employee’s provident fund appellate …s provident fund...1 employee’s provident fund appellate...

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EMPLOYEE’S PROVIDENT FUND APPELLATE TRIBUNAL. CHANDIGARH

ATA NO. 630 (II) / 2006. M/s. Ropar Thermal Plant ............................................................. Appellant

V/s Regional Provident Fund commissioner, ................................... Respondent

Date :- 17.10.2012 ORDER

The appellant filed an appeal before the Employees’ Provident Fund Appellate Tribunal, against the order dated 15.02.2005, passed by the EPF Authority under section 7-A of the Act, stating that the amount has been determined without identification of beneficiaries which is illegal.

The EPF Appellate Tribunal observed that according to the rules of the Contract Labour Regulation and Abolition) Central Rules, 1971, all the registers and other records shall be preserved for a period of three calendar years from the date of last entry therein. Hence, the appellant cannot be directed to produce the records pertaining to contractors’ workers for the long back period. Even register of employees of the contractors, muster roll, wage register etc. are to be maintained by the contractors concerned and the principal employer is only to maintain the register of contractors. It is also observed that the respondent determined the PF dues without identification of concerned Employees / beneficiaries. The burden to identify the employees is initially on the EPF Authority on the basis of records. Thereafter, the burden shift to the appellant / employer. The EPF Authority has to use powers as provided under section 7A of the Act event to enforce attendance in person on oath. Under its power, the EPF Authority is not to decide abstract question of law but only to determine the actual concrete differences in payment of PF contribution and other dues by identifying the employees. The Authority in this case, has failed to exercise such powers as to identify the beneficiaries. The determination of dues, by taking hypothetical percentage of the total contract value or labour charges towards wages and recovering the same from the appellant would not help the workers as the money would not reach them till the time they are identified. Hence, impugned order is quashed. Matter is remanded back to the concerned authority to conduct fresh enquiry into the matter and the PF dues should be determined in accordance with law after hearing the parties concerned.

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EMPLOYEE’S PROVIDENT FUND APPELLATE TRIBUNAL. CHANDIGARH

ATA NO. 217 (II) / 2011. M/s. Harry Hyper Stories ................................................................. Appellant

V/s Addl. Provident Fund commissioner, ........................................... Responded Chandigarh

Date :- 20.01.2012 ORDER

The appellant filed an appeal before the Employees’ Provident Fund Appellate Tribunal, against the order dated 31.01.2011, passed by the EPF Authority under section 7-A of the Act, putting forth grievance that the determination and fixing of liability of the appellant / principal employer towards PF contribution dues without identification of beneficiaries by the Enforcement Officer is illegal.

At the outset, it is mentioned that the workers will have to be identified first before the amount is assessed and is recovered. Until and unless, the beneficiaries are identified, the determined dues as decided by the Enforcement Officer would not help the workers as the money would not reach to them till the time they are identified.

The EPF Appellate Tribunal observed that the Enforcement Officer did not identify the workers concerned while preparing his report on the basis of which the amount of PF contribution has been determined. The money would not reach the concerned workmen till the time they are identified. Burden to identify the employees is initially on the EPF Authority. The appellant has shown his inability to produce the records. Steps taken by the EPF Authority to identify the workers are not apparent as per requirement of law before effecting recovery. Under section 7-A of the Act, the EPF Authority has same powers as are vested in Court for trying a suit. EPF Authority is not empowered to decided abstract question of law but only to determine the actual concrete differences in payment of PF contribution and other dues by identifying the employees. EPF Authority should exercise its powers to collect all evidence before coming to proper conclusion. The EPF Authority has failed to exercise its powers to identify the beneficiaries. The Enquiry Officer has shown his ignorance in this respect. Therefore, impugned order is quashed being illegal.

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EMPLOYEE’S PROVIDENT FUND APPELLATE TRIBUNAL. NAGPUR

ATA NO. 139(9)/2005 AND 62(9) 2005 M/s. Intelligence security Force (I) Pvt Ltd. .................................. Appellant

V/s Addl. Provident Fund commissioner, Nagpur ............................ Respondent

Date :- 19.06.2012 ORDER

The contentions of the appellant in the appeals is that the determination of PF dues in proceedings under section 7A of the Act by the EPF Authority is not fair as there is no identification of beneficiaries, and excess amount has been assessed and recovered which is illegal.

The EPF Appellate Tribunal observed that determination of the Provident Fund dues has been made by the EPF Authority on the basis of taking certain percentage as wages and no identification of beneficiaries has been made out. Determination of Provident Fund dues on the basis of certain percentage of the amount as wages has been challenged by the appellants stating it to be not fair. The workers have to be identified first before the amount is assessed and is recoverable. Wide powers have been conferred on the 7-A authority in this regard. Further the purpose of the Act is not to collect the money and keep it in the coffers of the Government. The whole purpose of the Act is to recover the Provident Fund dues from the establishments of the employers, amenable to the provisions of the Act and to disburse the same to the workers who are members of the Employees’ Provident Fund Organization. Until and unless beneficiaries are identified, determining the Provident Fund dues by taking hypothetical percentage of the total wages and recovery of the same would not help the workers as the money would not reach them. The amount recovered, in excess, has not been allocated to any of the additional beneficiaries. Records of the appellants are in the custody of the respondent, Commissioner for the last more than 7 years. Hence, the impugned orders, passed by the EPF Authority, are set aside with the directions to the EPF Authority to refund the excess amount, so recovered, along with interest @12% p.a. to the appellant. The appeals are allowed.

