent employees of respondent No.1 -Board and therefore, benefit
of the PF scheme prevailing in the Board is not being extended to
them and on the other hand the Provident Fund Department also does
not cover such employees under the Scheme envisaged under the
provisions of the Act and/or does not require the Board to cover such
employees at-least under the scheme under the Act.
4. Mr.Pathak
submitted that in view of the said situation, the employees are left
high and dry and without benefit of P.F.
5. Mr.Mehta
has further submitted that in light of such submission, the
department will conduct necessary inquiry, after issuing appropriate
notices and hearing the concerned and interested parties and
thereafter, appropriate directions will be issued.
6. In
this view of the matter, it is directed that the respondent No.2
shall initiate inquiry in connection with the grievance of the
persons concerned in this petition. Such inquiry will be initiated on
or before 30th March, 2009 (i.e. an appropriate notices
will be issued to the concerned parties on or before 30th
March, 2009). After hearing the representative/s of the persons
concerned in the petition and the respondent No.1-Board, the
respondent No.2 shall endeavor to complete the investigation /
inquiry preferably within a period of 3 months i.e. on or before
30th June, 2009. If as a result of the inquiry, it is
found that any default has been committed and the employees are
required to be covered under the provisions of the Act, then
appropriate steps will be taken by respondent No.2, immediately and
without any delay.
7. The
respondent No.1-Board shall co-operate in the inquiry and all
necessary and relevant documents which may be required or demanded by
the respondent no.2 may be supplied by the respondent No.1.
8. So
far as the relief/s prayed for in Para 18(D) and 18(E) is/are
concerned, it is clarified that it would be open to and permissible
for the concerned persons to take out appropriate proceedings before
appropriate forum/Court in accordance with and as may be permissible
in law, and the said demands have not been examined by this Court, at
this stage in this petition, on merits.
9. With
the aforesaid observations and clarifications, the petition is
disposed of. Direct service is permitted.”
Thereafter,
PF Authority has called the petitioner on 22nd April 2009
to remain present before PF Authority. The petitioner Board has made
their submission Annexure ‘E’ – Page 26 to 29 dated 3rd
June 2009. Thereafter, order has been passed by PF Authority on 30th
June 2009 Annexure ‘F’ Page 30.
I
have considered submissions made by all learned advocates appearing
on behalf of respective parties. Section 16 of PF Act not to apply to
certain establishments. Section 16(1) of PF Act is quoted as under :
“Sec.16
: Act not to apply to
certain establishments. – [(1)
This Act shall not apply –
(a) to
any establishment registered under the Co-operative Societies Act,
1912 (2 of 1912), or under any other law for the time being in force
in any State relating to co-operative societies, employing less than
fifty persons and working without the aid of power; or
[(b)
to any other establishment belonging to or under the control of the
Central Government or a State Government and whose employees are
entitled to the benefit of contributory provident fund or old age
pension in accordance with any scheme or rule framed by the Central
Government or the State Government governing such benefits; or
(c)
to any other establishment set up under any Central, Provincial or
State Act and whose employees are entitled to the benefits of
contributory provident fund or old age pension in accordance with any
scheme or rule framed under that Act governing such benefits; ”
Looking
to aforesaid Section, the Act is not applicable if the establishment
belongs under the control of State Government, but, PF Authority has
considered intention of the Act is very clear that only those State
Government Establishments are excluded whose employees are in
enjoyment of benefits in the nature of PF, Pension, Gratuity and such
benefit should not be less favourable to such employees than the
benefits provided under the Act. The definition of ’employee’ given
under Sec.2(f) as any person who is employed for wages in any kind
of work and who gets, wages directly and indirectly from the employer
and such employees is entitled and required to become a member of the
funds under Sec.6 of the PF Scheme, 1952. Therefore, considering
relevant Sec.16(1)(b) and Sec.2(f) definition of employee and Para 26
of the Employees’ Provident Funds and Miscellaneous Provisions Act,
1952 which gives clear verdict that employees irrespective of its
cadre or kind of appointment is required to enroll as member of P.F.,
therefore, accordingly, though petitioner Board excluded
establishment, but, it requires to enroll all kinds of employees as
PF members including daily rated employees. Those who have been
recruited or appointed or engaged subsequent to 30th
November 1994. Therefore, according to my opinion, PF Authority has
rightly examined the issue in light of directions issued by this
Court as referred above and rightly considered Sec.16(1)(b) being an
excluded establishment, but, so far daily rated employees/ casual
employees or any employees appointed subsequent to 30th
November 1994 are concerned, they are not covered by scheme which
implemented by petitioner Board, because, it is very clear stand
taken by petitioner that casual labourers who are appointed
subsequent to 30th November 1994 are not entitled to join
CPF Scheme, therefore, such employees those who are not entitled to
join CPF Scheme of board then naturally, they are covered by PF Act
and also satisfied definition of ’employee’ under Sec.2(f) of PF Act.
Therefore, contentions raised by learned advocate Mr. Mehul Rathod
cannot be accepted. The order passed by PF Authority is perfectly in
the interest of justice, otherwise, casual employees those who are
recruited or appointed or engaged after 30th November 1994
cannot be joined in CPF Scheme prevailing in Board which amounts to a
discrimination between two class of employees and PF protection is
not made available, therefore, to that extent, order has been passed
by PF Authority being an implementation of beneficial legislation.
For that, according to my opinion, PF Authority has not committed any
error which requires interference by this Court while exercising the
powers under Article 227 of the Constitution of India.
Hence,
there is no substance in present petition, accordingly, present
petition is dismissed.”
3. Hence
Rule. The respondent will follow the aforesaid decision in its true
spirit.
[K.S.
JHAVERI, J.]
ar
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