Marwari College vs The Employees Provident Fund Organization & Ors

The present writ petition has been filed for quashing Notice No.JH/RO/RNC/CC-I/4384/7A/15/226, dated 5thth January, 2016 as well as

notices dated 17thth July, 2015, 3rdrd August, 2015 and 16thth December, 2015 issued by the respondents in purported exercise of power under

the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter to be referred as ''the Act'') and the scheme framed

thereunder, which is not applicable with respect to contractual employees, who have been engaged by the petitioner purely on honorarium and part

time basis. The petitioner has also prayed for declaration that impugned notices are illegal, arbitrary and beyond jurisdiction as the employees

employed by the petitioner on contractual and honorarium basis do not come within the ambit of the said Act and schemes framed thereunder and,

therefore, no provision of the Act has been violated by the petitioner.

Learned counsel for the petitioner submits that the petitioner College required the services of various teachers and staff in its intermediate section

only for two-three hours in a day and, therefore, they were engaged purely on honorarium basis for a period of eleven months subject to renewal

of the same on expiry of the contractual period. However, a notice dated 17th July, 2015 was issued by the Regional Provident Fund

Commissioner-II (C & R), Regional Office, Ranchi, whereby the petitioner was directed to comply with the provisions of the Act in connection

with the contractual personnel engaged by it. The petitioner replied to the said notice by stating that intermediate section of the college does not

come under the purview of the University and the same is being run on self financed basis without any aid from the State or the University. Despite

the said fact, the Assistant Provident Fund Commissioner (C), Regional Office, Ranchi continued with the proceeding under Section 7A of the Act.

A counter affidavit has been filed on behalf of the respondents, stating, inter alia, that the petitioner-College falls under the ambit of the Act since

1982 being an educational institution. Various communications were made to the petitioner to extend the benefits of provident fund to its

contractual employees, but the petitioner failed to comply with the provisions of the Act and did not extend the benefit of provident fund to the said

contractual employees. An inspection was carried out by a team of Enforcement Officers, headed by the Assistant Provident Commissioner, which

came to the conclusion that the said contractual personnel are also entitled to get the benefit of the Act and the scheme framed thereunder since

1998. Thus, the proceeding under Section 7A of the Act has been initiated against the petitioner which is completely in accordance with law.

Heard learned counsel for the parties and perused the materials available on record. Admittedly, the proceeding under Section 7A of the Act is

pending before the Assistant Provident Fund Commissioner (C), Regional Office, Ranchi. The representative of the petitioner is participating in the

said proceeding. The main contention of the petitioner is that the contractual employees engaged by the petitioner in its intermediate section are

paid honorarium without taking any aid from the State or the University or from any other agency. Thus, the proceeding initiated by the

respondents under the Act itself is not maintainable.

In my opinion, the aforesaid contention raised on behalf of the petitioner involves factual determination, which are to be done by the respondent

authorities at the first instance. Since the proceeding under Section 7A of the Act is still pending, it would not be appropriate for the writ court to

make factual adjudication in the present issue. However, the petitioner is at liberty to take all the points before the Assistant Provident Fund

Commissioner (C), Regional Office, Ranchi (respondent no.3), who is hearing the matter under Section 7A of the Act. The respondent no.3, while

passing the order, shall also consider the applicability of Section 7A of the Act in the present factual context.

The writ petition is disposed of with the aforesaid liberty and observation.