{"id":84441,"date":"2011-01-24T00:00:00","date_gmt":"2011-01-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-vs-the-registrar-on-24-january-2011"},"modified":"2018-01-23T15:05:10","modified_gmt":"2018-01-23T09:35:10","slug":"union-of-india-vs-the-registrar-on-24-january-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-vs-the-registrar-on-24-january-2011","title":{"rendered":"Union Of India vs The Registrar on 24 January, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
Union Of India vs The Registrar on 24 January, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 24\/01\/2011\n\nCORAM\nTHE HONOURABLE MR.JUSTICE V.DHANAPALAN\n\nWrit Petition (MD).No.688 of 2011\n &\nM.P.(MD).No.1 of 2011\n\nUnion Of India,\nRep. by its General Manager,\nM\/s.Heavy Alloy Penetrator Project (HAPP),\nMinsitry of Defence,\nTiruchirappalli-25,\nTrichy District.\t\t\t.. Petitioner\n\nVs.\n\n1.The Registrar,\n  Employees Provident Fund Appellate Tribunal,\n  Scope Minar, Core II 4th Floor,\n  Laxmi Nagar District Centre,\n  Laxmi Nagar,\n  New Delhi-110 092.\n\n2.The Assistant Provident Fund Commissioner,\n  Employees Provident Fund Organisation,\n  Sub Regional Office, PB No.588,\n  Sree Complex, 'D' Block,\n  No.18, Madurai Road,\n  Tiruchirappalli-8.\t\t\t..  Respondents\n\nPrayer\n\nWrit petition is filed under Article 226 of the Constitution of India\nto issue a writ of Certiorari to call for the records on the file of the first\nrespondent in connection with the impugned order passed in ATA NO.637(13)2002,\ndated 19.10.2010 and the order passed by the second respondent in\nB4\/TN\/TR\/76172\/SRO-TRY\/2008-2009, dated 22.07.2008 and quash the both as illegal\nand ultravires.\n\n!For Petitioner ...\tMr.G.Thalamutharasu\n^For Respondents...\tMr.V.S.Karthik\n \t\t\t\t  \t\t\t\t\t\t\t\n:ORDER\n<\/pre>\n
\tBy consent the writ petition itself is taken up for disposal.\n<\/p>\n
\t2. Heard Mr.G.Thalamutharasu, the learned counsel for the petitioner and
\nMr.V.S.Karthik, the learned counsel for the respondents.\n<\/p>\n
\t3. In this petition, the petitioner challenged the order of the original
\nauthority, the second respondent, the Assistant Provident Fund Commissioner,
\nTiruchirappalli, passed in B4\/TN\/TR\/76172\/SRO-TRY\/2008-2009, dated 22.07.2008
\nand the order of the appellate authority, the first respondent, passed in ATA
\nNO.637(13)2002, dated 19.10.2010.\n<\/p>\n
\t4. The petitioner is an Establishment under the Union of India called as
\nM\/s.Heavy Alloy Penetrator Project (in short referred as HAPP), which is a
\nCentral Government Industrial Establishment under the Ministry of Defence,
\nprimarily involved in manufacture of defence components. The main job of the
\nunit is producing arms and ammunition and supplying it to the Ministry of
\nDefence. According to them, for certain sundry works such as maintenance of
\nbuilding\/premises, road maintenance work in township and cutting wild growth
\netc., are entrusted to independent contractors. Accordingly, contracts are
\nawarded for specific period and the payments are made to the contractors for the
\nsatisfactory completion of the job done by them and their wages are paid by the
\ncontractor, as per the minimum wages fixed by the Tamil Nadu Government fixed
\nfrom time to time. The contractors are also advised to adhere to all the
\nstatutory requirements.\n<\/p>\n
\t5. While that being so, the petitioner has been allotted a code number by
\nthe second respondent for the charges of making compliance with the various
\nprovisions of the Employees Provident Funds and Miscellaneous Provisions Act,
\n1952 (hereinafter referred as the ‘Act’). Thereafter, the establishment has sent
\na detailed explanation to the second respondent on 23.01.2008 requesting to drop
\nall the proceedings initiated against it under the  Act and revoke the letter of
\nthe second respondent dated 05.12.2007. Subsequently, the establishment was
\ncalled for attending the proceedings initiated under Section 7(A) of the Act.
