Madras High Court
The Commissioner vs The Secretary on 30 April, 2021
W.P. (MD) No.20284 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.04.2021
CORAM
THE HONOURABLE MR.JUSTICE P.D.AUDIKESAVALU
W.P.(MD) No. 20284 of 2014
and
M.P. (MD) Nos.1 & 2 of 2014
The Commissioner,
Mannarkudi Municipality,
Mannarkudi, Thiruvarur District. ... Petitioner
-vs-
1.The Secretary,
Department of Ministry of Labour & Employment,
New Delhi.
2.The Central Provident Fund Commissioner,
Employees' Provident Fund Organisation,
Bhavishya Nadhi Bhawanm
14, Bhikaji Cama Place,
New Delhi – 110 066.
3.The Commissioner,
Employment Provident Fund Organization,
Trichy Region, Trichy.
4.The Assistant Provident Fund Commissioner,
Employment Provident Fund Organization,
Trichy Region, Trichy.
1/25
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W.P. (MD) No.20284 of 2014
5.The Enforcement Officer,
Employment Provident Fund Organization,
The District Office,
82G, Bishop House Extension,
Kamaraj Road, Kumbakonam.
6.The Commissioner of Municipal Administration,
Ezhilagam, Annexe VI Floor,
Chepauk, Chennai - 600 005.
7.State of Tamil Nadu,
represented by the Additional Chief Secretary to Government,
Municipal Administration and Water Supply Department,
Secretariat, Fort St. George,
Chennai - 600 009. ... Respondents
(R6 and R7 are suo motu impleaded vide
separate order dated 30.04.2021)
PRAYER:- Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari, to call for the records pertaining to the
impugned notification issued by the First Respondent Gazette of India dated
08.01.2011 and impugned order of the fourth respondent in
No.Enf.D4/TN/TR/81722/SRO-TRY/2013 dated 10.12.2013 and impugned
order of the fifth respondent in TN/EO/KUM/81722/2014 dated 17.11.2014
and quash the same.
2/25
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W.P. (MD) No.20284 of 2014
For Petitioner : Mr.S.Vishnuvardhan
for Mr. K.K.Ramakrishnan
For Respondents : Mr. S.Jeyasingh (For R1)
Senior Panel Counsel
Mr. G.Dharmaraja (For R2, R3 & R5)
for M/s.VS.Karthi Associates
Mr. Dilip Kumar (For R4)
Mr. Jeyakumar (For R6 & R7)
Additional Government Pleader
ORDER
(through video conference)
Heard Mr. S. Vishnuvardhan, Learned Counsel for the Petitioner,
Mr. G.Dharmaraja, Learned Counsel appearing for the Second, Third and
Fifth Respondents, Mr. Dilip Kumar, Learned Standing Counsel appearing
for the Fourth Respondent and Mr. Jeyakumar, Learned Additional
Government Pleader appearing for the Sixth and Seventh Respondents, and
perused the materials placed on record, apart from the pleadings of the
parties.
2. The Central Government by Notification No. S.O 30(E) dated 08.01.2011
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W.P. (MD) No.20284 of 2014
in exercise of the powers conferred by Section 1(3)(b) of the Employees
Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter
referred as 'the EPF Act' for- short) specified the Municipal Councils and
Municipal Corporations constituted under Article 243-Q(1)(b) and (c) of the
Constitution of India employing 20 or more persons as a class of
establishments to which that Act shall apply with effect from the date of its
publication in the Official Gazette. In furtherance thereto, the Fourth
Respondent by notice in proceedings No.Enf.D4/TN/TR/81722/SRO-
TRY/2013 dated 10.12.2013 and the Fifth Respondent by notice in
proceedings No. TN/EO/KUM/81722/2014 dated 17.11.2014 called upon the
Petitioner, viz., Mannarkudi Municipality, which is a Municipal Council in
terms of Article 243-Q(1)(b) of the Constitution of India to submit the
relevant records for the purpose of assessment under the provisions of the
EPF Act. At that stage, the Petitioner has filed this Writ Petition challenging
the aforesaid notification dated 08.01.2011 issued by the First Respondent
and the consequential notices dated 10.12.2013 and 17.11.2014 received
from the Fourth and Fifth Respondents respectively contending that there are
separate provisions for payment of provident fund to its employees under the
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W.P. (MD) No.20284 of 2014
provisions of the Tamil Nadu District Municipalities Act, 1920, governing it,
which are still in force.
