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Judgment
Jayant Patel, J.—The present appeal is directed against the order dated 9.1.2013 passed by the learned Single Judge of this Court in Special Civil Application No. 3191 of 1995, whereby the learned Single Judge, for the reasons recorded in the order, has dismissed the petition, but with the further observation that the amount already contributed shall not be recovered from the employees concerned. We have heard Mr. Girish Patel, learned Sr. Counsel appearing with Mr. Mavlankar, learned Counsel for the appellants, Mr. Vakil, learned Counsel for respondent No. 1 and Mr. Rao, learned Counsel for respondent No. 2, upon advance copy.
The contention raised on behalf of the appellants is that in Paragraph 26(6) of the Scheme 1952, there is no express provisions made for limiting the liability of contribution of the employer concerned, in any manner whatsoever, whereas, so far as the other cases are concerned, the same have been expressly provided. It was submitted that since there is absence of limitation of liability of the employer, it could be termed as conscious omission on the part of the Parliament and hence, it should be interpreted that the employer could be liable to contribute equal amount in comparison to the contribution made by the employee.
Mr. Patel, learned Sr. Counsel for the appellants, alternatively contended that even if two views are possible namely; that the conscious omission in Paragraph 26(6), and it may also be termed as no liability created, the interpretation of this Court should lean in favour of the employee since it is a beneficial legislation. He submitted that under these circumstances, the view taken by the learned Single Judge would be rendered erroneous and this Court may consider in the appeal.''
It was also submitted that since 2.2.1989, for covering the employees, whose salaries were exceeding the prescribed limit, permission under Paragraph 26(6) of the Scheme 1952 was granted by the Regional Provident Fund Commissioner on condition that the employer has to contribute equal amount and also the administrative charges. So far as the administrative charges are concerned, there is no dispute, but on the aspect of equal contribution, if employer were to withdraw such benefits, it may result into change in service condition and more particularly for the workmen, who were covered by the provisions of the Industrial Disputes Act (hereinafter referred to as the ID Act). No notice u/s 9A of ID Act was ever given. In the case of officers, who are not covered by the provisions of ID Act, at least the principles of natural justice were required to be followed. Such was also not followed. It was, therefore, submitted that the impugned action by the Circular dated 18-4.1995 could be said as in breach of the provisions of Section 9A of ID Act and/or in breach of the principles of natural justice. It was submitted that the learned Single Judge has not properly considered the said aspect and, therefore, this Court may consider in the present appeal.
We may record that the learned Single Judge in the impugned judgment has reproduced Paragraphs 26, 26A, 26B, 27 and 27A of the Scheme of 1952 and other relevant provisions and also Section 9A of the ID Act. We find that they would also be relevant for our consideration and, therefore, they are reproduced as under:--
(6) Notwithstanding anything contained in this paragraph, an officer not below the rank of an Assistant Provident Fund Commissioner may, on the joint request in writing of any employee of a factory or other establishment to which this Scheme applies and his employer, enroll such employee as a member or allow him to contribute more than [six thousand five hundred rupees] of his pay per month if he is already a member of the fund and thereupon such employee shall be entitled to the benefits and shall be subject to the condition of the fund, provided that the employer gives an undertaking in writing that he shall pay the administrative charges payable and shall comply with all statutory provisions in respect of such employee.
The learned Single Judge has further considered the contention and has observed, thus, from paragraphs 12 to 15 as under--
The conjoint reading of sections 6 and 12 of the Employees Provident Funds and Miscellaneous Provisions Act, 1952, paragraphs 26 (with specific reference to paragraph 26(6)), 26A, 27, 27A and 29 of the Employees Provident Funds Scheme, 1952 and the observations of the Supreme Court of India as referred above, leaves no room, in my view, but to hold that the employer can not be directed to contribute in the provident fund of the employee, more than ten per cent or twelve per cent, or on the monthly emoluments exceeding Rs. 6500, the ceiling now prevailing. The liability of the employer, under this Act, under ail these cases is limited to Rs. 6500 and limited to ten per cent or twelve per cent, as the case may be. The argument of learned counsel for the employees that section 12 of the Act would prohibit reduction of contribution by the employer from the amount exceeding to Rs. 6500 to the mandatory stipulation of Rs. 6500, is not well-founded and is rejected. Reference in this regard may also be made to the decision of Hon''ble the Supreme Court of India in the case of Committee for Protection of Rights of ONGC Employees and others Vs. Oil and Natural Gas Commission, Dehradun and another, . The reliance placed by learned counsel for the employers on the decision of the Kerala High Court in the case of North Malabar Gramin Bank Officers Association and Another (supra), though is well-founded, the same may not be required to be gone into in detail, in view of the decision of Hon''ble the Supreme Court of India in the case of Committee for Protection of Rights of ONGC Employees (supra). The judgments relied upon by the employees which are referred above, will not have application in this fact situation and will not hold the field on the face of the judgments of Hon''ble the Supreme Court, relied upon by the employers, which are referred above. Thus on this bone contention, the case of the employees is rejected and that of the employers is accepted.