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EMPLOYEE’S PROVIDENT FUND APPELLATE TRIBUNAL. NAGPUR

ATA NO. 754(9)/2010 M/s. Sanvijay Rolling & Engineering Ltd. ...................................... Appellant

V/s Addl. Provident Fund commissioner, ............................................. Responded

Date :- 02.02.2012 ORDER

The appeal of the appellant before EPF Appellate Tribunal, against the order dated on 25.11.2010 of the EPF. Authority passed under sections 7-B of the Act, is that the impugned order is illegal as the beneficiaries have not been Identified by the Enquiry Officer.

The Hon’ble Appellate Tribunal observed that the purpose of the Act is not to collect the money and keep it in the coffers of the PF Authorities but to recover the PF dues from the establishments which are amenable to the provisions of the Act and to disburse the same to the workers concerned. But the EPF Authority had not made any serious efforts to collect the essential material / evidence to ascertain the actual wages paid and the beneficiaries. Thus, it is clear that the workers have to be identified first before the amount is assessed and recovered. Hence, the impugned order wherein the beneficiaries have not been identified is set aside and the appeal is allowed.

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THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL NEW DELHI

ATA NO. 53(9)/2008

BETWEEN M/s. George Construction Company. .................. Appellant And APFC, Nagpur ................ Respondent

ORDER DATE :- 24. 01.2008

Present : Shri S. N. Khandelwal, Counsel for the appellant Shri R. R. Rajesh, Counsel for the respondent

The appeal has been filed under Section 7 I of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (for short “the Act”) against the order dated 11.01.2008 of the APFC, Nagpur passed in the proceedings conducted under Section 7-A of the Act whereby the appellant establishment was assessed for the PF liability in respect of casual worker engaged for the period from 1997-98 to 2006-07. 2. The case of the appellant is that the appellant is engaged in the business of construction activities in Nagpur and other adjoining areas. The construction activates are carried out throughout the year, in open and in-house, under different climatic conditions. The peculiar fluctuation in the climatic conditions and environment makes it incumbent upon the appellant contractor to engage labour who can withstand such conditions. As a result, the appellant engaged different set of people for different kind of work in different climatic conditions. It is also stated that in the construction activities, the building contractors undertakes various different activities, viz., excavation work, foundation work, masonry work, centering, plumbing, electrification plastering and work relating lying pipelines etc. The workers for all different jobs are engaged separately because common worker cannot do all kind of work. Further, the different job is to be done at different stage. The duration of work of all these different

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activities is very short. Also, the workers engaged for the job are rural workers and agricultural seasonal workers. The employment of these workers is very short for temporary phase and there is no continuity of work by these workers. The appellant further stated work awarded to it is in turn awarded to petty contractors/ sub contractors. The said petty contractor, depending on the nature of job involved get the work done through its own workers. For the said work the appellant has no supervision or control. 3. The Regional Provident Fund Office, Nagpur took cognizance of the matter and found that the appellant is not extending the provident fund benefits to the casual workers engaged at the work site. The respondent issued notice to the appellant contractor calling upon to it as why it for both the parties and Shri Salil Shanker, RPFC-II at length. The First contention of Shri Dandekar the LD. Counsel appearing for the Appellant is that the workers engaged for construction activities at the work sites of the appellant have no assured continuity of work. Normally the construction work awarded to the Appellant by the Government, Semi Government and public bodies is further awarded to the several sub contractors by the appellant. The sub-contractor further awards it to the petty contractors or the kedars who in turn employ daily rated casual workers who are usually migratory labours. There is no supervision or control by the appellant over the daily rated casual workers engaged at the work site. Thus, these site casual workers are not eligible for the PF benefits. the Builders Association of India challenged the said notice before the High Court of Bombay Bench at Nagapur in Writ Petition No. 2593 of 1997. The said Writ Petition was partly allowed by the Hon’ble High Court directing the Provident Fund Authorities to initiate enquiry proceedings under section 7-A of the Act and decide the matter within the stipulated period. The respondent initiated the proceedings under section 7-A of the Act. The Enquiry Officer issued notice to the appellant. Appellant filed a reply and also gave an undertaking to pay its share as per the provisions of the EPF & MP Act, if any person establishes his employment with the Appellant in future and indemnifying the Respondent in regard to any such claim raised at any future date. 4. During the enquiry proceedings, an investigating team constituted by the respondent, made a visit to the Appellant’s establishment and collected certain documents including the list of employees engaged. The enquiry officer, relying on the reports submitted by the squad, concluded the enquiry proceedings vide

