BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24/01/2011 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN Writ Petition (MD).No.688 of 2011 & M.P.(MD).No.1 of 2011 Union Of India, Rep. by its General Manager, M/s.Heavy Alloy Penetrator Project (HAPP), Minsitry of Defence, Tiruchirappalli-25, Trichy District. .. Petitioner Vs. 1.The Registrar, Employees Provident Fund Appellate Tribunal, Scope Minar, Core II 4th Floor, Laxmi Nagar District Centre, Laxmi Nagar, New Delhi-110 092. 2.The Assistant Provident Fund Commissioner, Employees Provident Fund Organisation, Sub Regional Office, PB No.588, Sree Complex, 'D' Block, No.18, Madurai Road, Tiruchirappalli-8. .. Respondents Prayer Writ petition is filed under Article 226 of the Constitution of India to issue a writ of Certiorari to call for the records on the file of the first respondent in connection with the impugned order passed in ATA NO.637(13)2002, dated 19.10.2010 and the order passed by the second respondent in B4/TN/TR/76172/SRO-TRY/2008-2009, dated 22.07.2008 and quash the both as illegal and ultravires. !For Petitioner ... Mr.G.Thalamutharasu ^For Respondents... Mr.V.S.Karthik :ORDER
By consent the writ petition itself is taken up for disposal.
2. Heard Mr.G.Thalamutharasu, the learned counsel for the petitioner and
Mr.V.S.Karthik, the learned counsel for the respondents.
3. In this petition, the petitioner challenged the order of the original
authority, the second respondent, the Assistant Provident Fund Commissioner,
Tiruchirappalli, passed in B4/TN/TR/76172/SRO-TRY/2008-2009, dated 22.07.2008
and the order of the appellate authority, the first respondent, passed in ATA
NO.637(13)2002, dated 19.10.2010.
4. The petitioner is an Establishment under the Union of India called as
M/s.Heavy Alloy Penetrator Project (in short referred as HAPP), which is a
Central Government Industrial Establishment under the Ministry of Defence,
primarily involved in manufacture of defence components. The main job of the
unit is producing arms and ammunition and supplying it to the Ministry of
Defence. According to them, for certain sundry works such as maintenance of
building/premises, road maintenance work in township and cutting wild growth
etc., are entrusted to independent contractors. Accordingly, contracts are
awarded for specific period and the payments are made to the contractors for the
satisfactory completion of the job done by them and their wages are paid by the
contractor, as per the minimum wages fixed by the Tamil Nadu Government fixed
from time to time. The contractors are also advised to adhere to all the
statutory requirements.
5. While that being so, the petitioner has been allotted a code number by
the second respondent for the charges of making compliance with the various
provisions of the Employees Provident Funds and Miscellaneous Provisions Act,
1952 (hereinafter referred as the ‘Act’). Thereafter, the establishment has sent
a detailed explanation to the second respondent on 23.01.2008 requesting to drop
all the proceedings initiated against it under the Act and revoke the letter of
the second respondent dated 05.12.2007. Subsequently, the establishment was
called for attending the proceedings initiated under Section 7(A) of the Act.
Since the second respondent was proceeding further without going into the
application of the Act, they have filed a writ petition in W.P.(MD).No.4380 of
2008 before this Court to quash the proceeding initiated against the petitioner.
This Court by its judgment, dated 07.05.2008, has disposed of the said petition
with a direction to the second respondent that the question of applicability
should be considered before proceeding further. Based on the said direction, the
second respondent has conducted a detailed enquiry and the establishment has
also filed a written submission and raised objections in regard to the
application of the Act vide his letter, dated 23.01.2008.
6. The main queries raised by the petitioner are as follows;
(i) The notification issued by Ministry of Labour vide S.O.746, dated
22.03.2001 is applicable to an establishment engaged in rendering cleaning and
sweeping services. HAPP, being a defence installation, engaged in
manufacturing/production of arms and ammunition. In fact HAPP is availing
certain sundry services of cleaning and sweeping etc., through contractors.
(ii) Section 16(1)(b) makes it very clear that the Act shall not apply to
“any other establishment belonging to or under the control of the Central
Government or 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. HAPP being a Central Government establishment, the provisions of EPF &
MP Act does not apply as per Section 16(1)(b).
(iii) HAPP, being a Government Establishment is not specified under the
Schedule I and hence, if it is to be brought under the ambit of EPF Act a
separate Notification has to be issued by the Central Government under Clause
(b) of Sub Section (3) of Section 1. Till issue of such notification, allotting
of code Head to HAPP is not in order.
iv) As per letter of RPF Commissioner Letter No.B6/TN/TR/Coord Coverage of
Contractors/04, dated 27.01.2004 EPF organization was exploring the feasibility
of bringing the contractor establishment rendering services at Central/State
Government Departments, under the purview of the Act.
