Food Corporation Of India vs Regional Provident Fund ...
2010 Latest Caselaw 2185 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) 2413/1986

%                                                Date of decision: 26th April, 2010

FOOD CORPORATION OF INDIA                                   ..... PETITIONER
                 Through:                  Mr. Ajit Pudussery, Advocate.

                        Versus
REGIONAL PROVIDENT FUND
COMMISSIONER & ANR.                      ..... RESPONDENTS
                 Through:    Mr. Gaurang Kanth, Advocate.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.      Whether reporters of Local papers may
        be allowed to see the judgment?                   No

2.      To be referred to the reporter or not?            No

3.      Whether the judgment should be reported           No
        in the Digest?

RAJIV SAHAI ENDLAW, J.

1. This writ petition was dismissed vide order dated 4th September, 2002.

A Special Leave Petition 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.

2. 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.

3. 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. v. National Union Waterfront Workers (2001) 7 SCC 1. 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 (2008) 3 SCC 247. 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.

4. 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 therefor could not have arisen.

5. 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.

6. 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.

7. I may notice that the Supreme Court in International Airport Authority

of India Vs. International Air Cargo Workers' Union (2009) 13 SCC 374

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.

8. 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.

RAJIV SAHAI ENDLAW (JUDGE) 26th April, 2010 pp