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order dated 11.01.2008 and assessed the PF dues for the period 1997-98 to 2006-07. The order is challenged before this Tribunal. 5. The Respondent has filed a reply to the appeal contending that the coverage of the Act should be extended to all the employees engaged directly or indirectly by the appellant in connection with affairs of establishment. The respondent submitted that a worker, in accordance with para 26(2) of EPF Scheme, is eligible for the PF fund as soon as he joined the organization in connection with the work of the establishment. This provision has been upheld by the Apex Court in the case of JP Tobacco Vs. UOI reported in 1 II CLR 369. It is further contended that the appellant had intentionally failed to produce documents asked for to identify the number of employees engaged. 6. Heard the counsels for the parties. The criterion to define the term ‘employee’ under a given Act is laid down by the Hon’ble Apex Court in the case of The Provident Fund Inspector, Guntur Vs. T. S. Hariharan (AIR 171 SC 1). In this case, Hon’ble Apex Court has observed that:

“9.Considering the language of Section 1(3)(b) in the light of the foregoing discussion it appears to us that employment of a few persons on account of some emergency or for a very short period necessitated by some abnormal contingency which is not a regular feature of the business of the establishment and which does not reflect its business prosperity or its financial capacity and stability from which it can reasonably concluded that the establishment can in the normal way bear the burden of contribution towards the provident fund under the Act would not be covered by this definition. The word “employment” must therefore, be construed as employment in the regular course of business of the establishment : such employment obviously would not include employment of a few persons for a short period on account of some passing necessity or some temporary emergency beyond the control of the company. This must necessarily require determination of the question in each case on its own peculiar facts. The approach pointed out by us must be kept in view when determining the question of employment in a given case”. 7. The high Court of Bombay, Branch at Nagpur in the case of M/s. Sandeep Dwellers Pvt. ltd – vs – Union of India (2006 (III) CLR 748), by following the decision of the Apex Court in T. S. Hariharan (Supra) has also held that it is within the competence of the PF authorities to adjudicate on this issue whether the workers engaged for shorter duration are eligible to be included in the definition of ‘employee’ under Section 2(f) of the Act.

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Therefore, the responsibility to identify the employees is vested in the Enquiry Officer appointed under Section 7A of the Act. The Enquiry Officer has rightly taken the cognizance of this issue in the 7A enquiry conducted by him. The Enquiry Officer, in order to determine the actual beneficiaries in the appellant’s establishment, had deputed a squad for inspection of the appellant’s business premises. The squad inspected the annual Balance Sheet including various expenses relating to material and site arrangements etc. and on the basis of that inspection submitted a report to the respondent. On the basis of the report submitted by the squad, the Enquiry Officer identified 61 employees and assessed the PF dues. No justification or basis for identification of these employees is assigned anywhere in the order. The Learned Counsel for the respondent contended that the appellant is in the construction business since long and he is expected to maintain the records the employees engaged as well as the sub-contractors’ hired to attend his work. On the inspection conducted by the squad, it is alleged that the appellant refused to cooperate with the inspection team/squad and denied the access to the relevant attendance register and the records of the past years, and, since, the appellant has not allowed the access to the relevant records of the past years, the respondent has no option but to rely on the attendance register for the current to determine the number of employees engaged in the past years. This submission of the appellant has no merits. Under section 7A (2) of the Act, the Enquiry Officer, appointed under Section 7A of the Act, has all the powers of a court under the Code of Civil Procedure, 1908 for trying a suit in respect of the matters relating to (a) enforcing the attendance of any person or examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; and (d) issuing commissions for the examination of witnesses. The Enquiry Officer has not exercise all these powers properly and effectively to recover the old records etc to determine the actual number of employees engaged by the appellant establishment. The enquiry officer in the impugned order has observed that, ‘the identification of workers and assessment of dues is a continuous process and should be taken up accordingly buy the Circle Officer’. These observations of the Enquiry Officer indicates that he has without conducted any enquiry to examine and determine the number of employees, adopted the figures and version given by the department about employees indentified. It’s therefore, follows that the identification\ of workers is not based on any evidence and is without any enquiry, which is not sustainable in law.

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8. Shri Khandelwal further submitted for waiver of the employees’ share for the past period since the Appellant has not deducted the amount from the employee’s salary in view of the stay granted by the Hon’ble High Court. In this regard, reliance can be placed on the Apex Court’s decision in the case of District Exhibitors Association – vs – Union Of India (AIR 1991 SC 1381), wherein their Lordship held that the employer has the liability to deduct the amount form the wages payable and not from the wages paid. He explained that the payment of employee’s contribution by the employer with the corresponding right to deduct the same from the wages of the employees could be only for the current period during which the employer has also to pay his contribution. It is noted that the basic purpose of the Act could be achieved only if it is ensured that the employees are benefited by the EPF Scheme. The observations made by the Hon’ble Apex Court in case of Provident Fund Commissioner vs TS Hariharan (AIR 1971 SC 1519) assume importance here :

“The Act was brought on the statute book for providing for the institution of the provident Fund for the employees on the factories and other establishments. The basic purpose of providing for provident funds appears to be to make provision for the future of the industrial worker after his retirement or for his dependents in case of his early death. To achieve among the workers a spirit of saving something regularly, and also to encourage stabilisation of a steady labour force in Industrial Centres.’

