THE HON'BLE SRI JUSTICE A.V. SESHA SAI WRIT PETITION No.12900 of 2010 Between:
V.R. College, Nellore, Rep. by its Secretary & Correspondent Sri Anam Vivekananda Reddy PETITIONER AND
1. The Provident Fund Appellate Tribunal, New Delhi, rep. by its Registrar, and others.
RESPONDENTS ORDER:
This writ petition is filed under Article 226 of the Constitution of India seeking the following relief.
“….to issue a Writ, Order or direction, more particularly a Writ in the nature of Certiorari, calling for the records relating to and connected with impugned order dated 10.05.2010 made in ATA No.698(1)2006 of the 1st respondent, confirming the impugned order dated 08/13.03.2006 in Proceedings No.AP/SRO/CP/ENF/NLR/ AP/7728/2006/4545, passed by the respondent No.2, as arbitrary, illegal, liable to be quashed in view of judgment reported in AIR 1988 SC 1700 and against the principles of natural justice and also violate the article 14 and 16 of the Constitution of India…”
2. The petitioner is an Educational institution at Nellore, against which the Assistant Provident Fund Commissioner, the 2nd respondent herein, initiated proceedings under the provisions of the Employees’ Provident Funds Miscellaneous Provisions Act, 1952 (hereinafter called ‘the Act’) with regard to part-time lecturers of the petitioner-college. During the course of enquiry the 2nd respondent framed the following questions.
(i) Whether the part-time lecturers can be considered as the employees of the establishment?
(ii) If yes, whether the part-time lecturers qualified to be eligible for the benefits of the Act?
3. The 2nd respondent passed an order vide proceedings No.AP/SRO/CP/ENF/NLR/ AP/7728/2006/4545, dated 08/13.03.2006 under Section 7-A of the Act, assessing an amount of Rs.7,27,230/- towards E.P.F. contributions payable to respondents 3 to 17 herein. Challenging the said order dated 8/13.03.2006, the petitioner preferred an appeal in ATA No.698(1)2006 before the Employees’ Provident Fund Appellate Tribunal (hereinafter called ‘the Tribunal’), New Delhi under Section 7-I of the Act. The Tribunal, by virtue of an order dated 10.05.2010, dismissed ATA No.698(1)2006, confirming the order passed by the 2nd respondent dated 8/13.03.2006.
4. Calling in question the validity and the legal acceptability of the said orders passed by the Appellate Tribunal, confirming the order of the 2nd respondent, the present writ petition has been instituted.
5. This Court, while issuing Rule Nisi on 9.06.2010, passed the following interim order in W.P.M.P.No.16250 of 2010.
“Sri R.N.Reddy learned Standing Counsel, takes notice for respondents 1 and 2 and Sri V.R. Reddy Kovvuri, learned counsel, takes notice for respondents 3 to 17.
During the hearing, it has come out that the arrears payable by the petitioner have been recovered. Learned counsel for the petitioner raised an apprehension that respondents 1 and 2 may initiate prosecution against the management of the petitioner for non-compliance of the provisions of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, for the past period. Inasmuch as the arrears have already been paid, I find it appropriate to restrain respondents 1 and 2 from initiating prosecution against the petitioner, subject however, to the condition that the petitioner shall comply with the statutory requirements qua respondents 3 to 17 for the future period, without prejudice to its contentions raised in this writ petition.
Subject to the above directions, the application is disposed of.”
Responding to the Rule Nisi issued by this Court, a counter affidavit is filed by respondents 3, 11 and 15, resisting the relief sought in the writ petition.
6. Heard Sri S. Ashok Anand Kumar, learned counsel for the petitioner, Sri R.N. Reddy, learned Standing Counsel for the 2nd respondent and Sri V.R. Reddy Kovvuri, learned counsel for unofficial respondents 3 to 17, apart from perusing the material available on record.
