Amiya Kumar Kundu vs Union of India (UOI)

Susanta Chatterji, J.—This writ petition is at the instance of the 18 writ Petitioners who were carrying on the business as contractors for the purpose of executing various types of civil; mechanical, constructional and maintenance works etc. by way of supplying of labourers under the various companies and firms under their respective trade names and praying, inter alia, for a declaration that the provisions of Section 2(f) and Section 8A of the Employees Provident Funds and Family Pension Act, 1952, and the provisions under para. 36 of the Scheme framed thereunder are ultra vires the Constitution. They have also challenged the order as contained in the letter No. R-EX/716/NB/447/756 dated February 18, 1984, issued by the Regional Provident Fund Commissioner as contained in the letter dated June 4, 1984, copy of which is Annex. ''H'' to the writ petition, and prayed for an order of injunction restraining the Respondents concerned from deducting any sum on account of the provident fund from the bills of the Petitioner pending payment by the company concerned as also for a mandatory order of injunction directing M/s. Dunlop Company to release and/or disburse and/or make payment of all sums due and payable by them to the Petitioners'' firm in respect of the bills submitted by the Petitioners in connection with the various work orders executed by the Petitioners'' firm within such time as the Court may fix.

It is stated in detail that the Petitioners'' business is independent and irrespective of the business of the Respondent company and, for all practical purposes, the application of the provisions of the Employees Provident Fund Act does not arise.

The writ petition was moved and the Petitioner obtained a Rule nisi on July 24, 1984. The Rule is opposed by the Provident Fund Authorities and also by the Dunlop India Ltd. On behalf of the Respondent No. 4, the Regional Provident Fund Commissioner, it is placed on record that on investigation it was found that M/s. Dunlop India Ltd., Respondent No. 6, which is an exempted establishment of the region, did not extend the provident benefits to the contractors'' employees and consequently the establishment was directed to extend the provident fund benefit to the contractors'' employees with retrospective effect. The said establishment prayed for a separate code number for compliance under the Employees Provident Fund and Miscellaneous Provisions Act, 1952, and the Scheme framed thereunder, in respect of all the employees of the contractors.

Therefore, a separate code number being WB/716A was allotted to M/s. Dunlop India Ltd. at their instance for the purpose of compliance in respect of the employees of all the contractors of the said company M/s. Dunlop India Ltd. It is further stated that the said establishment so far deposited Rs. 6.03 lakhs in the Employees'' Provident Fund Account No. 1 for the period from January 1982 to April 1984, and investigation is under process to assess the provident fund dues prior to January 1980. It is also pointed out that under the law the principal employer is required to intimate the contractors that the provident fund benefits are granted to the eligible employees engaged by the contractors in work of the principal employer and the nature of the engagement of the employees, whether permanent or temporary, does not make any difference in extending the provident fund benefits if the employee is otherwise qualified and the number of employees engaged by the contractors in the work of the principal employer is also not a crieria for extending the said benefits under the said Act to the eligible employees.

All other allegations of the writ Petitioners have been controverted. An affidavit-in-opposition has also been filed on behalf of the Respondent No. 6, M/s. Dunlop India Ltd. It is disclosed, inter alia, that in terms of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, it is obligatory on the part of the Petitioners to take appropriate steps for coverage of their companies and/or firms under the provisions of the said Act, and as such, the Respondent No. 6 repeatedly drew the attention of the Petitioners individually to take necessary action in the matter. It has already been intimated to the Petitioners'' firm by the Respondent No. 6 for voluntary provident fund coverage of their respective firms and the Respondent No. 6, in order to ascertain whether the Petitioners'' firm are complying with the formalities and the provisions of the said Act, wrote a letter on January 8, 1984, and also sent forms required to be submitted to the Regional Provident Fund Commissioner and also intimated that the Respondent No. 6 would be sending debit notes in respect of the arrear contribution of the Petitioners'' establishment for the period of January 1980 to March 1983 to be deposited with the Regional Provident Fund Commissioner.

The Petitioners have however filed an affidavit-in-reply, reiterating the points already taken in the writ petition and by denying the allegations raised in the affidavits-in-opposition.

Having heard Mr. Anupam Kumar Chatterjee, learned Advocate appearing in support of the writ application and Mr. Siddhartha Chatterjee, the learned Advocate for the Respondent No. 6, M/s. Dunlop India Ltd., as well as Mr. Jayanta Kumar Biswas, learned Advocate appearing on behalf of the Respondents Nos. 2 and 4, Provident Fund Authorities, it appears that a very short point is involved in this writ petition. this Court is of the view that the acts done by the Respondents Nos. 4 and 6 are not contrary to and inconsistent with the provisions as laid down in Section 2(f) and Section 8A of the Employees Provident Funds and Family Pension Act, 1952, and the provisions under para. 36 of the Scheme framed thereunder, although in the writ petition the said provisions of the Scheme have been challenged as ultra vires the Constitution. Practically, nothing has been demonstrated before this Court as to the illegality and/or irregularity of the said provisions and the question of vires has not been seriously raised and/or disputed. Besides, this Court does not find that the said provisions are inconsistent with any guarantee given in the Constitution and the steps taken by the Respondents are not vitiated, nor they have violated any fundamental rights of the Petitioners.

Considering all the aspects of the matter, this Court is of the view that the said provisions are not repugnant to the fundamental rights guaranteed under the Constitution of India, and the challenges made by the Petitioners have actually no merit. Since it is obligatory on the part of the Petitioners to get the coverage under the legislation to protect the interests of the employees and since it has not been done, the steps taken by the Respondent No. 6, M/s. Dunlop India Ltd., are neither illegal nor irregular, necessitating any interference by this writ Court.

For the aforesaid reasons, this Court does not find any merit as to the contentions of the writ Petitioners and the writ petition is disposed of with this observation that the steps taken by the Respondent No. 6 for payment of the provident fund dues are justified. But besides such adjustment, if any other dues are payable to the contractors, the same should be paid without unnecessary delay causing any complications.

It is, however, made clear that any amount lying with the Respondent No. 6, which is otherwise receivable by the Respondent No. 4., should be transferred immediately.

The Rule and the writ petition are both disposed of as above.

There will be no order as to costs.

Let xerox copies of this order be made available to the learned Advocates on record for the respective parties on their usual undertakings and upon compliance with necessary formalities.