Therefore, in the absence of proper identification of employees / beneficiaries, the desired objectives of the Act could not be achieved by directing the appellant to deposit his contribution alone. the purpose of the Act would be served only when the employees are identified and the share of respective parties is collected for the welfare of the beneficiary. 9. Shri R. R. Rajesh, Id. Counsel for the Respondent contended that the moment the person joins the establishment even for the single day it be construed as the joining and he becomes an employee within the meaning of section 2(f) of the Act. It, therefore, casts the statutory liability on the employer’s share and other charges to the Respondent as the beneficiaries were known for that particular time. This contention is sustainable only when the identification has been done at the particular point of time. But where there is no identification of employees and even the employer are not traceable in future, it would be futile to call the employer to fulfil his part of obligation under the Act by making its part of PF contribution. Therefore, the deduction of the

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contribution would not have sufficed the purpose. And in such circumstances, if the deduction is permitted, it would defeat the very purpose of the Act. 10. In view of the above discussion, the impugned order suffers from infirmities and is legally not correct and valid. The same is quashed. The appeal is allowed. The determination of the respondent for the Period 2001-2002 to 2006-2007 is not as per the guidelines and the test laid down by the Hon’ble High Court and thus liable to be set aside. The employee’s share of contribution for the past period is hereby waived (2005-06 & 2006-07). File be consigned to record room. The copy of the order be sent to both the parties.

(RL Koli) Presiding Officer, EPFAT

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ATA NO. 53(9)/2008

BETWEEN M/s. George Construction Company. ................ Appellant

And

APFC, Nagpur .................Respondent

ORDER Date :- 2nd September, 2008

Present : Shri S. N. Khandelwal, Counsel for the appellant

The appeal has been filed an under Section 7 I of the Employees

Provident Fund and Miscellaneous Provisions Act, 1952 (for short “the Act”) against the order dated 11.01.2008 of the APFC, Nagpur passed in the proceedings conducted under Section 7-A of the Act whereby the appellant establishment was assessed for the PF liability in respect of casual worker engaged at the construction for the period from 2005-06 and 2006-07. The said appeal was allowed by the Tribunal vide Order dated 24.01.2008 and the relief was granted, inter, alia, for waiver of employees share of contribution for the period 2005-06 and 2006-07. The appellant has now filed an application under Rule 21 of the EPF Appellate Tribunal Rules, 1997 for clarification that the precise amount towards employer’s share of contribution for the period 2005-06 and 2006-07 was not specifically mentioned in the order and the respondent had issued recovery letter for 2006-07. The appellant has, therefore, prayed that the respondent’s letter of recovery be quashed and the amount of employer’s share of contribution for the period 2005-06 and 2006-07 be specifically highlighted by suitably issuing clarification in respect pf para 10 of the Order of this Tribunal dated 24.01.2008. 2. Heard the counsels for the appellant. This Tribunal in its Order dated 24.01.2008 has waived the employees share of contribution for the period 2005-06 and 2006-07. Although in the grounds taken in the appeal a specific relief

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was sought for waiver of Rs. 1,68,448/- towards identified employees share of contribution for the period 2005-06 and 2006-07. The amount however could not be mentioned in the Order dated 24.01.2008 but a specific relief was granted to the appellant for waiver of employee’s share of contribution for the period 2005-06 and 2006-07. Accordingly, it is clarified that the appellant is entitled and allowed for the relief of waiver of Rs. 1,68,448/- towards identified employees share of contribution for the period 2005-06 and 2006-07. The application filed under Rule 21 of the EPF Appellate Tribunal Rules, 1997 for clarification is allowed and the demand raised for recovery of Rs. 6,56,510/- towards employees share of contribution for the period 2005-06 and 2006-07 is found to be not in consonance with the law.


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ATA NO. 53(9/2008)

BETWEEN M/s. George Construction Company. .................. Appellant

And

APFC, Nagpur ................ Respondent

ORDER Date :- 10th, August, 2009

Present : Shri S. N. Khandelwal, Counsel for the appellant Shri R. R. Rajech, Counsel for the respondent.

The respondent department has filed the present application for rectification / clarification Under Section 7(L) (2) of Employees Provident Fund & Miscellaneous Provisions Act of 1952 (For Short “The Act”), seeking modification of order dated 02.09.2008 p[assed by this Tribunal and to maintain the original order dated 24.01.2008, and alternatively, the respondent by the present application had prayed for permitting them to initiate proceeding under Section 7(A) of the Act for the entire period and also permit it to recover the dues. The respondent has stated that the appellant had not deposited employer’s share of contribution as directed by the order of this Tribunal dated 24.01.2008 and moved an application under Rule 21 of Employees Provident Fund Appellate Tribunal Rules, 1997 for clarification on demand raised by the respondent for recovery of Rs. 6,56,510/- The respondent further have alleged in the application that, the appellant has suppressed the material fact from this Tribunal and thus based on this fact, the appellant had prayed for modification of order dated 02.09.2008 passed by this Tribunal. The appellant opposed the application by filing a reply and questioned the tenability of the application on a ground that, there is no apparent error / mistake on the face of record in the

