Food Corporation of India vs Regional Provident Fund Commissioner and Another

Rajiv Sahai Endlaw, J.—This writ petition was dismissed vide order dated 4th September, 2002. A SLP was preferred by the petitioner to the Supreme Court and which was granted and the SLP converted into a Civil Appeal No. 7482/2003. It appears that the said civil appeal was taken up for consideration along with several other civil appeals, informed by the counsel for the petitioner to be arising from judgments and orders of the Punjab & Haryana High Court. The Supreme Court disposed of all the said appeals vide common order dated 28th July, 2009.

The question involved in all the aforesaid matters was of the liability of the petitioner Food Corporation of India for provident fund for the employees engaged through a contractor. The respondent RPFC, owing to the definition of employee in Section 2(f) of the Employees'' Provident Funds & Miscellaneous Provisions Act, 1952 held the petitioner liable for the provident fund for the employees engaged through a contractor also. This Court, as aforesaid dismissed the writ petition.

The Supreme Court has in the order dated 28th July, 2009 (supra) noted the contention of the Attorney General appearing for the petitioner that the definition of employee in Section 2(f) (supra) has to be read in the light of the decision of the Constitution Bench of the Supreme Court in Steel Authority of India Ltd. and Others etc. etc. Vs. National Union Water Front Workers and Others etc. etc., It was observed that notice had also not been issued to the contractors through whom the said persons were engaged, as laid down in Bharat Heavy Electricals Ltd. Vs. ESI Corporation, . The Supreme Court accordingly remanded the writ petition to this Court for fresh decision in the light of the observations in the order of the Supreme Court.

The counsel for the petitioner had on the last date as well as today contended that the determination after issuance of notice to the contractor has to be done first by the RPFC and not by this Court. The counsel for the respondent RPFC also agrees that in the present case the notice was not issued to the contractor. He however urges that this Court in order dated 4th September, 2002, while dismissing the petition, has held that the RPFC could have issued notice only upon the petitioner furnishing the list of the said contractors. This Court in the judgment dated 4th September, 2002 while dismissing the writ petition found that the RPFC has dealt with the petitioner�s request for summoning the contractors and had repeatedly asked the petitioner to submit the relevant record but the petitioner had failed to comply with the same and withheld the record and it was in that context that the RPFC had fallen back upon other sources to collect the requisite data. The counsel for the RPFC further states that since the Supreme Court while pronouncing the order dated 28th July, 2009 (supra) was dealing with a number of appeals and hence this distinguishing feature in the present case remained to be noticed. It is contended that since it was the petitioner who failed to supply the list of contractors, there is no need in the present case for remanding the matter to the RPFC. However, I am unable to accept the said contention of the counsel for the RPFC. Firstly, the order dated 4th September, 2002 has been set aside by the Supreme Court. Secondly, the order dated 4th September, 2002 also does not state that the list of contractors was asked for or not given; all that the order records is that the records for the purposes of determining the amount of the PF were not produced. The orders dated 15th February, 1984 and 8th October, 1986 impugned in the writ petition have also been perused. I do not find any mention therein also that there was any direction by the RPFC to summon the contractors or that the particulars of the contractors were asked for from the petitioner. In fact, prior to the judgment of the Supreme Court in Steel Authority of India Ltd. (supra) and in Bharat Heavy Electricals Ltd. (supra), it could not have been the intent of RPFC to summon the contractors and thus the occasion therefore could not have arisen.

The next question to be considered is whether the said summoning of the contractors has to be done before this Court, as appears from the order of the Supreme Court or before the RPFC. The counsel for the RPFC has fairly stated that the said exercise will have to be done before the RPFC only and cannot be undertaken before this Court.

I may record that the counsel for the petitioner has controverted that the list of contractors was asked for or not given inspite of opportunity. It is his contention that the said list has always been made available at all stages. He also invites attention to the subsequent order dated 9th March, 2010 of the Supreme Court in Civil Appeal No. 1677/2009 to the same effect as the order dated 28th July, 2009.

I may notice that the Supreme Court in International Airport Authority of India Vs. International Air Cargo Workers'' Union and Another, has laid down the further test to be applied with respect to the said contract workers, i.e. of primary and secondary control over the said workers. The said judgment is also mentioned to bring the same to the notice of the RPFC for consideration while deciding the matters afresh.

For the reasons aforesaid, the writ petition is allowed. The orders impugned in the writ petition are set aside. The matter is remanded to the RPFC for disposal afresh in accordance with the judgment of the Supreme Court and the observations hereinabove.

No order as to costs.