7. Contentions of the learned counsel for the petitioner, Sri S. Ashok Anand Kumar –
a) Part-time lecturers are paid on hourly basis and they perform work in more than one college at a time.
b) No part-time lecturers paid on hourly basis in any aided or Government college, are paid E.P.F benefits and they cannot be termed as labourers working in connection with the Establishment, and the principle laid down in Railway Employees Cooperative Bank
[1]
Society Ltd. Vs. Union of India cannot be applied to the present case, in view of the judgment rendered by the Hon'ble Supreme Court reported in A. Sundarambal v. Government of Goa, Daman &
[2]
Diu .
c) The request of respondents 3 to 17 for regularization was rejected by the Court in W.P.No.35079, 35281/1998 & 4467 of 2000 dated 24.10.2000.
d) The 2nd respondent erred in applying the law laid down in Silver Jubilee Tailoring House v. Chief Inspector of Shops and
[3]
Establishments, ; People 's Union for Democratic Rights v.
[4] [5]
Union of India ; Mr. Karthiyayni and Ors. vs. Union Of India ;
Management, Sacred Heart Convent High School, Panruti, South
[6]
Arcot v. State of Tamil Nadu and ors., ; Mrs. Pramodini Patkar v.
[7]
Indian Cancer Society and anr. ; Uma Chopra v. R.N. Jindal &
[8]
anr. , in view of the judgment of the Hon’ble Apex Court reported in A. Sundarambal v. Government of Goa, Daman & Diu case (2 supra).
e) The part-time lecturers working on the consolidated pay in the petitioner’s college alone were paid the benefits of Provident Fund.
f) A Full Bench of this Court by virtue of interim order dated 10.07.2002 in W.P.No.27295 of 1998 and batch categorically held that continuance of the petitioners therein shall be subject to result of the writ petitions and the petitioners cannot claim any equities for their continuance in service.
g) The 1st respondent did not consider the documents filed by the petitioner along with the appeal and arrived at a wrong conclusion.
h) Adequate opportunity was not given to the petitioner to substantiate its claim, which tantamounts to violation of principles of natural justice.
i) The conclusion arrived at by the 2nd respondent to the effect that the part-time lecturers working in more than one college are entitled to provident fund is erroneous.
In support of his submissions and contentions the learned counsel places reliance on the judgments reported in A. Sundarambal v. Government of Goa, Daman & Diu (2 supra); Silver Jubilee Tailoring House and ors., v. Chief Inspector of Shops and Establishments and anr.,(3 supra) Regional Provident Fund Commissioner v. Sanatan Dharam Girls Secondary School and
[9]
ors., ; Mrs. Pramodini Patkar v. Indian Cancer Society and anr. (7 supra); Uma Chopra v. R.N. Jindal & anr. (8 supra); Miss A. Sundarambal v. Government of Goa, Daman and Diu and ors. (2 supra); Management, Sacred Heart Convent High School, Panruti, South Arcot v. State of Tamil Nadu and ors. (6 supra); M.S.
[10]
Venkitaraman v. Labour Court, Ernakulam and ors.
[11]
Medical Officer’s Association v. E.S.I.C. and anr.,
[12]
; E.S.I.C.
and State of Punjab v. The Labour Court Jullundur and ors. .
8. Contentions of Sri R.N. Reddy, learned counsel for respondents 1 and 2.
a) The petitioner falls under Section 1 (3) (b) of the Act r/w the notification issued in GSR 591 dated 21.06.1982, which was upheld by the Hon’ble Apex Court in the judgment in M/s. D.A.V.
College & ors., v. Regional Provident Fund Commissioner and
[13]
ors., .
b) The petitioner is covered by the Act with code No.AP/7728.
c) There cannot be any distinction between the consolidated employees and part-time employees under Section 2(f) of the Act, and it does not make any distinction at all.
d) The petitioner never agitated anything in terms of Section 16 of the Act.
In support of his contentions, the learned counsel for respondents 1 and 2 places reliance on the judgment reported in Railway Employees Cooperative Banking Society Ltd., v. The Union of India and ors. (1 supra).