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order of this Tribunal dated 02.09.2008 and as such, in absence of any rectification and mistake apperent on the face of record in order dated 02.09.2008, the application is not maintainable. The appellant further stated that this Tribunal has already passed an order dated 24.01.2008, wherein the order dated 11.01.2008 was quashed and set aside and as in the said order, the employer’s share of contribution was not mentioned which was supposed to be deposited by the appellant in view of the order of this Tribunal dated 24.01.2008 for a period of 2005-06 & 2006-07. thus, the appellant had moved an application under rule 21 of E.P.F. Appellate Tribunal Rules, 1997 for appropriate direction, wherein the appellant prayed to quash and set aside the demand notice issued by the respondent department dated 06.06.2008 and 20.06.2008. Further, the appellant had prayed that, the employer’s share of contribution for a period 2005-06 & 2006-07 to the tune of Rs. 1,91,048/- deposited by it is just, legal and proper and in view of the order of this Tribunal dated 24.01.2008. 2. I have heard the respective counsels perused the application and reply filed by the appellant and after perusal of application and reply, I find that, this Tribunal had already passed the reasoned order dated 24.01.2008 in an appeal Under section 7(1) of the Act of 1952. So also, this Tribunal had given its reasoning for allowing the application of appellant filed under Rule 21 of EPF Appellant Tribunal Rules, 1997 vide order dated 02.09.2008. After perusal of the application, reply and both the orders as referred above passed by this Tribunal, I does not find any mistake apparent from the perusal of order dated 24.01.2008 as well as the order dated 02.09.2009. Thus, as the order dated 02.09.2008 is reasoned order the there is no mistake or apparent error in it, the present application filed by the respondent is itself not tenable, as the powers which is to be exercised by this Tribunal are very limited Under Section 7(L) (2) of the Act of 1952, It is needless to mention here that, unless and until; there is any apparent error / mistake on a face of record / in order, the power cannot be exercised counsel for appellant who has submitted that, as there is no apparent error on a face of record in the order passed by this Tribunal dated 02.09.2008, the present application is not liable to be entertained. Thus, for the aforesaid reason, the application filed by the respondent Under Section 7(L) (2) of the Act of 1952 is hereby rejected.


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IN THE HIGH COURT OF GUJARAT AT AHMADABAD DISTRICT : AHMADABAD

SPECIAL CIVIL APPLICATION 11611 OF 2009

Hind Mazdoor Kisan Panchayat, Notice to be served through P. Chidambaram, Petitioner....

V/s

Regional Provident Fund Commissioner & other Respondent....

INDEX

1. MEMO OF THE PETITION 1 TO 5

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IN THE HIGH COURT OF GUJARAT AT AHMADABAD

DISTRICT : AHMEDABAD


Hind Mazdoor Kisan Panchayat, Notice to be served through P. Chidambaram, Petitioner....

V/s Regional Provident Fund Commissioner & other Respondent..

LIST OF EVENTS DATES EVENTS

4th March 1952 The Employees’ Provident Funds and Miscellaneous Provisions Act came into the statute book

2nd September 1952 The Employees’ Provident Funds Scheme under the Employees’ Provident Funds and Miscellaneous provisions Act got framed

2nd September 1952 Para 73 of Employees’ Provident Funds Scheme came in to effect

25th July 1992 Para 40-A of the Employees’ Provident Funds Scheme came into effect

The respondents having not got implemented Para 40-A and Para 73 of the Employees’ Provident Funds Scheme this petition is filed.

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BEFORE THE HON’BLE HIGH COURT OF GUJARAT

DISTRICT : Ahmadabad Special Civil Application No.11611/2009 In the matter of Article 226 of the Constitution of India

And

In the matter of the Employees Provident Funds and Miscellaneous Provisions Act and Schemes there under

And

In Public Interest Litigation

Hind Mazdoor Kisan Panchayat, Notice to be served through P. Chidambaram, Dr. Lohia Sadan, Dr. Ram Manohar Lohia Marg, Odhav, Ahmedabad...... Petitioner......

V/s

1. Regional Provident Fund Commissioner, Employees Provident Fund Organisation, “Bhvisyanidhi Bhavan” Nr. Reserve Bank of India, Ashram Road, Ahmedabad.

2. Regional Provident Fund Commissioner, Employees Provident Fund Organisation, “Bhvisyanidhi Bhavan” B/H VMC ward-6 Office, Akota, Stadium Road, Vadodara.

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3. Regional Provident Fund Commissioner, Employees Provident Fund Organisation, “Bhvisyanidhi Bhavan” Ghod-Dod Road, Ram Chawk, Surat – 395 001.

4. Regional Provident Fund Commissioner, Employees Provident Fund Organisation, “Bhvisyanidhi Bhavan” Panchayatnagar Chowk, University Road, Rajkot 360 005.

