Shoshit Majdoor Sanghthan ... vs Director Of Education And Ors.
2017 Latest Caselaw 1187 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) No.3812/2010

%                                                   3rd March, 2017

SHOSHIT MAJDOOR SANGHTHAN (REGD.) & ANR.... Petitioners
                 Through: None.
                         versus

DIRECTOR OF EDUCATION AND ORS.           ..... Respondents

Through: Mr. Satyakam, ASC.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? YES

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition under Article 226 of the Constitution

of India, 12 petitioners who are members of the petitioner no.1/Union,

seek the relief of being granted the pay scales as per the 6 th Pay

Commission Report which became applicable to schools in Delhi w.e.f

1.1.2006. Petitioners claim to be the employees of the respondent

no.2/Darshan Academy Public School.

2. In support of the contention that petitioners are

employees of the respondent no.2/school, no documents showing any

employment of the petitioners by the respondent no.2/school have been

filed. The only reason given for the petitioners to claim employment

with the respondent no.2/school is that they have provident fund code

numbers and provident fund is deducted from their salaries.

3. Respondent no.2/school has filed its counter affidavit

denying that petitioners are their employees and has pleaded that

petitioners are employees of an independent contractor, and therefore,

since petitioners are not employees of the respondent no.2/school,

hence they are not entitled to payment of salaries as payable to the

employees and teachers of the respondent no.2/school.

4. Section 8A of the Employees‟ Provident Funds and

Miscellaneous Provisions Act, 1952 (hereinafter referred to as „the

Act‟) reads as under:-

"Section 8A. Recovery of moneys by employers and contractors.(1) The amount of contribution (that is to say the employer‟s contribution as well as the employee‟s contribution in pursuance of any scheme and the employer‟s contribution in pursuance of the Insurance Scheme), and any charges for meeting the cost of administering the Fund paid or payable by an employer in respect of any employee employed by or through a contractor may be recovered by such employer from the contractor, either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor.

(2) A contractor from whom the amounts mentioned in sub-section (1) may be recovered in respect of any employee employed by or through him, may recover from such employee the employee‟s contribution under any scheme by deduction from the basic wages, dearness allowance and retaining allowance (if any) payable to such employee. (3) Notwithstanding any contract to the contrary, no contractor shall be entitled to deduct the employer‟s contribution or the charges referred to in sub-section (1) from the basic wages, dearness allowance, and retaining allowance (if any) payable to an employee employed by or through him or otherwise to recover such contribution or charges from such employee. Explanation.- In this section, the expressions, "dearness allowance" and "retaining allowance" shall have the same meanings as in section 6.

5. It will also be relevant to refer to Section 2(f) of the Act

which defines an employee and which definition of employee reads as

under:-

"Section 2(f) "employee" means any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment, and who gets, his wages directly or indirectly from the employer, and includes any person,-

(i) employed by or through a contractor in or in connection with the work of the establishment;

(ii) engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961 (52 of 1961), or under the standing orders of the establishment;"

6. A conjoint reading of Sections 8A and 2(f) of the Act

shows that employees can work with an employer directly or through a

contractor, and when an employee works with the employer through a

contractor, it is the employer which is responsible for deducting of the

provident fund and which amounts can be recovered by the employer

from the contractor. A reading of Section 8A of the Act shows that

merely on account of provident funds being deducted by the employer,

and which is the respondent no.2/school in this case, the petitioners

will not be employees of the principal employer, being the respondent

no.2/school, and such employees will continue to remain employees of

the independent contractor.

7. I have already stated above that no documents whatsoever

are filed by the petitioners to show that they are employees of the

respondent no.2/school and reliance is placed by the petitioners only on

the aspect of deduction of their provident funds by the respondent

no.2/school. In view of Section 8A of the Act, it is held that petitioners

were never and are not the employees of the respondent no.2/school

and therefore they cannot get benefit of the payment of salaries and

other emoluments as payable to the employees and teachers of the

respondent no.2/school.

8. Writ petition is accordingly dismissed, leaving the parties

to bear their own costs.

MARCH 03, 2017                               VALMIKI J. MEHTA, J
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