9. Contentions of Sri V.R. Reddy Kovvuri, learned counsel for unofficial respondents 3 to 17.
a) Principal of the petitioner-college issued a letter dated 9.07.2007, which clearly shows that the benefit under the present enactment has been extended to the unofficial respondents also.
b) Identically situated part-time lecturers and the employees working on consolidated basis have been extended the benefit under the enactment and as such, the action of the respondents is discriminatory and violative of Article 14 of the Constitution of India.
c) The unofficial respondents, who are working on part-time basis, are also entitled for the benefits under the legislation.
In support of his contentions, the learned counsel relies upon the judgments in M/s. D.A.V. College & ors., v. Regional Provident Fund Commissioner and ors. (13 supra) and Railway Employees Cooperative Banking Society Ltd., v. The Union of India and ors., (1 supra).
10. In the light of the pleadings, submissions and contentions, now the issues which this Court is called upon to deal with and to answer are -
1. Whether the unofficial respondents, who are part-time lecturers fall under the definition of the employee under Section 2(f) of the Act and whether the petitioner falls under the definition of establishment as per Section 1(3)(b) of the Act ?
2. Whether the petitioner is justified in not extending the benefit to the unofficial respondents/part-time lecturers while extending the same for the employees working on consolidated basis ?
3. Whether the orders passed by respondents 1 and 2 are sustainable and tenable and whether the same warrant any interference of this Court under Article 226 of the Constitution of India ?
11. To appreciate the rival submissions and contentions, it is necessary and appropriate to refer to the relevant provisions of the Act.
According to Section 2(f) of the Act, the term ‘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. Section 2(e) defines ‘employer’. Section 2(e) (ii) is relevant for the present writ petition and as per the said provision ‘employer’ means, in relation to any other establishment, the person who, or the authority which, has the ultimate control over the affairs of the establishment, and where the said affairs are entrusted to a manager, managing director or managing agent, such manager, managing director or managing agent. As per Section 1(3) the legislation is applicable to the factories and other establishments employing 20 or more persons.
12. In the instant case, the Central Government issued a notification vide GSR 591, dated 21.06.1982, extending the applicability of the legislation to the educational institutions also. The Hon’ble Apex court in the case of M/s. D.A.V. College & ors., v. Regional Provident Fund Commissioner and ors., (13 supra) held that the present Act of 1952 is applicable to Educational institutions also. Therefore, it can be safely concluded that this enactment is applicable to the petitioner-educational institution also. It is pertinent to mention that there is absolutely no evidence on record to show that the petitioner institution is exempted under the provisions of Section 16 of the Act.
13. In fact, dealing with the said contention on the part-time employees, the Hon’ble Apex Court in Silver Jubilee Tailoring House and ors., v. Chief Inspector of Shops and Establishments and anr., (3 supra) at paragraph 37 held as under.
“That the workers are not obliged to work for the whole day in the shop is not very material. There is of course no reason why a person who is only employed part time, should not be a servant and it is doubtful whether regular part time service can be considered even prima facie to suggest anything other than a contract of service. According to the definition in Section 2(14) of the Act, even if a person is not wholly employed, if he is principally employed in connection with the business of the shop, he will be a ‘person employed’ within the meaning of the sub-section. Therefore, even if he accepts some work from other tailoring establishments or does not work whole time in a particular establishement, that would not in any way derogate from his being employed in the shop where he is principally employed.”
14. Following the said judgment of the Hon’ble Supreme Court, the High court of Rajasthan in Railway Employees Cooperative Banking Society Ltd., v. The Union of India and ors., (1 supra) at paragraphs 14 and 15 held as follows:
“In the present case, Kanhaiya Lal, Nand Kishore and Ram Bharose are no doubt part-time employees and that all the four persons are not employed directly in connection with the work of the establishment but these facts alone would not, in our opinion, take these persons out of the ambit of the term employee’ as defined in Section 2 (f) of the Act. There is nothing in the definition to show that the employee must be a whole-time one. Thus the employee may be a part-time employee. Then again the definition envisages that the person may be employed in any kind of work manual or otherwise in the establishment or in connection with the work of the establishment.