\nSince the second respondent was proceeding further without going into the
\napplication of the Act, they have filed a writ petition in W.P.(MD).No.4380 of
\n2008 before this Court to quash the proceeding initiated against the petitioner.
\nThis Court by its judgment, dated 07.05.2008, has disposed of the said petition
\nwith a direction to the second respondent that the question of applicability
\nshould be considered before proceeding further. Based on the said direction, the
\nsecond respondent has conducted a detailed enquiry and the establishment has
\nalso filed a written submission and raised objections in regard to the
\napplication of the Act vide his letter, dated 23.01.2008.\n<\/p>\n
\t6. The main queries raised by the petitioner are as follows;\n<\/p>\n
\t(i) The notification issued by Ministry of Labour vide S.O.746, dated
\n22.03.2001 is applicable to an establishment engaged in rendering cleaning and
\nsweeping services. HAPP, being a defence installation, engaged in
\nmanufacturing\/production of arms and ammunition. In fact HAPP is availing
\ncertain sundry services of cleaning and sweeping etc., through contractors.\n<\/p>\n
\t(ii) Section 16(1)(b) makes it very clear that the Act shall not apply to
\n“any other establishment belonging to or under the control of the Central
\nGovernment or State Government and whose employees are entitled to the benefit
\nof Contributory Provident Fund\/ or old age pension in accordance with any scheme
\nor rule framed by the Central Government or the State Government governing such
\nbenefits. HAPP being a Central Government establishment, the provisions of EPF &
\nMP Act does not apply as per Section 16(1)(b).\n<\/p>\n
\t(iii) HAPP, being a Government Establishment is not specified under the
\nSchedule I and hence, if it is to be brought under the ambit of EPF Act a
\nseparate Notification has to be issued by the Central Government under Clause\n<\/p>\n
(b) of Sub Section (3) of Section 1. Till issue of such notification, allotting
\nof code Head to HAPP is not in order.\n<\/p>\n
\tiv) As per letter of RPF Commissioner Letter No.B6\/TN\/TR\/Coord Coverage of
\nContractors\/04, dated 27.01.2004 EPF organization was exploring the feasibility
\nof bringing the contractor establishment rendering services at Central\/State
\nGovernment Departments, under the purview of the Act.\n<\/p>\n
\t7. All the above objections are overruled and the original authority, the
\nsecond respondent passed the impugned order on 22.07.2008 by virtue of power
\nconferred under Section 7A of the Act that Employees’ Provident Funds and
\nMiscellaneous Provisions Act, 1952 stating that it is applicable to M\/s.HAPP,
\nTrichy with effect from 01.04.2001 and further directed the employer to comply
\nwith the provisions of the Act and the Schemes framed thereunder with effect
\nfrom 01.04.2001.\n<\/p>\n
\t8. Aggrieved by the order of the original authority, the petitioner
\npreferred an appeal to the first respondent, the appellate authority, in ATA
\nNo.637\/13\/02. The appellate authority, the Tribunal in its order, dated
\n19.10.2010, confirmed the order of the second respondent, in the absence of the
\ncounsel representing the Establishment and no opportunity was given to put forth
\nthe petitioner’s case and the Tribunal simply relying on the appeal petition and
\ngiving weightage to the reply of the second respondent, confirmed the order. The
\noperative portion of the order is as follows;-\n<\/p>\n
\t“Thus in view of the discussion held above, no infirmity is noticed in the
\norder of the EPF Authority. Hence, ordered, the appeal is dismissed. Copy of
\norder be sent to the parties and the file be consigned to record rood.”\n<\/p>\n
\t9. The learned counsel for the petitioner in his submissions has
\nstrenuously contended that M\/s.HAPP being a Central Government establishment is
\nnot specified under the schedule-I and unless a separate notification issued by
\nthe Central Government under clause (b) of Sub Section (3) of Section 1 of the
\nAct, the EPF Act is not at all applicable to M\/s.HAPP Establishment. Therefore,
\nthe proceedings initiated under Section 17 of the Act cannot be sustained. He
\nhas further contended that the petitioner is exempted under Section 16(1)(b) of
\nthe EPF Act, as it being a central Government establishment under the control of
\nthe Central Government. Therefore, they are not entitled to the benefit of EPF
\nAct and the petitioner is governed under GPF Scheme and other pension schemes
\napplicable to the Central Government Establishments.\n<\/p>\n
\t10. On the other hand, the learned counsel for the respondents by pointing