3. In this context, reference must be made to Section 1(3) of the EPF Act
which itself provides that it is subject to the provisions of Section 16 of the
EPF Act. The relevant portions of Section 16(1)(b) and (c) of the EPF Act are
extracted below:-
“16. Act not to apply to certain establishments-(1) This Act
shall not apply-....
(b) to any other establishment belonging to or under the
control of the Central Government or a State Government and
whose employees are entitled to the benefit of contributory
provident fund or old age pension in accordance with any
Scheme or rule framed by the Central Government or the State
Government governing such benefits; or
(c) to any other establishment set up under any Central,
Provincial or State Act and whose employees are entitled to the
benefits of contributory provident fund or old age pension in
accordance with any scheme or rule framed under that Act
governing such benefits.”
It would be evident on a reading of the aforesaid statutory provision that an
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establishment stands automatically exempted from the provisions of the EPF
Act, if the following twin conditions are satisfied:-
(i) The establishment must be either 'belonging to' or 'under the control of
'the Central or the State Government, or must have been 'set up' under
any Central, Provincial or State Act; and
(ii) The employees of such an establishment should be entitled to the
benefit of contributory provident fund or old age pension in
accordance with any scheme or rule framed by the Central Government
or the State Government or under the Act under which the
establishment has been created governing such benefits.
This position of law has been highlighted by the Hon'ble Supreme Court of
India in the decision in Yeshwant Gramin Shikshan Sanstha -vs- Assistant
Provident Fund Commissioner [(2017) 5 SCC 579] and Pawan Hans
Limited -vs- Aviation Karmachari Sanghatana (Judgment dated 17.01.2020
in Civil Appeal No. 353 of 2020).
4. In response to the query raised by this Court, Learned Counsel for the
Petitioner, on instructions, submits that the Tamil Nadu Municipal Services
Pension Rules, 1970 (hereinafter referred to as the 'TNMSP Rules' for short)
issued by the Government of Tamil Nadu by G.O. Ms. No. 1425, Health &
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Family Welfare Department Department dated 17.06.1977 has been made
applicable to regular employees in the services of the Petitioner. In this
regard, reference may be made to Rule 2 of the TNMSP Rules, which is
extracted below:-
“2. Application:-
(i) These rules shall apply to officer and servants under all
Municipal Councils and the Township Committees constituted
under the Tamil Nadu District MunicipalitiesAct, 1920 (Tamil
Nadu Act V of 1920) or the committee to which the provisions of
the Tamil Nadu District Municipalities Act, 1920 (Tamil Nadu
Act V of 1920), have been extended the minimum of whose scale
of pay is Rs. 90 per mensem and above and included in the
services mentioned below:-
(a) Tamil Nadu Municipal General Service.
(b)Tamil Nadu Municipal Engineering and Waterworks
Service.
(c) Tamil Nadu Municipal Town Planning Service.
(d) Tamil Nadu Municipal Public Health and Medical
Service.
(ii) These rules shall, at their option, apply to the members of
the Tamil Nadu Municipal Educational Service who retired
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between 14-1-1970 and 31-5-1970.
(iii) These rules shall not affect the pension already admissible
under Article 802 of the Tamil Nadu Pension Code, i.e. Pension
of Local Fund Employees subject to the pension scheme and
who do not-come within the scope of these rules.
(iv) The Government may, from time to time, extend the
application of these rules for other categories of employees
from such date as may be specified in this behalf.”
It has been pointed out that the benefits granted to those employees is
contained in Rule 7 of the TNMSP Rules, which reads as follows:-
"7. Rules applicable to Government servants to apply:-
(a) Claim to pension including gratuity and family pension of an
employee under these rules will be regulated by the rules in force
applicable to Government servants at the time when the employee
retires or is discharged from the service of the Council. The
provisions of the Tamil Nadu Pension Code, as amended from time
to time, shall apply mutatis mutandis insofar as they are not
inconsistent with these rules.