In silver Jubiliee Tailoring House v. Chief Inspector of Shops and Establishments (1974 Lab IC 133) (SC) (supra) while dealing with the definition of the term ‘person employed’ contained in Andhra Pradesh (Telangana Area) Shops and Establishments Act (10 of 1951), Mathew J., as he then was, speaking for the Court, observed that there is no reason why a person who is only employed part-time should not be a servant and it is doubtful whether regular part-time service can be considered even prima-facie to suggest anything other than a contract of service. The learned Judge went on to observe that according to the definition contained in Sec. 2 (14) of the Act even if a person is not wholly employed, if he is principally employed in connection with the business of the shop, he will be a ‘person employed’ within the meaning of the sub-section. It is pertinent to point out that ‘person employed’ was defined in the Shops and Establishments Act as ‘a person wholly or principally employed in connection with the business of the shop.’ The definition of the words ‘person employed’ was thus a restricted one inasmuch as he must be a person principally employed in connection with the business of the shop. However, the definition of the word ‘employee’ contained in our Act is not restricted inasmuch as there are no words ‘wholly or principally employed contained therein, and it is further clear that the person need not be employed in connection with the work of the establishment but he may be employed in any kind of work manual or otherwise in the establishment. Thus, this wider definition of ‘employee’, in our opinion, embraces a part-time employee as also an employee who is engaged for any work in the establishment which may not necessarily be connected with the work of the establishment. It is true that none of these four persons has been employed in connection with the work of the establishment which is banking business. But the definition of the term does not envisage that only those employees who are doing the banking work in the establishment are employees and nobody else. In this connection, reference may be made to the Ahmedabad Mfg. & Calico Ptg. Co. Ltd. V. Ramtahel Ramanand, AIR 1972 SC 1598: (1972 Lab IC 864) wherein while dealing with the definition of the term ‘employee’ contained in Bombay Industrial Relations Act (11 of 1947) it was held by their Lordships that the workers in order to come within the definition of the term ‘employee’ need not necessarily be directly connected with the main industry, that is, manufacture of textile fabrics. Thus it appears to us that an employee engaged in any work or operation which is incidentally connected with the work of an establishment is an employee as defined in the Act. We are also of the opinion that the argument of the learned counsel for the appellant that an employee cannot have more than one employer has also no force.”
It is also relevant to mention that the judgments cited by the learned counsel for the petitioner arose under the Industrial Disputes Act under the definition of ‘workman’ as such the same would not render any assistance to the case of the petitioner.
15. In view of the above reasons, Point No.1 is answered against the petitioner and in favour of the respondents. Therefore this Court is inclined to declare that the unofficial respondents also fall under the definition of employee as defined under Section 2(f) of the Act and as such they are also entitled for the benefits under the legislation.
16. Another significant and peculiar aspect, which needs to be noted at this juncture, is that the petitioner, which is covered by the legislation, is extending the benefits under the Act to all its employees working on consolidated basis and also in favour of similarly situated employees. This aspect, in the considered opinion of this Court, is highly irrational, discriminatory, and preposterous and cannot stand for judicial scrutiny and is also in violation of Article 14 of the Constitution of India. Therefore, Point No.2 is also answered against the petitioner.
17. The jurisdiction of the Constitutional Courts while dealing with the writs in the nature of Writ of Certiorari is limited and confined to correct the jurisdictional errors and the aspects touching the violation of principles of natural justice. Unless the said contingencies exist, this Court cannot issue the writ of this nature. Re-appreciation of facts is also impermissible and unless conclusions and findings arrived at are patently and palpably perverse, the Courts would not get jurisdiction to intervene. In the instant case, such aspects are conspicuously absent. In the absence of the same, this court is not inclined to interfere with the orders impugned in the writ petition.