7. All the above objections are overruled and the original authority, the
second respondent passed the impugned order on 22.07.2008 by virtue of power
conferred under Section 7A of the Act that Employees’ Provident Funds and
Miscellaneous Provisions Act, 1952 stating that it is applicable to M/s.HAPP,
Trichy with effect from 01.04.2001 and further directed the employer to comply
with the provisions of the Act and the Schemes framed thereunder with effect
from 01.04.2001.
8. Aggrieved by the order of the original authority, the petitioner
preferred an appeal to the first respondent, the appellate authority, in ATA
No.637/13/02. The appellate authority, the Tribunal in its order, dated
19.10.2010, confirmed the order of the second respondent, in the absence of the
counsel representing the Establishment and no opportunity was given to put forth
the petitioner’s case and the Tribunal simply relying on the appeal petition and
giving weightage to the reply of the second respondent, confirmed the order. The
operative portion of the order is as follows;-
“Thus in view of the discussion held above, no infirmity is noticed in the
order of the EPF Authority. Hence, ordered, the appeal is dismissed. Copy of
order be sent to the parties and the file be consigned to record rood.”
9. The learned counsel for the petitioner in his submissions has
strenuously contended that M/s.HAPP being a Central Government establishment is
not specified under the schedule-I and unless a separate notification issued by
the Central Government under clause (b) of Sub Section (3) of Section 1 of the
Act, the EPF Act is not at all applicable to M/s.HAPP Establishment. Therefore,
the proceedings initiated under Section 17 of the Act cannot be sustained. He
has further contended that the petitioner is exempted under Section 16(1)(b) of
the EPF Act, as it being a central Government establishment under the control of
the Central Government. Therefore, they are not entitled to the benefit of EPF
Act and the petitioner is governed under GPF Scheme and other pension schemes
applicable to the Central Government Establishments.
10. On the other hand, the learned counsel for the respondents by pointing
out the provisions of Section 15 of the Employees’ Provident Funds Appellate
Tribunal (Procedure) Rules, 1997 would contend that where on the date fixed for
hearing on the appeal or on any other date to which such hearing may be
adjourned, the appellant does not appeal when the appeal is called for hearing,
the Tribunal may, in its discretion either dismiss the appeal for default or
hear and decide it on merit. In that event, the only course available to the
petitioner is by filing a proper review before the authority concerned. He would
further contend that the petitioner has already allotted a code number and
thereafter, there was no contribution by the petitioner and therefore, the
action under Section 17(A) of the Act has been initiated and it is nothing wrong
on the part of the respondents in initiating the proceedings in view of the
allotment of the code number.
11. I have heard the learned counsel on either side and perused the
material documents given in the typed set of papers and the relevant provisions
of the Act and the Rules.
12. It is seen that the petitioner namely M/s.HAPP is a Central Government
establishment under the Ministry of Defence primarily involved in manufacture of
Defence components and in the production of arms and ammunition and supplying it
to the defence. It is not in dispute that in respect of certain works, contract
has been awarded for specific period and the payments are made to the contractor
for the satisfactory completion of the job done by them. Wages for the contract
workers are paid by the contractor as per the Minimum Wages fixed by Tamil Nadu
Government from time to time. It is seen that the petitioner has been allotted a
card number under the Act by the second respondent on 05.12.2007. Though certain
objections were filed for the allotment of the said card number, the same was
not challenged by the petitioner in any of the proceedings. Therefore, the
allotment of the card number has become final and in the absence of any
challenge earlier, the petitioner has approached this Court in W.P.(MD) No.4380
of 2008 and this Court after hearing the counsel on either side, disposed of
the matter by observing that the grievance of the petitioner is that even though
a question relating to the applicability of the Act has been raised, the
respondent is proceeding in the matter without considering the question of
applicability and it goes without saying that before passing any order, the
respondent is required to consider all the objections raised by the petitioner.
