Dilip Kumar Singh vs Union of India and Others

S. Chandrashekhar, J.—Aggrieved by letter dated 13.05.2014, whereby a direction has been issued to the petitioner to furnish the details of the labourers engaged by him and the details of the contribution deposited by the petitioner in terms of the provisions of the Employees'' Provident Fund and Miscellaneous Provisions Act, 1952, the present writ petition has been filed.

The learned counsel for the petitioner referring to the notification dated 08.01.2011 submits that the provisions of the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952 has been extended to the Municipal Councils and Municipal Corporations constituted under sub-clauses (b) and (c) of clause (1) of Article 243Q of the Constitution of India and not against the contractors and therefore, the notice dated 13.05.2014 issued by the Executive Officer, Municipal Council, Sahebganj is without jurisdiction. It is further submitted that the petitioner would neither fall in the category of "establishment" nor "employee" as defined in the Employees'' Provident Fund and Miscellaneous Provisions Act, 1952 and therefore, the Executive Officer, Municipal Council could not have ordered forfeiture of 12% deduction with 13.61% contribution from the security deposit furnished by the petitioner.

As against the above, Mr. P. Pallav, the learned counsel appearing for the Regional Provident Fund Commissioner submits that the provisions of the Employees'' Provident Fund and Miscellaneous Provisions Act, 1952 is a beneficial provision, intended to extend benefits to the employees. The provision of the Act is applicable to not only the temporary workers but the workers employed by the contractors also. It is further submitted that workers engaged by the petitioner is covered under the definition "employee" under Section 2(f) of the Act and therefore, the petitioner cannot escape the liability under the provisions of the Employees'' Provident Fund and Miscellaneous Provisions Act, 1952.

Having heard the learned counsel for the parties and after perusing the documents brought on record, I am of the opinion that the present writ petition is liable to be dismissed. Sections 2(e) and 2(f) of the Employees'' Provident Fund and Miscellaneous Provisions Act, 1952 are extracted below:

2(e) "employer" means-

(i) in relation to an establishment which is a factory, the owner or occupier of the factory, including the agent of such owner or occupier, the legal representative of a deceased owner or occupier and, where a person has been named as a manager of the factory under clause (f) of sub-section (1) of Section 7 of the Factories Act, 1948 (63 of 1948), the person so named; and

(ii) 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;

(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;]"

From the scheme of the Employees'' Provident Fund and Miscellaneous Provisions Act, 1952, I find sufficient indication as to the employer and the employee who are not covered under the provisions of the Employees'' Provident Fund and Miscellaneous Provisions Act, 1952. Sections 2(ff) and 2(fff) define the expressions "exempted employee" and "exempted establishment" respectively. Section 2(e) provides that the person or the authority, who has the ultimate control over the affairs of the establishment would be an "employer". The gazette notification issued by the Central Government dated 08.01.2011 extends the provision of the Act to the Municipal Councils and Municipal Corporations constituted under sub-clauses (b) and (c) of clause (1) of Article 243Q of the Constitution of India. The Municipal Council, Sahebganj-respondent No. 6 is thus covered under the notification dated 08.01.2011. Section 2(f)(ii) provides that employee means employed by or through a contractor in or in connection with the work of the establishment and therefore, the petitioner, who himself admitted that he is a contractor executing work for the Municipal Council, Sahebganj, cannot deny that the workers engaged by him cannot fall under the definition of employee.

From the aforesaid, I find no illegality in the impugned letter dated 13.05.2014 and accordingly, the writ petition is dismissed.