5. Central Provident Fund Commissioner,

Employees provident Fund Organisation, “Bhvisynidhi Bhavan” Bhikaji Cama Place, as per Court order of 5/4

6. Union of India through secretary ministry of labour Shram Shakti Bhavan Rafi Marg, New Delhi. ..... Respondents

TO THE HON’BLE CHIEF JUSTICE & OTHER HON’BLE JUDGE OF THE HON’BLE HIGH COURT OF GUJARAT AT AHMADABAD

THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED

MOST RESPECTFULLY SHEWETH THAT 1. This petition is to awaken the respondents appointed under The Employees Provident Funds and Miscellaneous Provisions Act, 1952 (EPF and M.P. Act for short) to get implemented the E.P.F. and M.P. Act and the various schemes there under from deep slumber in the matter of issue of the Pass Books and Annual Account Slips to the workers who are the members of the Employees Provident Funds Scheme (E.P.F. Scheme for Short) 2. Para 40-A of the E.P.F. Scheme reads as under.

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“40-A. Supply of pass books to the members :- With effect from such date as the Commissioner may specify in this behalf every employer shall, on an employee becoming a member of the fund, provide a Pass Book to every such member and maintain the same in such form and manner as the Commissioner may direct from time to time.

Provided that different dates may be specified for different industries or classes of establishments or for different areas.” 3. There are innumerable establishments in the State Of Gujarat covered under the E.P.F. and M. P. Act and Lakhs of workers are the members of the E.P.F. Scheme, Employees pension and Employees Deposit Linked Insurance Scheme framed under the E.P.F. and M.P. Act. 4. The respondents are the Regional Provident Fund commissioners situated at different centres in the State of Gujarat to get implemented and monitor the E.P.F. and M.P. Act and the Schemes there under in their respective areas. 5. The petitioner submits that the respondent have nerver cared to get implemented para 40-A of the E.P.F. Scheme in the establishments situated in thir respective areas. The Petitioner submits that no employer in the state of Gujarat is supplying Pass Books to the workers who are the members of the E.P.S. Scheme. 6. The Petitioner submits that Para 40-A came in to the E.P.F. Scheme with effect from 25.07.1992. It is seventeen long years and the respondents are sleeping on it. The respondents are not getting the para 40-A implemented. The Petitioner submits that every Para of the E.P.F. Scheme is to make the member know the Provident Funds account on month to month basis, the dates on which the remittances are made by the employers. the amount of interest earned etc. The Petitioner submits that the workers can get corrected any mistake or error in their account immediately if they have the Passed Books with them. 7. The Petitioner submits that Para 73 of the E.P.F. Scheme reads as under. 73 Annual Statement of member account – (1) As soon as possible after the close of each period of currency of contribution card the Commissioner shall send to each member through the employer of the [factory or other establishment] in which he was last employed a statement if his account in the Fund showing the opening balance at the beginning of the period, amount contributed during the year, the total amount of interest credited at the end of the period or debited in the period and the closing balance at the end of the period.

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(2) Members should satisfy themselves as to the correctness of the annual statement and any error should be brought to the notice of the commissioner within six months of the receipt of the statement.” 8. The petitioner submits that as per Para 3 the respondents are required to supply the annual statement of accounts every year to each member, the said statement are to be sent to the employers and the employers. These annual statements are also not being supplied to the majority members. The contract labour is worst affected lot. In cases where the employers do not pay the contributions regularly the respondents to not supply the annual statement of accounts. 9. The petitioner submits that supply of Pass Books and supply of annual statement of account to the members of the fund are mandatory requirements as per the E.P.F. Scheme. The respondents are duty bound to implement the same. 10. The petitioner submits that the Pass Books as per Para 40-A of the E.P.F. Scheme is not being supplied to any member of the scheme in the whole of Gujarat State. The annual statement of accounts are also not supplied to all the members of the scheme regularly. The respondents being the authorities empowered by the E.P.F. Act and Schemes there under are responsible for the present situation. 11. The petitioner has not filed any other petition either in this Hon’ble court or in any other Court including the Hon’ble Supreme Court of India on the subject matter of the present petition. 12. The Petitioner states that it has no the equally officious remedy but to approach this Hon’ble Court by way of this petition.

PRAYER 13. In the aforesaid premise, the petitioner most respectfully prays that: (A) Your Lordships to issue a writ of mandamus and or any appropriate writ or direction to the respondents to get implemented the Paras 40-A and 73 of the E.P.F. Act immediately in their respective areas of operation. (B) Any other and further reliefs that this Hon’ble Court may deem fit and proper be granted. And for this act of kindness, the petitioner herein as in duty count shall for every pray. Ahmadabad Sd/- Date : 9-11-2009 Petitioner

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AFFIDAVIT I, P. Chidamabaram, Adult Secretary Gujarat State Hind Mazdoor Kisan Panchayat do hereby on solemn affirmation stte that what is stated in paragraphs 1 to 12 is true to the best of my knowledge, information and belief and I believe the same to be true. Paragraph 13 is prayer clause. Solemnly affirmed at Ahmadabad on this 9th day of November, 2009. Sd/- Deponent I identify the deponent. Clerk to

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IN THE HIGH COURT OF GUJARAT AT AHMADABAD