(b) The rules relating to the preparation of pension papers and
other connected matters and forms in vogue applicable to
Government servants shall generally be adopted in the case of
employees.
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(c) On the coming into force of these rules, the rules relating to
the grant of pensions to the employees of the council's issued under
the Tamil Nadu District Municipalities Act,1920 (Tamil Nadu Act V
of 1920) shall cease to apply to employees governed by these
rules."
This leads to the question as to whether the exemption under Section 16 of
the EPF Act would be available to the Petitioner on the facts of this case?
5. It is not disputed that the exemption under the EPF Act would be available
in respect of those employees of the Petitioner to whom the TNMSP Rules
apply. At the same time, apart from the regular employees, the Petitioner has
been entrusting civil works to contractors who have been engaging labour in
that regard. It is also not out of place to take judicial notice of the fact that
Municipalities like the Petitioner have been engaging manpower through
self-help groups and also out sourced their work through contractors who
have engaged workers for the same. However, the workers, who have been
engaged through these contractors employed by the Petitioner, are not
entitled to any benefit under the TNMSP Rules. It must, at once, be pointed
out here that in terms of Section 2(f)(i) of the EPF Act, the employees of an
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establishment are those persons who satisfy the following conditions:-
(a) Those who have been employed for wages in any kind of work,
manual or otherwise. It does not matter whether that person is
employed by or through a contractor.
(b) Those whose employment is 'in or in connection with' the work of the
establishment.
This would obviously mean that on publication of Notification No. S.O.
30(E) dated 08.01.2011 by the Central Government, any person employed by
or through a contractor in connection with the work of the establishment of
the Petitioner would be an 'employee' falling within coverage under the EPF
Act.
6. It would be necessary here to refer to the decision of the Hon'ble Supreme
Court of India Yeshwant Gramin Shikshan Sanstha -vs- Assistant Provident
Fund Commissioner [(2017) 5 SCC 579], where it has been observed as
follows:-
"38. As we have held that the establishment of the appellant
fulfills the twin conditions specified in Section 16(1)(b), it must
follow that the same is exempted from the application of the
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provisions of the Central Act. In the present case, however, it has
been found by the authority concerned and the Tribunal, that the
16 part-time employees working in the establishment of the
appellant were not covered by the State CPF Scheme applicable
to the other permanent employees of the establishment inasmuch
as Rule 20 does not cover the part-time employees working in the
school, in case they are not doing full-time load of work. True it
is that the said finding of fact cannot be overturned. Even so, is it
possible to uphold the decision of the authority as confirmed by
the Tribunal and the High Court that the appellant is liable to
pay towards the provident fund under the Central Act in respect
of its part-time employees? Intrinsic in that direction, is that the
provisions of the Central Act are invoked against the
establishment of the appellant. That is impermissible. As
aforesaid, Section 16 of the Central Act makes it abundantly
clear that the provisions of the Central Act will have no
application to the establishment, if covered by one of the
excepted category provided therein. Notably, the exemption is for
the establishment as a whole and for all purposes, from the
application of the Central Act. Once the establishment is covered
by the excepted category specified in Section 16, to get
exemption, it is incomprehensible that the provisions of the
Central Act can be invoked against such establishment on the
specious reasoning that few (16 in this case) part-time employees
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working thereat were not covered by the CPF Scheme of the State
Government, as applicable to rest of its employees.
39. It is not possible to countenance a situation that although the
establishment enjoys exemption from application of the
provisions of the Central Act, it is still liable to be proceeded in
respect of its few (16) part-time employees. That would lead to
an incongruous approach, not envisaged by the Central Act.
Taking any other view would result in rewriting of the provisions
of the Central Act to mean that although the establishment is
exempted from the application of the provisions of the Central
Act, yet it would be open to the Central authorities to proceed
against such establishment in certain situations. In our opinion,
once the establishment qualifies for exemption of application of
the provisions of the Central Act, there is no way that the
authorities under the Central Act can exercise authority over it
or call upon the establishment to comply with the provisions of
the Central Act, unless the exemption of the establishment is
withdrawn or lifted de jure. Section 16 of the Central Act does
not envisage a concept of partial exemption of application of the
provisions of the Central Act in respect of employees, but the
exemption operates qua the establishment for all purposes."
