Madras High Court
The Commissioner vs The Secretary on 30 April, 2021
W. P. (MD) No. 15485 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.04.2021
CORAM
THE HON'BLE MR. JUSTICE P.D. AUDIKESAVALU
W.P.(MD) No. 15485 of 2014
and
M.P.(MD) Nos. 1 and 2 of 2014
The Commissioner,
Nagapattinam Municipality,
Nagapattinam. ... Petitioner
-vs-
1. The Secretary,
Department of Ministry of Labour and Employment,
New Delhi.
2. The Central Provident Fund Commissioner,
Employees' Provident Fund Organisation,
Bhavishya Nadhi Bhawan,
14, Bhikaji Cama Place,
New Delhi – 110 066.
3. The Commissioner,
Employment Provident Fund Organisation,
Trichy Region,
Trichy.
4. The Assistant Provident Fund Commissioner,
Employment Provident Fund Organisation,
Trichy Region,
Trichy.
1/22
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W. P. (MD) No. 15485 of 2014
5. The Commissioner of Municipal Administration,
Ezhilagam,
Annexe VI Floor,
Chepauk, Chennai - 600 005.
6. 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
(R5 and R6 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 dated 08.01.2011 passed by the First Respondent and impugned
orders passed in Letter No. Enf. D3/TN/TR/81720/SRO-TRY/2013 dated
10.12.2013 and Letter No. Enf-D3/TN/TR/81720/SRO-TRY/2014 dated
13.08.2014 passed by the Fourth Respondent respectively and quash the same.
For Petitioner : Mr. S. Vishnuvardhan
for Mr. K.K.Ramakrishnan
For Respondents : Mr. G. Dharmaraja (For R2 to R4)
For M/s. VS Karthi Associates
Mr. M. Jayakumar
Additional Government Pleader (For R5 & R6)
Mr. S. Jeyasingh (For R1)
Senior Panel Counsel
2/22
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W. P. (MD) No. 15485 of 2014
ORDER
(through video conference)
Heard Mr. S. Vishnuvardhan representing Mr. K. K. Ramakrishnan,
Learned Counsel for the Petitioner, Mr. S. Jeyasingh, Learned Senior Panel
Counsel for the First Respondent, Mr. G. Dharmaraja of M/s. VS Karthi
Associates, Learned Counsel for the Second to Fourth Respondents,
Mr. M.Jayakumar, Learned Additional Government Pleader for the Fifth and
Sixth 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 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 notices in proceedings No. Enf.
D3/TN/TR/81720/SRO-TRY/2013 dated 10.12.2013 and No. Enf-
D3/TN/TR/81720/SRO-TRY/2014 dated 13.08.2014 called upon the Petitioner,
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viz., Nagapattinam 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 13.08.2014 received from the Fourth Respondent contending that
there are separate provisions for payment of provident fund to its employees under
the 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
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W. P. (MD) No. 15485 of 2014
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
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 decisions 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
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W. P. (MD) No. 15485 of 2014
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 & 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
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W. P. (MD) No. 15485 of 2014
Tamil Nadu Municipal Educational Service who retired 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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W. P. (MD) No. 15485 of 2014
(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 establishment are those persons who
satisfy the following conditions:-
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(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 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
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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 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
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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 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
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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 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
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W. P. (MD) No. 15485 of 2014
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:-
(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
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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 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
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W. P. (MD) No. 15485 of 2014
will continue to be covered under the Act, but their 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
that after receipt of the aforesaid directives from the Government of Tamil Nadu
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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 wages
shall be paid before the expiry of such period as may be prescribed.
(2) Every principal employer shall nominate a representative duly
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W. P. (MD) No. 15485 of 2014
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 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
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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 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
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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 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
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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' 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.
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In the result, the Writ Petition is disposed on the aforesaid terms.
Consequently, the connected Miscellaneous Petitions are closed. No costs.
30.04.2021
Maya/SRM
Index: Yes/No
To
1. The Secretary
Department of Ministry of Labour and Employment
New Delhi.
2. The Central Provident Fund Commissioner
Employees' Provident Fund Organisation
Bhavishya Nadhi Bhawan
14, Bhikaji Cama Place
New Delhi – 110 066.
3. The Commissioner
Employment Provident Fund Organisation
Trichy Region
Trichy.
4. The Assistant Provident Fund Commissioner
Employment Provident Fund Organisation
Trichy Region
Trichy.
5. The Commissioner of Municipal Administration,
Ezhilagam, Annexe VI Floor,
Chepauk, Chennai - 600 005.
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W. P. (MD) No. 15485 of 2014
P.D. AUDIKESAVALU, J.
Maya/SRM
6. The Additional Chief Secretary to Government,
Municipal Administration and Water Supply Department,
Secretariat, Fort St. George,
Chennai - 600 009.
Copy to
The Commissioner,
Nagapattinam Municipality,
Nagapattinam District.
W.P.(MD) No. 15485 of 2014
Dated : 30.04.2021
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