DISTRICT : AHMADABAD


Hind Mazdoor Kisan Panchayat, Through P. Chindambaram ...... Petitioner

Versus

Regional Provident Fund Commissioner & other ...... Respondent

Affidavit in-reply on behalf of the Respondent No. 1 to 4

I, ..................................................................... working as ........................... in the officer of the respondent / authority do herein solemnly affirm and file present affidavit as under: I have gone through the memo of the petition as well as files and documents relating to present case and therefore I am conversant with each of the facts, hence, competent to file this affidavit. 1) At the outset I sate that present affidavit in reply is filed for the Limited purpose with a view to appraise correct facts and situation prevailing because as such policy decision taking authority is not the present respondent but the Govt. of India, Ministry of Labour, New Delhi. It is further submitted that the present respondents are only executing directions and policies framed by the Govt. of India. I further reserve my right to file detail parawise affidavit in reply in future as and when necessary. 2) At the outset I deny each and every averment levelled against me in the memo of the petition and facts which are not specially admitted by me hereinafter are to be traded as denied. 3) At the outset I say and submit that no prejudice much less serious in nature is being caused to the petitioner in view of the alleged non implementation of the paragraph no. 40-A and 73 of the Employees Provident Fund Scheme, 1952. Under the circumstances I humbly request this Hon’ble High Court to dismiss the petition with cost.

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4) At the outset I say and submit that the intension behind the paragraph No 40-A i.e. Supply of Pass Book to the members is to update the members of the scheme with regard to contribution monthly as well as yearly, interest accrued thereon etc. It is relevant to note that Paragraph No. 35 i.e. preparation of contribution cards of every employee by the employer is already existing and implemented by the respondent / authority, more so other provisions are made in the scheme so as to enable the employee to know their actual. The relevant provisions of the scheme are reproduced herein blow for the sake of convenience:-

Para 35 : Preparation of Contribution Cards: “The employer shall

prepare a contribution card [in Form 3] {or Form3A} as may be appropriate,

in respect every employee in his employment at the commencement of the

Scheme or who is taken into employment after that date and who is required or

entitled to become or is a member of the Fund including those who produce an

Account Number and in respect of whom no fresh Declaration Form prepared.

[Provided that in the case of any such employee who has become a

member of the Family Pension Fund under the Employees’ Pension Scheme,

1971, the aforesaid Forms shall also contain such particulars ad are necessary

to comply with the requirements of that Scheme].”

In addition to the aforesaid provision Paragraph 35(5) is also being implemented and enforced strictly by the authority which reads as under:

Para 36 sub Para 5 : Every employer shall maintain such accounts in

relation to the amounts contributed to the Fund by him and by his employees as

the [Central Board] may, from time to time, direct and it shall be the duty of

every employer to assist the [Central board] in making such payments from the

Fund to his employees as are sanctioned by or under the authority of the

[Central board]”

It is pertinent to note here that in addition to the aforesaid provision even provisions with regard to entry of contribution by the employer and inspection thereof by the employees are also made available which are as under :

Para 40: Contributions to entered in the contribution cards : “The

amount recovered every month from the wages of an employee as well as the

contribution made by the employer in respect of each such employee shall be

entered by the employer every month in the contribution card opened in the

name of each member under the Scheme.”

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Para 41: Currency of Contribution Cards : “The contribution cards

issued under the scheme shall be current for one year :

Provided that the said period of one year may commence and terminate

at such different times in different [factories or any other establishments] as

may be decided by the Commissioner from time to time]

Provided further that the cards issued : i) in respect of the first contribution period or ii) in respect of the contribution period immediately preceding the

date from which the establishment id notified as an annually posted establishment.

May be for a period which may be less or more than a year. Para 42 : Renewal of contribution card : An employer shall, on or

before the expiration of the period of currency of the contribution card, prepare

in respect of each member employed by him a card [in Form-3] or Form 3A] as

may be appropriate, for the next period of currency.

[Provided that in the case of any such employee ho has become a member

of the Family Pension Fund under the Employees’ Family pension Scheme,

1971, the aforesaid Form shall also contain such particulars as are necessary

to comply with the requirements off that Scheme]

Para 43: Submission of Contribution cards to the Commissioner: Every

employer shall, within one month from the date of expiration of the period of

currency of the contribution cards in respect of members employed by him, send

the contribution cards in respect of members employees by him, send the

contribution cards to be Commissioner together with a statement in Form No. 6.

Provided that where a member leaves service, the employer shall send the

contribution card in respect of such members before the twentieth day of the

month following that in which the member left the service.

Provided further that in the case of any such employees who has become a member of the Family Pension Fund under the Employees’ Family Pension Scheme, 1971 the aforesaid From shall also contain such particulars as are necessary to comply with the requirements of that Scheme.

Para 44: Custody of contribution Cards : The employer shall retain in

his custody the contribution crds in respect of each member employed by him

and shall take every precaution against loss or damage of the contribution

cards.

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Para 45 : Inspection of Cards by members : Any member making a

request in his behalf to the employer shall be permitted to inspect his cards

himself or to have the same inspected by any person duly authorized by him in

writing to do so, within 72 hours of making such request provided that no such

request shall be entertained more than once in a every two calendar months.