It appears that a different note has been struck by the Hon'ble Supreme Court
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of India in Pawan Hans Limited -vs- Aviation Karmachari Sanghatana
(Order dated 17.01.2020 in Civil Appeal No. 353 of 2020) by applying the
same twin test as follows:-
“7.2 ....In our view, the Company does not satisfy the second test,
since the members of the Respondent-Union and other similarly
situated contractual workers were not getting the benefits of
contributory provident fund under the PF Trust Regulations
framed by the Company, or under any Scheme or any rule framed
by the Central Government or the State Government.
Consequentially, the exemption under Section 16 of EPF Act
would not be applicable to the Appellant-Company.”
It is, however, significant to note here that ultimately the employer in that
case was required to extend provident fund benefits to the contractual
workers not covered under the provident scheme that was applicable to the
regular employees so that there is uniformity in the conditions of service of
all employees in that establishment.
7. In the present case, the regular employees of the Petitioner have been
receiving benefits under the TNMSP Rules even before the impugned
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notification dated 08.01.2011 came into force, and if it is construed that the
aforesaid notification would have the effect of depriving them of those vested
rights, it would lead to unintended adverse consequences of disrupting the
pre-existing arrangement of financial affairs. On the other hand, if it is held
that those employees of the Petitioner who are not entitled to the benefits
under the TNMSP Rules cannot be covered by the EPF Act as well despite
the said notification which has come into force on 08.01.2011, it would
defeat the avowed objects of the beneficial social welfare legislation made
for the protection of weaker sections of society, viz., workmen who had to
eke out their livelihood from the meagre wages they received after toiling
hard for the same, as highlighted by the Hon'ble Supreme Court of India in
Daily Partap -vs- Regional Provident Fund Commissioner, Punjab [(1998)
8 SCC 90]. At this juncture, it must be taken cognizance that the
Government of Tamil Nadu has realized this anamoly prevailing in the
Municipalities across the State and have issue directions to the concerned
authorities and it would be necessary to refer to the correspondence in that
regard, which are as follows:-
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(i) The Commissioner of Municipal Administration by Letter No. 57084/
2011/L3 dated 21.10.2014 addressed to all Commissioners of
Municipal Councils has communicated the decision of the State
Government that though the Municipalities/Corporations take up
works through private Contractors, the authorities concerned should
ensure that the Contractors pay the PF subscription of their employees
duly to the PF organization, otherwise, the responsibility for the same
will be fixed on the concerned Municipalities/Corporations, which is
the principal employer, if the Contractors default in this regard.
(ii) The Government of Tamil Nadu by Letter No.18823/MC5/2016-1,
dated 19.08.2016, sent to the Commissioner of Municipal
Administration required all the Municipal Councils in the State to
comply with the provisions of the EPF Act, to withdraw the Court
cases, in addition to share the details of Contractors/contracts awarded
by them in the principal employer portal
available in the website of Employees Provident Fund Organization to
facilitate the extension of social security benefits to all eligible
persons.
(iii) Letter ROC No.1819/2016/L3, dated 19.10.2016, was sent by the
Commissioner of Municipal Administration to all Municipal
Commissioners to take necessary action in connection with
implementation of the EPF Act and the schemes framed thereunder in
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respect of employees of Municipalities and Corporations and send the
report directly to the Employees Provident Fund Organization
concerned.
(iv) The Government of Tamil Nadu in Letter No. 14070/ME.3/2016-4,
dated 20.12.2016 sent to the Commissioner of Municipal
Administration that the Notification No. S.O. 30(E) dated 08.11.2011
issued by the Central Government shall cover all employees of
establishments as per definition of 'employee' under Section 2(f) of the
EPF Act excluding the employees who are getting benefits of provident
fund and pension according to TNMSP Rules of the State Government
or municipal laws, etc., and that the benefits under the EPF Act have to
be extended to all eligible employees.