\nout the provisions of Section 15 of the Employees’ Provident Funds Appellate
\nTribunal (Procedure) Rules, 1997 would contend that where on the date fixed for
\nhearing on the appeal or on any other date to which such hearing may be
\nadjourned, the appellant does not appeal when the appeal is called for hearing,
\nthe Tribunal may, in its discretion either dismiss the appeal for default or
\nhear and decide it on merit. In that event, the only course available to the
\npetitioner is by filing a proper review before the authority concerned. He would
\nfurther contend that the petitioner has already allotted a code number and
\nthereafter, there was no contribution by the petitioner and therefore, the
\naction under Section 17(A) of the Act has been initiated and it is nothing wrong
\non the part of the respondents in initiating the proceedings in view of the
\nallotment of the code number.\n<\/p>\n
\t11. I have heard the learned counsel on either side and perused the
\nmaterial documents given in the typed set of papers and the relevant provisions
\nof the Act and the Rules.\n<\/p>\n
\t12. It is seen that the petitioner namely M\/s.HAPP is a Central Government
\nestablishment under the Ministry of Defence primarily involved in manufacture of
\nDefence components and in the production of arms and ammunition and supplying it
\nto the defence. It is not in dispute that in respect of certain works, contract
\nhas been awarded for specific period and the payments are made to the contractor
\nfor the satisfactory completion of the job done by them. Wages for the contract
\nworkers are paid by the contractor as per the Minimum Wages fixed by Tamil Nadu
\nGovernment from time to time. It is seen that the petitioner has been allotted a
\ncard number under the Act by the second respondent on 05.12.2007. Though certain
\nobjections were filed for the allotment of the said card number, the same was
\nnot challenged by the petitioner in any of the proceedings. Therefore, the
\nallotment of the card number has become final and in the absence of any
\nchallenge earlier, the petitioner has approached this Court in W.P.(MD) No.4380
\nof 2008 and this Court after hearing the counsel on either side,  disposed of
\nthe matter by observing that the grievance of the petitioner is that even though
\na question relating to the applicability of the Act has been raised, the
\nrespondent is proceeding in the matter without considering the question of
\napplicability and it goes without saying that before passing any order, the
\nrespondent is required to consider all the objections raised by the petitioner.
\nThereafter, the petitioner on 23.01.2008 filed their objections. Based on the
\nabove objections, the original authority namely, the Assistant Provident Fund
\nCommissioner, Employees Provident Fund Organisation, Tiruchy has proceeded and
\nultimately holding that as per the terms and conditions of a tender notice which
\nis part and parcel of the work order point number 23(g) and (h), the contractor
\nis required to make payment of EPF and also required to submit an undertaking in
\nfavour of the GM, M\/s.HAPP every month to the effect that he has paid wages to
\nthe workers and complied with the provisions of the Act. Whereas, M\/s.HAPP,
\nTrichy has not insisted the same from the contribution until 04.09.2006 and
\nonly from the said date, all the contract employees are covered under the Act
\nunder the Contractor’s Code number. Ultimately, it was held that by virtue of
\npower conferred on the authority under Section 7A of the Act that the dispute
\nraised by M\/s.HAPP, Trichy that Employees Provident Fund and Miscellaneous
\nProvisions Act, 1952 is applicable to M\/s.HAPP, Trichy with effect from
\n01.04.2001. Accordingly, the original authority directed the employer to comply
\nwith the provisions of the Act and the Schemes framed thereunder with effect
\nfrom 01.04.2001 as per the direction contained in Coverage memo
\nNo.Enf.\/B4\/TN\/TR\/76172\/SRO-TRY\/07, dated 05.12.2007 and dispose of the matter as
\nper the direction of this Court.\n<\/p>\n
\t13. \tAggrieved by the order of the original authority, the petitioner
\npreferred an appeal under proceedings in ATA(13)02, wherein the appellate
\nauthority has taken up the matter on the date fixed for hearing and on
\n19.10.2010, disposed of the appeal on merits. It is necessary to reproduce
\nParagraph 4 of the appeal order hereunder;\n<\/p>\n
\t“4. No argument was advanced by the appellant and the matter was reserved
\nfor order as per Rule 15 after hearing the counsel for respondent. The main
