Employees Provident Fund ... vs Union Of India & Anr
2015 Latest Caselaw 1372 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: 18th February, 2015.

+              W.P.(C) 8429/2014 & CM No.19476/2014 (for directions)

       EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL
       BAR ASSOCIATION & ANR                     ..... Petitioners
                    Through: Mr. Rajiv Shukla and Mr. Shubham
                             Saxena, Advs.

                                 Versus

       UNION OF INDIA & ANR                                ..... Respondents
                    Through:            Mr. Manish Mohan, Ms. Sidhi Arora,
                                        Mr. Puja Sarkar and Ms. Mina
                                        Shaheen, Advs. for UOI.
                                        Mr. R.C. Chawla, Adv. for R-2.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This petition, under Article 226 of the Constitution of India, filed as a

Public Interest Litigation (PIL), seeks direction for expeditious appointment

of Presiding Officer as well as other staff of the Employees Provident Fund

Appellate Tribunal constituted under Section 7D of the Employees

Provident Funds and Miscellaneous Provisions Act, 1952, to enable the said

Tribunal to function fully and effectively.

2. It is the case of the petitioners, being an Association of the Advocates

practicing before the said Tribunal, (i) that considerable time is taken in

making appointment of the Presiding Officer of the said Tribunal, after the

previous appointee demits office and which results in long periods of time,

when the Tribunal is without a Presiding Officer. It is stated that the

Tribunal so remained non-functional for a period, of nearly six months, after

19th January, 2001, of nearly one year eleven months after 13th August,

2003, of nearly one year after 31st October, 2005; (ii) that the Presiding

Officer at the time of filing of the petition on 21 st November, 2014, was

retiring on 30th November, 2014 but no steps had been taken for appointing

a replacement; (iii) that even otherwise, the Tribunal was functioning on

skeleton staff which too was outsourced through an outside placement

agency and no steps had been taken to fill up the staff vacancies on a

permanent and regular basis; and, (iv) that though this Court vide orders

dated 29th April, 2008 and 17th September, 2008 in W.P.(C) No.3291/2008

earlier filed by the petitioners in this regard, had directed immediate steps to

be taken for filling up of the staff vacancies in the Tribunal but the said

directions had also not been complied with.

3. The petition was entertained and the counsel for the respondent Union

of India asked to obtain instructions. On 10th December, 2014, we were told

that the process of filling up of vacancies of the members as well as staff

was in progress and the same would be completed within a week. Similar

assurances were given from time to time. Today also a similar assurance is

given and it is stated that a proposal for appointment has already been sent

to the Appointment Committee of the Cabinet on 28th January, 2015 and

regular Registrar has already assumed charge of the post on 2 nd February,

2015. We are also informed that the Supreme Court in W.P.(C)

No.999/2014, a matter relating to establishment of the Bangalore Bench of

the Tribunal, is also monitoring the progress of the appointment of the

Presiding Officer of the Tribunal at Delhi.

4. The Employees Provident Funds Act was enacted to provide for the

institution of the provident funds, pension fund and deposit-linked insurance

fund for employees in factories and other establishments. Needless to state,

it is a legislation beneficial to the employees. The provision for setting up

of the Tribunal was incorporated in the Employees Provident Funds Act by

amendment, with effect from 1st July, 1997 to hear and decide appeals

against the orders of the Government or the Provident Fund Authorities

under the said Act as well as grievances against any Notification issued by

the Government under the Act. The said Tribunal is to consist of one person

only to be appointed by the Central Government and as per Section 7D(3), a

person shall not be qualified for appointment as a Presiding Officer of the

Tribunal, unless he is or has been or is qualified to be a Judge of a High

Court or a District Judge. Vide Section 7E of the Act, the Presiding Officer

is to hold office for a term of five years from the date on which he enters

upon his office or until he attains the age of sixty two years, whichever is

earlier. The Central Government has, in exercise of the powers conferred

by Section 21(1) of the Act, made the Employees Provident Funds

Appellate Tribunal (Procedure) Rules, 1997 and Rule 14(2) whereof

provides that every appeal shall be heard and decided, as far as possible,

within six months from the date of its registration. As per the said Rules,

the Tribunal is to work on all days, except on Saturdays and Sundays and

other public holidays, from 9.30 A.M. to 6.00 P.M. with the sitting hours of

the Tribunal being from 10.30 A.M. to 1.30 P.M. and from 2.30 P.M. to

5.00 P.M. The said Rules further provide that the entire administrative

expenses of the Tribunal shall be borne by the Central Board of Trustees,

Employees Provident Fund and that the fee or any other money received by

the Tribunal shall form a part of the Administrative Fund of the Central

Board. Section 7H of the Employees Provident Funds Act provides for the

Central Government to determine the nature and categories of the officers

and other employees required to assist the Tribunal in the discharge of its

functions and to provide the Tribunal with such officers and other

employees. In exercise of the said powers, a provision has been made for a

Registrar of the Tribunal. No material has been placed before us by either

party of the other assessment and provision, if any made of the remaining

staff of the Tribunal.

5. The provision made by the Central Government in the Rules

aforesaid, for decision of the appeal by the Tribunal within a period of six

months, is indicative of the legislative intent and desire for expeditious

disposal of the matters brought before the Tribunal. On the other hand, the

Central Government which is also responsible for making appointments of

the Presiding Officer and staff members of the Tribunal has been delaying

the appointments to the Tribunal and which has resulted in the Tribunal

being without a Presiding Officer in the past, for periods ranging from six

months to nearly two years. Such delays on the part of the Central

Government are undoubtedly in violation of the legislative mandate for

disposal of the appeal within six months. The Central Government is

clearly in defiance of the Rules made by itself.