It also requires to be placed on record that the Ministry of Labour and
Employment, Government of India by Letter No. S-35025/15-88-SS-II dated
08.01.1989 sent to the Central Provident Fund Commissioner has issued
instructions on similar lines, which is extracted below:-
"(iv) There may be establishments which employ large number of
casual/contingent staff who are not entitled to the benefit of
provident fund or pension. The casual/contingent staff of such
establishment will continue to be covered under the Act, but their
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regular employees who are entitled to the benefit of provident
fund pension should be excluded from the purview of the Act."
It would be useful here to extract from the authoritative pronouncement of
the Constitution Bench of the Hon'ble Supreme Court of India in Sant Ram
Sharma -vs- State of Rajasthan (AIR 1967 SC 1910), which reads as
follows:-
"7. ....It is true that Government cannot amend or supersede
statutory rules by administrative instructions, but if the rules are
silent on any particular point, Government can fill up the gaps
and supplement the rules and issue instructions not inconsistent
with the rules already framed."
Viewed from this perspective, the authorities of the Employees' Provident
Fund Organization cannot be found fault for having initiated proceeding
under the EPF Act relying on the instructions from the Government for
determining the liability of provident fund dues under the EPF Act in respect
of the workers and employees in the establishment of the Petitioner for the
relevant period, who are not entitled to the benefits under the TNMSP Rules.
8. In this backdrop, it is represented by the Learned Counsel for the Petitioner
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that after receipt of the aforesaid directives from the Government of Tamil
Nadu and other authorities of the Municipal Administration Department, it
has been ensured by the Petitioner to provide specific clauses in the contracts
entered with third parties involving engagement of labour to get themselves
registered with the Employees' Provident Fund Organization so that the
contributions towards provident fund could be made in respect of workers
and employees engaged through them. At the same time, it is also explained
that for the period from 08.01.2011 till new contracts providing such clauses
had been entered, there have been many cases where the Contractors had not
subjected themselves to the EPF Act and it is in respect of those cases that the
Petitioner is finding it difficult to provide necessary details to the authorities
under the EPF Act.
9. Having due regard to the rival submissions made by the Learned Counsel
for both sides, it would be relevant to extract Section 21 of the Contract
Labour (Regulation and Abolition) Act, 1970, as follows:-
“21. Responsibility for payment of wages:-
(1) A contractor shall be responsible for payment of wages to
each worker employed by him as contract labour and such
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wages shall be paid before the expiry of such period as may be
prescribed.
(2) Every principal employer shall nominate a representative
duly authorized by him to be present at the time of disbursement
of wages by the contractor and it shall be the duty of such
representative to certify the amounts paid as wages in such
manner as may be prescribed.
(3) It shall be the duty of the contractor to ensure the
disbursement of wages in the presence of the authorized
representative of the principal employer.
(4) In case the contractor fails to make payment of wages within
the prescribed period or makes short payment, then the
principal employer shall be liable to make payment of wages in
full or the unpaid balance due, as the case may be, to the
contract labour employed by the contractor and recover the
amount so paid from the contractor either by deduction from
any amount payable to the contractor under any contract or as
a debt payable by the contractor.”
That apart, Rules 71 and 72 of the Tamil Nadu Contract Labour (Regulation
and Abolition) Rules, 1975, provides as follows:-
“71. A notice showing the wage period and the place and time of
disbursement of wages shall be displayed at the place of work
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and a copy sent by the contractor to the principal employer
under acknowledgement.
72. The principal employer shall ensure the presence of his
authorised representative at the place and time of disbursement
of wages by the contractor to workmen and it shall be the duty of
the contractor to ensure the disbursement of wages in the
presence of such authorised representative.”