\nground taken in the appeal memo is that the persons engaged by the contractor
\nare not the employees of the appellant and there is no identification of those
\npersons.”\n<\/p>\n
Then the appellate authority proceeded further and decided the matter on merits
\nand confirmed the order of the original authority.\n<\/p>\n
\t14. A preliminary objection has been raised by the respondents on the
\nmaintainability of the writ petition, as the remedy open to the petitioner is
\nonly moving the authority concerned by way of a reviews since the order was made
\nin the absence of the appellant in view of Rule 15 of the Employees’ Provident
\nFunds Appellate Tribunal (Procedure) Rules, 1997, which reads as follows;
\n\tAction on appeal for appellant’s default -(1) Where on the date fixed for
\nhearing of the appeal or on any other date to which such hearing may be
\nadjourned, the appellant does not appeal when the appeal is called for hearing,
\nthe Tribunal may, in its discretion either dismiss the appeal for default or
\nhear and decide it on merit.\n<\/p>\n
\t(2) Where an appeal has been dismissed for default and the appellant files
\nan appeal within thirty days from the date of dismissal and satisfied the
\nTribunal that there was sufficient cause for his non-appearance when the appeal
\nwas called for hearing, the Tribunal shall make an order setting aside the order
\ndismissing the appeal and restore the same;\n<\/p>\n
\tProvided, however, where the case was disposed of on the merits the
\ndecision shall not be re-opened except by way of review.\n<\/p>\n
\t15. It is the ordained principle and consistent legal position that if an
\neffective and efficacious remedy is available, the High Court would not normally
\nexercise its jurisdiction and therefore, it has been held in several decisions
\nthat the writ petition will be entertained only on the following contingencies,
\nnamely, if the writ petition is filed for enforcement of any of the fundamental
\nrights, or when there has been violation of principles of natural justice or
\nwhere the order of proceedings are wholly without jurisdiction or the vires of
\nan Act is challenged. There is plethora of decisions held by the Hon’ble Supreme
\nCourt in this regard and one such case is reported in (1998) 8 SCC 1 (WHIRLPOOL
\nCORPORATION V. REGISTRAR OF TRADE MARKS). In the<\/a> absence of any contingency as
\nmentioned above and when an effective and efficacious remedy is available, this
\nwrit petition cannot be entertained and it goes without saying that the
\npetitioner has to avail the alternative remedy provided under the Act. In the
\ncase on hand, when there is an effective remedy available in the Rules itself,
\non the contrary, the petitioner has chosen to move this Court under Article 226
\nof the Constitution of India. As already pointed out, when the petitioner is
\nhaving an effective alternative remedy, this Court will not exercise its power
\nunder Article 226 of the Constitution of India. The petitioner, instead of
\nasking the authorities to re-open the case by way of a review, has filed this
\nwrit petition, which is prematured, misconceived and misconstrued. Therefore,
\nthe writ petition is rejected and the same is dismissed. However, the petitioner
\nis at liberty to move the authority concerned by making an appropriate review
\nunder Rule 15 of the Employees’ Provident Funds Appellate Tribunal (Procedure)
\nRules, 1997, within a period of four weeks from the date of receipt of a copy of
\nthis Order. If such a review is made, it is for the reviewing authority to
\nconsider the same in accordance with law and on merits and pass appropriate
\norders. No costs. Consequently, connected miscellaneous petition is closed.\n<\/p>\n
jikr<\/p>\n
To\n<\/p>\n
1.The Registrar,
\n  Employees Provident Fund Appellate Tribunal,
\n  Scope Minar, Core II 4th Floor,
\n  Laxmi Nagar District Centre,
\n  Laxmi Nagar,
\n  New Delhi-110 092.\n<\/p>\n
2.The Assistant Provident Fund Commissioner,
\n  Employees Provident Fund Organisation,
\n  Sub Regional Office, PB No.588,
\n  Sree Complex, ‘D’ Block,
\n  No.18, Madurai Road,
\n  Tiruchirappalli-8.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Union Of India vs The Registrar on 24 January, 2011 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-84441","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nUnion Of India vs The Registrar on 24 January, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/union-of-india-vs-the-registrar-on-24-january-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Union Of India vs The Registrar on 24 January, 2011 - 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