18. At this juncture it may be appropriate to refer to the judgments of the Hon’ble Apex Court in Syed Yakoob v. K.S.
[14]
Radhakrishnan and ors.
and Mohd. Shahnawaz Akhtar and
[15]
anr., v. First Additional District Judge, Varanasi and ors., .
19. In the case of Syed Yakoob v. K.S. Radhakrishnan and ors. (14 supra) the Hon’ble Apex Court at paragraph Nos.7 and 8 held as under:
“ 7 . The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of tact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the. Tribunal had. erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of
cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was' insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmed Ishaque(1), Nagendra Nath Bora v. The Commissioner of Hills Division and Appeals, Assam(2), and Kaushalya Devi
v. Bachittar Singh(3).
8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of (1) [1955] 1 S.C.R. 1104. (2) [1958] S.C.R.
1240. (3) A.I.R. 1960 S.C. 1168. the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manliest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly rounded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases. the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened.”
20. In the case of Mohd. Shahnawaz Akhtar and anr., v. First Additional District Judge, Varanasi and ors., (15 supra) the Hon’ble Apex Court at paragraph No.5 held as under:
“5. In our view, the High Court has transgressed the limits of the jurisdiction under Article 226 of the Constitution of India by purporting to re- appreciate the evidence and coming to its own conclusion. The High Court has nowhere stated or concluded that the lower courts had committed an error of jurisdiction or that they had acted illegally and improperly. Further the High Court failed to notice that a case of casual licence was not pleaded or proved by respondent No. 4. Therefore, it was not open to the High Court to make out a new case on behalf of the party in its writ jurisdiction under Article 226 of the Constitution.”
21. In fact, the primary authority as well as the appellate authority recorded cogent and convincing reasons in the orders under challenge as such this Court does not find any valid reasons to disturb the findings of fact recorded by the authorities under the Act. The present legislation is a welfare legislation and enacted to improve the condition of services of the employees engaged in factories and the other establishments. Being a social security statute brought in by the Parliament, its object, obviously, is to safeguard and better the future of the employees in the evening of their lives and for the benefit of the dependants in case of unforeseen and premature death of the employee, and this fund acts as a security after retirement. Since the petitioner-institution is admittedly extending the benefit to the employees working on consolidated basis, there is absolutely no justification on its part in denying the same to the part-time lecturers. Therefore, the benefits arising out of the present enactment cannot be denied in the name of lame and feeble excuses and explanations, and on untenable technicalities. This Court is also of the opinion that the absence of regularisation of the services of the unofficial respondents, by any stretch of imagination, cannot be a basis nor a valid reason for depriving the employees of the said benefit, which is statutorily conferred. In the absence of any evidence of being covered by Section 16 of the Act, the contention of the petitioner to the said effect cannot be countenanced nor sustained. In fact, in the grounds of appeal before the Tribunal, no such plea was taken nor such a plea is raised in the affidavit filed in support of the present writ petition. In view of the above reasons, this Court is of the considered opinion that there are absolutely no merits in the present writ petition.
22. For the aforesaid reasons, and having regard to the principles laid down in the above referred judgments of the Hon'ble Apex Court, this writ petition is dismissed. No order as to costs. As a sequel, miscellaneous petitions, if any, shall stand closed.
JUSTICE A.V. SESHA SAI.
22nd July, 2014 Js.
[1] 1980 LAB I.C.1212
[2] AIR 1988 SC 1700
[3] AIR 1973 FLR (27) 350
[4] 1982 (1) LLJ 454 (Ker)
[5] 1984 (1) LLJ 259 (Ker)
[6] 1992 (1) LLJ 745
[7] 1993 (1) LLJ 97
[8] 1995 III LLJ (SUPPL) 660
[9] (2007) 1 SCC 268
[10] 1983 LAB I.C 177
[11] 2014 (3) ALD 138 (SC)
[12] 1979 SC 1981
[13] 1988 Suppl. SCC 518
[14] AIR 1964 SC 477
[15] (2010) 5 SCC 510