Thereafter, the petitioner on 23.01.2008 filed their objections. Based on the
above objections, the original authority namely, the Assistant Provident Fund
Commissioner, Employees Provident Fund Organisation, Tiruchy has proceeded and
ultimately holding that as per the terms and conditions of a tender notice which
is part and parcel of the work order point number 23(g) and (h), the contractor
is required to make payment of EPF and also required to submit an undertaking in
favour of the GM, M/s.HAPP every month to the effect that he has paid wages to
the workers and complied with the provisions of the Act. Whereas, M/s.HAPP,
Trichy has not insisted the same from the contribution until 04.09.2006 and
only from the said date, all the contract employees are covered under the Act
under the Contractor’s Code number. Ultimately, it was held that by virtue of
power conferred on the authority under Section 7A of the Act that the dispute
raised by M/s.HAPP, Trichy that Employees Provident Fund and Miscellaneous
Provisions Act, 1952 is applicable to M/s.HAPP, Trichy with effect from
01.04.2001. Accordingly, the original authority directed the employer to comply
with the provisions of the Act and the Schemes framed thereunder with effect
from 01.04.2001 as per the direction contained in Coverage memo
No.Enf./B4/TN/TR/76172/SRO-TRY/07, dated 05.12.2007 and dispose of the matter as
per the direction of this Court.
13. Aggrieved by the order of the original authority, the petitioner
preferred an appeal under proceedings in ATA(13)02, wherein the appellate
authority has taken up the matter on the date fixed for hearing and on
19.10.2010, disposed of the appeal on merits. It is necessary to reproduce
Paragraph 4 of the appeal order hereunder;
“4. No argument was advanced by the appellant and the matter was reserved
for order as per Rule 15 after hearing the counsel for respondent. The main
ground taken in the appeal memo is that the persons engaged by the contractor
are not the employees of the appellant and there is no identification of those
persons.”
Then the appellate authority proceeded further and decided the matter on merits
and confirmed the order of the original authority.
14. A preliminary objection has been raised by the respondents on the
maintainability of the writ petition, as the remedy open to the petitioner is
only moving the authority concerned by way of a reviews since the order was made
in the absence of the appellant in view of Rule 15 of the Employees’ Provident
Funds Appellate Tribunal (Procedure) Rules, 1997, which reads as follows;
Action on appeal for appellant’s default -(1) Where on the date fixed for
hearing of the appeal or on any other date to which such hearing may be
adjourned, the appellant does not appeal when the appeal is called for hearing,
the Tribunal may, in its discretion either dismiss the appeal for default or
hear and decide it on merit.
(2) Where an appeal has been dismissed for default and the appellant files
an appeal within thirty days from the date of dismissal and satisfied the
Tribunal that there was sufficient cause for his non-appearance when the appeal
was called for hearing, the Tribunal shall make an order setting aside the order
dismissing the appeal and restore the same;
Provided, however, where the case was disposed of on the merits the
decision shall not be re-opened except by way of review.
15. It is the ordained principle and consistent legal position that if an
effective and efficacious remedy is available, the High Court would not normally
exercise its jurisdiction and therefore, it has been held in several decisions
that the writ petition will be entertained only on the following contingencies,
namely, if the writ petition is filed for enforcement of any of the fundamental
rights, or when there has been violation of principles of natural justice or
where the order of proceedings are wholly without jurisdiction or the vires of
an Act is challenged. There is plethora of decisions held by the Hon’ble Supreme
Court in this regard and one such case is reported in (1998) 8 SCC 1 (WHIRLPOOL
CORPORATION V. REGISTRAR OF TRADE MARKS). In the absence of any contingency as
mentioned above and when an effective and efficacious remedy is available, this
writ petition cannot be entertained and it goes without saying that the
petitioner has to avail the alternative remedy provided under the Act. In the
case on hand, when there is an effective remedy available in the Rules itself,
on the contrary, the petitioner has chosen to move this Court under Article 226
of the Constitution of India. As already pointed out, when the petitioner is
having an effective alternative remedy, this Court will not exercise its power
under Article 226 of the Constitution of India. The petitioner, instead of
asking the authorities to re-open the case by way of a review, has filed this
writ petition, which is prematured, misconceived and misconstrued. Therefore,
the writ petition is rejected and the same is dismissed. However, the petitioner
is at liberty to move the authority concerned by making an appropriate review
under Rule 15 of the Employees’ Provident Funds Appellate Tribunal (Procedure)
Rules, 1997, within a period of four weeks from the date of receipt of a copy of
this Order. If such a review is made, it is for the reviewing authority to
consider the same in accordance with law and on merits and pass appropriate
orders. No costs. Consequently, connected miscellaneous petition is closed.
jikr
To
1.The Registrar,
Employees Provident Fund Appellate Tribunal,
Scope Minar, Core II 4th Floor,
Laxmi Nagar District Centre,
Laxmi Nagar,
New Delhi-110 092.
2.The Assistant Provident Fund Commissioner,
Employees Provident Fund Organisation,
Sub Regional Office, PB No.588,
Sree Complex, ‘D’ Block,
No.18, Madurai Road,
Tiruchirappalli-8.