6. We are unable to appreciate the reason therefor. As aforesaid, the

term of the Presiding Officer of the Tribunal is fixed and it is at all times

known, as to when the vacancy in the office of the Presiding Officer will

occur, save in the case of resignation or removal. When the date, on which

the vacancy in the office of the Presiding Officer is to occur, is so known,

there is no reason for the process for appointment of a substitute being not

commenced well in advance and the appointment being not finalised well

before the vacancy is to occur, so that the new Presiding Officer takes over

the very next day to the date of expiry of the term of the earlier. The

catchment area for such appointments also is not much or indeterminate and

according to us should also not pose any problem. To provide against last

minute uncertainties, in accordance with the Rules, a panel must be prepared

so that in the event of the selected candidate not joining, the next on the

panel can be offered the post.

7. All the aforesaid would apply to the other staff members also.

8. The Government has off late entered into the arena of tribunalisation,

to reduce the burden on the Courts and provide efficacious relief where

deemed most necessary and to also provide for determination by the experts.

However, such delays on the part of the Government in making

appointments, nullifies the whole purpose of tribunalisation.

9. We may notice that the Supreme Court as far back as in

L.Chandrakumar Vs. Union of India (1997) 3 SCC 261 noted the

observations made in the Malimath Committee Report on the functioning of

Tribunals. It was observed even then that though several Tribunals are

functioning in the country, not all of them have inspired confidence in the

public mind. One of the reasons given for the same was the inferior status

and casual method of working of the Tribunals and which affects the quality

of justice the said Tribunals are expected to mete out. The Supreme Court

in the said judgment had suggested that a wholly independent agency for

administration of all the Tribunals be set up and that the Tribunals, as far as

possible should be under a nodal Ministry which will be in a position to

oversee the working thereof. The creation of a single umbrella organization,

it was felt will remove many of the ills with which the Tribunals were

suffering.

10. Again, in United Bank of India Vs. Satyawati Tondon (2010) 8 SCC

110, with respect to the Debt Recovery Tribunals it was observed that

though the same worked well for some time but with the passage of time the

proceedings before the said Tribunals became synonymous with those of the

regular Courts, particularly because of the flawed appointment procedure

adopted by the Government resulting in delay in disposal of cases instituted

before the Tribunals. The same sentiment was reiterated in Standard

Chartered Bank Vs. Dharminder Bhohi 2013 (12) SCALE 124.

11. Inspite of repeated reminders and lament of the Supreme Court, as is

evident from the present case, things have not improved.

12. The Government of course has its explanation for the delays in the

appointment of the Presiding Officer this time around also. It is stated that

the process was initiated on 6th June, 2014 but only a few applications were

received, which too were incomplete or not through the proper channel;

thereafter letters were sent to the parent offices of the applicants and only in

December, 2014 i.e. after the earlier incumbent had demitted the office, the

meeting of the Selection Committee comprising of Secretary (Labour &

Employment), Secretary (Law) and the nominee of the Department of

Personnel and Training, was proposed. It is further explained that the

Selection Committee in or about January, 2015 recommended a panel of

two officers and recommendation is now pending with the Appointment

Committee of the Cabinet. Similarly, with respect to the filling up of the

vacancies of the subordinate staff, it is stated that a vacancy circular has

been issued and publicity, as required, is being given.

13. We are however not satisfied with the aforesaid explanation. If the

experience of the Government is that the process takes longer than six

months, it should be commenced so much before time, as may be deemed

expedient. The mandate is that there is to be no hiatus in the office of the

Presiding Officer or any staff member, except for unforeseen reasons.

14. We accordingly, while disposing of this petition, grant time till 10th

April, 2015 to the Central Government, to make the appointment of the

Presiding Officer and time till 30th June, 2015 to fill up all the other

vacancies including of staff. To ensure, that such a situation does not arise

in future, we make the Secretary (Labour & Employment) responsible for

ensuring that the process of filling up of the vacancy likely to arise in the

office of the Presiding Officer or any other staff member, is initiated well in

time to ensure that the substitute takes over the very next day of the earlier

incumbent demitting office. We have made the office of the Secretary

(Labour & Employment) responsible in this regard, being of the view that

such delays occur owing to the responsibility being not fixed.

Accountability is one of the ingredients of good governance and no purpose

will be served in this Court repeatedly issuing directions, without the

responsibility being fixed. Though the Supreme Court in In Re: Special

Reference No.1 of 2012 (2012) 10 SCC 1 has held that every holder of a

public office by virtue of which he acts on behalf of the State, is ultimately

accountable to the people in whom the sovereignty vests but what is found

is that for the reason of the said responsibility / accountability vesting not in

a single person but collectively in several, in the event of non-performance,

none is accountable with the buck being passed from one to another. We

feel it our duty to now devise a system for ensuring good governance by

fixing accountability of one person and have accordingly for the present

purposes, fixed the responsibility of Secretary (Labour & Employment) and

even if the ultimate act of appointment may be dependent upon contribution

of others, the Secretary (Labour & Employment) would be responsible for

ensuring compliance from other officials / offices within time. Else, the

Secretary (Labour & Employment) would be guilty of violating the

directions of the Court. The need for accountability, particularly on the part

of the civil servants, was again emphasized by the Supreme Court in T.S.R.

Subramanian Vs. Union of India (2013) 15 SCC 732.

15. We further direct the Ministry of Labour & Employment to make

each incumbent to the office of the Secretary (Labour & Employment)

aware of this direction of this Court, to ensure compliance.

The petition is disposed of.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE FEBRUARY 18, 2015 bs