5) It is pertinent to mote here that the annual account slip under Paragraph 73 is issued after the Central Board of Trustees, Employees Provident Fund Organization / Government of India declares the rate of interest for the concerned financial year and the statutory, returns prescribed under the EPF & MP Act, 1952 and Schemes framed there under are submitted in complete shape and format to the concerned office. It is submitted that annual slips as envisage in paragraph 73 is being issued to all the members / subscribers. It would be pertinent to note here that in the annual account slip progressive balance of the concern member is being shown which includes opening balance, interest, contribution, withdrawals and the closing balance. Under the circumstances it will be just and proper for this Hon’ble High Court to dismiss the petition holding that no serious prejudice is being caused to the members / subscribers for allege non implementation of aforesaid provisions. 6) Under the circumstances and in view of the submission made hereinabove, it is most respectfully submitted that no prejudice whatsoever is being caused to the members on account of non issuance of the pass book as envisage in Para 40-A of the Scheme. The ultimate purpose of the p[ass book is to enable the members to know their accumulation, contribution, withdrawals, interest etc. which as such by implementing various provisions of the scheme are being made aware to the members. It is, therefore, humbly requested this Hon’ble High Court to dismiss the petition with exemplary cost. Date : 16.08.2010 Place : Ahmedabad Deponent

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IN THE HIGH COURT OF GUJARAT AT AHMADABAD SPECIAL CIVIL APPLICATIONS NO. 11611 OF 2009

======================================================== HIND MAZDOOR KISAN PANCHAYAT, THROUGH P

CHIDAMBARAM – Petitioner (s) Versus

REGIONAL PROVIDENT FUND COMMISSIONER & 5- Respondent (s)

======================================================== Appearance MR. YOGEN N. PANDYA for Petitioner(s) :1, NOTICE SERVED BY DS for Respondent(s) :1-4, MR. NIRAL R. MEHTA for Respondent (s) : 1-2, SERVED BY RPAD – (N) for Respondent (s) : 5, MR. PS CHAMPANERI for Respondent (s) : 6] ======================================================== HONOURABLE THE CHIEF JUSTICE MR. S. J. CORAM : MUKHOPADHAYA

and HONOURABLE MR. JUSTICE J. B. PARADIWALA

DATE : 07.09.2011

ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. S. J. MUKHOPADHA

On 5th April 2011, learned counsel appearing on behalf of the Reg.

Provident Fund Commissioner contended that Pass-book as per Para 40A and 73 of the Employees Provident Fund Scheme, 1962, could not be issued in absence of any supply from the Union of India or direction from Union of India, Ministry of Labour.

Today, when the matter is taken up, learned counsel appearing on behalf of the Regional Provident Fund Commissioner submitted that the matter is to be

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discussed with Central Provident Fund Commissioner and Ministry of Labour, New Delhi and only thereafter action can be taken. In the facts and circumstances, we direct the respondents including Regional Provident Fund Commissioner, Ahmadabad, Central Provident Fund Commissioner, New Delhi and Secretary, Ministry of Labour and Social Welfare to sort out the problem and ensure compliance of provision of paragraph 40A and 73 of the Employees Provident Fund Scheme, 1962 by 15th October 2011. Pass Book to the members should be supplied by 30th November 2011. A copy of this order be handed over to learned counsel for Regional Provident Fund Commissioner, Ahmadabad and to Mr. P. S. Champaneri, learned Assistant Solicitor general for communication thereof to the concerned officers’ of Central Provident Fund Commissioner, New Delhi as well as Union of India. Progress report be submitted to the Court on the next date of hearing. Post the matter on 20th October 2011.

(S.J. Mukhopadhaya, C. J.)

(J.B.Pardiwala,J) Mathew

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IN THE HIGH COURT OF GUJARAT AT AHMADABAD CIVIL APPLICATION NO. 11433 OF 2011

IN SPECIAL CIVIL APPLICATION NO. 11611 OF 2009

======================================================== REGIONAL PROVIDENT FUND COMMISSIONER & 4- Petitione r (s)

Versus HIND MAZDOOR KISAN PANCHAYAT, THROUGH P CHIDAMBA

======================================================== Appearance : MR. NIRAL R. MEHTA for Petitioner MR. YOGEN N. PANDYA for Respondent :1 MR. PS CHAMPANERI for Respondent : 2 ======================================================== HONOURABLE THE ACTING CHIEF JUSTICE CORAM : Mr. A. L. Dave

and HONOURABLE MR. JUSTICE J. B. PARADIWALA

Date : 20.10.2011

ORAL ORDER

(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. A. L. DAVE

Rule: Learned advocate Mr. Yogen Pandya and learned Assistant Solicitor General of India Mr. Champaneri waive service of notice of rule for respondent No. 1 and respondent No. 2 respectively. 2. Heard the learned advocates for the parties. 3. Considering the volume of work and detailed exercise to be undertaken, we were inclined to extended time by three months. However, on repeated insistence of both, learned advocate Mr. Mehta for the applicants and learned Assistance Solicitor General of India Mr. Champaneri, we extend the time by four months with effect from 30.11.2011, with a rider that no such application for extension of time will be filed by the applicant. Rule is made absolute accordingly. Direct service is permitted.

(S,J. Mukhopadhaya, C. J.) (J.B.Pardiwala,J)

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