It is imperative from these statutory provisions that the Petitioner has to
ensure that those of its employees, who are not covered by the TNMSP Rules,
are extended the benefits under the EPF Act with effect from 08.01.2011
when the said Notification issued by the Central Government came into force
and that the records maintained by the Contractors for the wages disbursed to
the contract labour, when they were employed in the establishment of the
Petitioner, would be the basis for determining the contribution of provident
fund dues under the EPF Act. As a corollary, it would follow that the
Petitioner as Principal Employer, who ought to have verified that the contract
labour engaged through Contractors had been paid eligible amount of wages
in time, cannot shirk responsibility to find out the employees and workers
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concerned for remitting dues under the EPF Act for the relevant period, and
the Petitioner would be entitled for this purpose to make an application under
Section 7-A(2) of the EPF Act before the concerned authority in the
Employees Provident Fund Organization to issue summons to the Contractors
to produce evidence regarding the details of the employment of the
contractual workers, and necessary orders would have to be passed in that
regard taking into consideration the dictum laid down by the Hon'ble
Supreme Court of India in Food Corporation of India -vs- Provident Fund
Commissioner [(1990) 1 SCC 68], where it has been ruled as follows:-
"9. It will be seen from the above provisions that the
Commissioner is authorised to enforce attendance in person and
also to examine any person on oath. He has the power requiring
the discovery and production of documents. This power was
given to the Commissioner to decide not abstract questions of
law, but only to determine actual concrete differences in
payment of contribution and other dues by identifying the
workmen. The Commissioner should exercise all his powers to
collect all evidence and collate all material before coming to
proper conclusion. That is the legal duty of the Commissioner. It
would be failure to exercise the jurisdiction particularly when a
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party to the proceedings requests for summoning evidence from
a particular person."
In short, the real focus has to be on identifying the contractual workers, who
had been engaged through the Contractors, by relevant evidence and
ascertain the exact amount towards contribution for provident fund in respect
of each of them. There is no gainsaying that the enforcement machinery
provided under the EPF Act should not be converted as a ploy just to fill up
the coffers of the Employees Provident Fund Organization, where already
several crores of rupees are reportedly lying unclaimed, loosing sight of the
beneficent objects of that labour welfare enactment.
10. In view of the foregoing discussion, the proper recourse to be followed
in this case is to require the Petitioner as well as the Contractors engaged by
it to give details of the contract labour engaged from 08.01.2011 onwards
with full particulars of their period of employment and actual amount of
wages paid to them. After carrying out the aforesaid exercise of identifying
the contractual workers engaged by the Petitioner through Contractors for the
period from 08.01.2011 onwards, the concerned authority of Employees'
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Provident Fund Organization shall determine the contribution amount that
would have to be paid in respect of each of the contractual workers engaged
in the establishment of the Petitioner for the relevant period. It shall be
ensured that full opportunity of personal hearing is afforded to the Petitioner
and all other persons concerned and a reasoned order shall be passed on
merits and in accordance with law dealing with each of the contentions raised
and the decision taken shall be communicated to the concerned parties under
written acknowledgment.
In the result, the Writ Petition is disposed on the aforesaid terms.
Consequently, the connected Miscellaneous Petitions are closed. No costs.
30.04.2021
Index: Yes/No
Internet: Yes/No
ta
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W.P. (MD) No.20284 of 2014
To
1.The Secretary,
Department of Ministry of Labour & Employment,
New Delhi.
2.The Central Provident Fund Commissioner,
Employees' Provident Fund Organisation,
Bhavishya Nadhi Bhawanm
14, Bhikaji Cama Place,
New Delhi – 110 066.
3.The Commissioner,
Employment Provident Fund Organization,
Trichy Region, Trichy.
4.The Assistant Provident Fund Commissioner,
Employment Provident Fund Organization,
Trichy Region, Trichy.
5.The Enforcement Officer,
Employment Provident Fund Organization,
The District Office,
82G, Bishop House Extension,
Kamaraj Road, Kumbakonam.
6.The Commissioner of Municipal Administration,
Ezhilagam, Annexe VI Floor,
Chepauk, Chennai - 600 005.
7.The Additional Chief Secretary to Government,
Municipal Administration and Water Supply Department,
Secretariat, Fort St. George,
Chennai - 600 009.
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W.P. (MD) No.20284 of 2014
P.D. AUDIKESAVALU, J.
ta/SRM
Copy to
The Commissioner,
Mannarkudi Municipality,
Mannarkudi, Thiruvarur District.
W.P. (MD) No. 20284 of 2014
30.04.2021
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