With regard to the contention of learned advocates for the employees, that the employers be restrained from making any recovery from the employees regarding the excess contribution which was already made by the employer in the provident fund of the employees, prior to this litigation i.e. upto the year 1995 is concerned, it needs to be recorded that it is not even the case of the employers that there was any fraud or misrepresentation on the part of the employees. Learned counsels for the employers have vehemently opposed grant of relief on this point also but are not in a position to point out how employees were responsible for that. In this fact situation, this argument of learned counsel for employees is accepted.
The stand of the authorities of Regional Provident Fund Commissioner is based on applicability of section 12 of the Act. After having held that section 12 wilt not have application in the facts of this case, the stand taken by Regional Provident Fund Commissioner needs to be and is rejected. There is one more dimension so far the stand taken by Regional Provident Fund Commissioner is concerned. In the judgment delivered by the Kerala High Court in the case of North Malabar Gramin Bank Officers Association and Another (supra), almost identical stand was rejected. Though the said judgment may not have any binding force so far as this Court is concerned, that argument is not available to the authority of Regional Provide Fund Commissioner because the provision of the Act which has fallen for consideration in this case, is the Central Act. The Regional Provident Fund Commissioner is an Authority of the Central Government, working in different States. The Authority of one State representing the Central Government cannot contend that interpretation of some sections of the Central Act given by one High Court would bind only the Authority of that State and the Regional Authority of the Central Government in different States is free to give its own interpretation to the same section of the Central Act. If such a stand is accepted, it would lead to anarchical situation, which can not be countenanced. It is to be noted that only because the Kerala High Court has taken this view, this argument of the management is accepted, is not the case here. Independent of it, on the reading of the Scheme of the Act, read with the judgment of the Hon''ble Supreme Court as noted above, I have found that section 12 of the Act would not have any application in the present case. On the face of this finding, I find that the stand of Regional. Provident Fund Commissioner is inconsistent with the interpretation given by a High Court which has binding force on the authority of the Central Government. The stand of Regional Provident Fund Commissioner, needs to be and is rejected.
In this group of petitions, on behalf of the employees, one of the contentions raised is of violation of principles of natural justice, as well as notice u/s 9A of the Industrial Disputes Act, 1947. On behalf of the employees it is also indicated that, atleast the Regional Provident Fund Commissioner may be asked by the Court to hear all concern and decide the issue. On behalf of the employers, contention of alternative remedy is also taken. With regard to these rival contentions of involving some other forum/authority, it is recorded that, in my view, at this distant point of time, it would be unfair to ask the employees to approach the labour forum. Further, the petitions filed by the employers, challenging the decision of the Regional Provident Fund Commissioner also revolve around the same issue and since all these petitions are heard together, without relegating the employees to alternative remedy, I have thought it fit to hear them on merits, including on the aspect of violation of Section 9A of the Industrial Disputes Act, 1947. On hearing them on this issue as well, this Court finds that, in the event of giving notice u/s 9A of the Industrial Disputes Act, 1947, while adjudicating the claim of the employees-workmen, the labour forum, legally can not have any course open, independent of, or inconsistent with, the interpretation of the relevant provisions of the Act, as given hereinabove, and under these circumstances, the argument of giving notice to the employees, in this fact situation, on merits, would not have taken the case of the employees any further. Same way, the argument on behalf of employees that, opportunity of hearing ought to have been given, independent of requirement of section 9A of the Industrial Disputes Act, also needs to be rejected, in the peculiar facts of this case, since the matters rest on applicability and interpretation of the provisions of the Act, and discussion and finding of this Court in that regard is already recorded, above. Therefore, even if the contention of employees, that before reverting back to the contribution as per statutory obligation only, management ought to have heard the employees is accepted, that would lead to a situation, where they would not get anything on merits and still, after these many years, potentially fresh round of litigation would be left open to one set of litigants in this group, resulting into multiplicity of litigations, which, in peculiar facts, I do not consider to be in the interest of employees either. So far hearing by Regional Provident Fund Commissioner is concerned, it would also have resulted in a situation worse than an exercise in futility, since the stand of that authority is already on record and that is held to be illegal. Under these circumstances, the contention on behalf of both the groups of involving some other authority for adjudication, is rejected.
If the aforesaid observations, and the view taken by the learned Single Judge are further examined in fight of the submission made by the learned Counsel for the appellants, it appears that as per paragraph 26(6), upon joint request in writing of any employee and employer, any employee may be allowed to become a member of the Scheme and he may also be allowed to contribute more than Rs. 6,500 of his pay per month if he is already member of the fund. Upon such request made by the employer and the employee, the employee would be entitled to the benefits and shall be subject to the conditions of the fund, but so far as the employer is concerned, the only requirement is that the employer has to give an undertaking in writing that he shall pay administrative charges and shall comply with all statutory provisions in respect of such employees. Therefore, one aspect is apparently clear that it does not speak for any counter obligation to be created upon the employer for his contribution more than provided by the statute. The only obligation created is as provided by the statute and additional liability to pay administrative charges. If any employer has voluntarily agreed to contribute large amount than provided by the statutory obligation, it may be termed as a liability created by volition and not on account of discharge of the statutory obligation. Once we proceed on that basis, the right, if any, by employee cannot be enforced as if the statutory obligation so created and there is abdication therefrom.
It is hardly required to be stated that if any employer by volition has accepted for creation of any liability, the employee may have the remedy, if otherwise permissible in law but such cannot be enforced as if the statutory obligation. In the same manner, the clause provided at the time when the order dated 2.2.1989 was passed for extending the benefits of the Scheme by the Regional Provident Fund Commissioner could be termed as not by exercise of statutory power for enforcement of statutory obligation, but could be termed as was mentioned in the order on account of the volition by the employer.
We are not impressed by the submission that as there is conscious omission for not limiting the liability of the employer under Paragraph 26(6) of the Scheme, it should be interpreted to mean that the liability was created without there being any limit or for equal contribution to be made by the employer. As such, if paragraph 26(6) is read, the employer has to give an undertaking in writing that he shall pay; (1) administrative charges payable, and (2) comply with ail statutory provisions in respect of such employee, which may include the statutory liability to make contribution in respect of such employee. Such may be 10% or 12%, as the case may be, of the salary of the employee, subject to the upper limit of the pay of Rs. 6,500. Therefore, it is not a case where one may find that there is conscious omission for statutory liability. In our view, the matter cannot be considered as if the vacuum so created and the lapse to be read by the Court by interpreting the provisions for the benefits of the employee. In our considered view, Paragraph 26(6) of the Scheme expressly so provides for all contribution and the liability so created. Therefore, the contention of making the interpretation in favour of the employee is on a non-existent premise, since there is no vacuum created or conscious omission as sought to be canvassed.
If the aforesaid interpretation is considered in light of the observations made by the teamed Single Judge, we do not find that any error has been committed by the learned Single Judge in interpreting the provisions of Paragraph 26(6) of the Scheme read with the other paragraphs of the Scheme.
It was a matter of 1995, which came to be decided by the learned Single Judge in January 2013. The learned Single Judge, as per the observations made by him in above referred paragraph 15, has examined the merits of the contention and thereafter has decided the matter. We do not find that when the matter was to be decided after about 18 years, the parties could have been relegated to the remedy of ID Act qua the workers. Even on the aspect of breach of principles of natural justice, the learned Single Judge has examined the matter on merits and has found the dispute raised by the employee is without substance.
It is hardly required to be stated that in a case where the complaint is made for non-observance of principles of natural justice, this Court, in exercise of power under Article 226 of the Constitution of India, may decline to entertain such complaint, if the Court finds that there is no prejudice in law caused to the complaining party. As observed earlier, there was no statutory obligation created and so was found by the learned Single Judge on merits and hence, no useful purpose would be served in examining the aspect of relegating the parties to give opportunity of hearing and thereafter to decide the same. So far as the Regional Provident Fund Commissioner is concerned, he even otherwise also has no authority to go beyond the express provisions of the Scheme, nor could he examine any dispute under ID Act. Therefore, it appears to us that taking into consideration the complexity of the issue to be considered in light of the provisions of ID Act read with the alleged breach of principles of natural justice, if the learned Single Judge himself has examined the same on merits, such cannot be said to be an exercise of discretion in a perverse manner, nor can it be said that it has resulted into in miscarriage of justice.
Mr. Patel, learned Sr. Counsel appearing for the appellants did contend that if the action was by volition and any change was to be affected, it could not be unilateral without compliance of Section 9A of the ID Act and, therefore, the action could be said as void and the learned Single Judge has not property considered the said aspect.
In our view, it is not on account of any obligation so created by statutory fiction the change was to be made therein. At the most, it could be on account of the exercise of the power by the Regional Provident Fund Commissioner providing for equal contribution by the employer. No agreement between the employer and the employee is brought to our notice, which may have been submitted at the time when the order dated 2.2.1989 was passed. Therefore, in absence of any such material, it could not be termed as an agreement to abide by the obligation of equal contribution. It is a different matter where the employer pursuant to the order of the Regional Provident Fund Commissioner dated 2.2.1989 might have continued to contribute accordingly. Therefore, whether such could be termed as a change in service condition as sought to be canvassed or not cannot be gone into by this Court in a petition under Article 226 of the Constitution of India in absence of any such material on record.
Apart from the above, the fact remains that when on merits, the learned Single Judge found that as there was no statutory obligation so created, it should not be treated as change, we do not find that such would make any difference to the ultimate decision taken by the learned Single Judge. In view of the aforesaid, no case is made out for interference. Hence, the present appeal is not entertained. Therefore, dismissed. No order as to costs.