LPA 727, 728, 729, 730/2014. Case: 1. M/s. SDB Infrastructure Pvt. Ltd. (Formerly Somdatt Builders Pvt. Ltd.) & Ors., 2. Builders Association of India & Ors., 3. Skyline Engineering Contracts (India) Pvt. Ltd. Vs Union of India & Ors.. High Court of Delhi (India)
| Case Number | LPA 727, 728, 729, 730/2014 |
| Counsel | For Appellant: Mr. Rakesh Tiku, Sr. Advocate instructed by Mr. Jeevesh Nagrath and Mr. Rajeshwar K.Gupta, Advocates and For Respondents: Mr. Jasmeet Singh, Advocate with Ms. Ashta Sharma, Advocate, Mr. R.C.Chawla, Advocate for Central PF Commissioner |
| Judges | Pradeep Nandrajog and Mukta Gupta, JJ. |
| Issue | Case No |
| Judgement Date | October 16, 2015 |
| Court | High Court of Delhi (India) |
Judgment:
Pradeep Nandrajog, J.
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By a notification dated September 17, 1964 establishments of Engineers, Engineering Contractor which were not exclusively engaged in building and construction activity were brought within the purview of the Employees Provident Fund and (Miscellaneous) Provisions Act, 1952. By a subsequent notification dated September 23, 1980, the building and construction establishments were also brought within the purview of the Act with effect from October 31, 1980. By a notification dated November 01, 1990, Para 26(2) of the Provident Fund (Miscellaneous) Provisions Scheme, 1952 was amended. The amendment reads as under:-
"After this paragraph come into force, in a factory or other establishment, every employee employed in or in connection with the work of that factory or establishment other than excluded employee who has not become a member already shall be entitled and required to become a member of the fund from the date of joining the factory or establishment."
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A writ petition was filed in this Court which was registered as W.P.(C) No.792/1991: Pyare Lal Hari Singh vs. Union of India & Ors. Vires of para 26(2) of the Scheme was challenged and amongst others, one ground of challenge was that the scheme as amended by para 26(2) was unworkable. The unworkability of the scheme was predicated on the ground that in the construction activity many workers work for one or two months with an employer and then move on to another. The query was posed: how would portability of the workman be accounted for when the benefit of the amount deposited by the employer in the fund would be required to be paid to the workman? An ancillary issue concerning Scheme 2(f) of the Employees Provident Fund and (Miscellaneous) Provisions Act, 1952 was also raised.
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The Division Bench of this Court before which the writ petition was listed took note of the fact that the scheme as amended would not entail any benefit to the workman who would work for a few days at one place under one employer and then move on to another and thereafter another followed by another and so on, because there was no mechanism to track the workman and additionally the workman would have no logistics to withdraw the money lying in the fund in his name. On November 27, 1991 an order was passed which brings out an attempt made to resolve the issue with reference to the suggestion by the Employees Provident Fund Commissioner that a pass-book could be issued in the name of the employee in which the amount credit in his name in the fund by the employer could be entered by the employer and withdrawal could be permitted from any place. The order reads:-
"27/11/1991
Present:- Counsel for the Petitioner.
C.W.P. No.792/91
Additional affidavit has been filed but in our opinion the problem is not resolved. Merely having a pass-book will not serve any useful purpose because in the very nature of things a migrant labourer goes from the place to the other and there is no solution as to how and from where the migrant labourer would be able to withdraw the money due to him. These and other related problems should be considered and a more detailed and an effective proposal for a scheme should be presented to the Court on the next date of hearing.
Adjourned to 20th January, 1992. Interim orders to continue.
A copy of the order be given dasti to counsel for the respondents."
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Another affidavit was filed thereafter by the Provident Fund Commissioner setting forth the proposals by the authorities to put in place a working mechanism for the employee to avail the benefit of the amount credited in his name in the fund by different employers under whom the workman worked from time to time. Reflecting thereon, on May 19, 1992, the Division Bench passed another order which reads as under:-
"19-5-1992
Present:- Mr.Rajiv Nayar, Advocate, Mr.R.K.Kapur, Advocate, Mr.Kuldip Pabley, counsel in items 24, 25, 43, 84. Mr.M.R.Chawla, Advocate for the Petitioners Mr.S.Mukherjee, Advocate Mr.K.C.Sharma, Advocate Mr.R.C.Chawla, Advocate for the Respondents.
C.W.P. NO.792/91
Mr.Mukherjee states that an affidavit has been filed gibing proposed revised accounting procedure in respect of workers engaged in building and construction industry. The said additional affidavit is, however, not on nor record but during the course of hearing a copy of the same was made available to us.
We have perused the proposed scheme and we have our apprehensions about the same only with regard to one aspect viz., whether it will be easy or convenient for the workers to be able to realize the amounts due to them. The proposal, as envisaged, contemplates about 64 Centres in all the whole of India come using the Headquarters, the Regional Offices and the Sub-Regional offices which are supposed to cater to lakhs of villages in which the labour force may be residing. Considering the size of India, the workmen in order to claim a refund, or their legal heirs in order to realize the money on the death of a workman, may have to travel hundreds of miles only for the purpose of putting in an application and then waiting for getting the money due to them. The scheme should be so formulated so as to make it easy and convenient for the persons entitled to receive the money to do so without much difficulty. Where aware of the fact that according to the Provident Fund Rules money is not payable to an employee merely at his request. The Provident Fund is like retirement benefit of in any case is a benefit which is available towards the end of one''s serving years. But during the period when one is working loans can be taken or withdrawal made under certain circumstances. It is possible that if easy withdrawal of money is allowed this object may be frustrated but, on the other hand, if realization of money is inconvenient then the result would be that large sums of money would continue to remain with the Provident Fund Commissioner without the workmen getting benefit thereof. As at present there are about 37 crores of rupees lying with the Provident Fund Commissioner which are unclaimed. This amount will multiply many fold if it is un-economic or impractical for workers to realize small amounts of money which may be individually due to the under the revised Provident fund Scheme. Therefore, every effect should be made to see that the scheme is made workable and it will be a lesser evil if the workers obtain their money before it would ordinarily be due to them rather than the workmen losing the money in toto.
One of the suggestions which as been mooted during the course of discussion is that into the main computer data should be fed in, indicating the name and nominees of every worker. If during a particular period of time say six months or one year or more, no contribution into that account has been made, a red flat should be raised which will warn the Provident Fund authorities to ascertain from the account holder as to why no contribution is being made. If no reply is received which is satisfactory then, possibly, after sometime, the Provident Fund authorities should on their own refund or pay to the account holder or his nominee the amount standing to his credit in that account on the presumption that the amount has become due to the employee. This will be on the basis that as and when a worker, who is a member of the Provident Fund account decides to resign or retire or cease working, he comes, entitled to the refund of the money. When no contribution is made to an account of the worker for a length of time it can safely be presumed that the said worker has stopped working and is, therefore, entitled to the refund of money. In this way all moneys will be paid to the workmen.
Another suggestion which has been made is that money should be paid with the assistances to stamps being affixed on the pass-book to be maintained by the worker. Suggestions to this effect have already been made by the Managements of different concerns.
Another suggestion is also that electronic teller cards should be issued to the workmen which will keep a complete record off all the transactions and will take the place of a pass-book.
All the aforesaid suggestions should again be examined by the Board and a detailed scheme be made available to the Court on 8th July, 1992 for final disposal. Copy of the order be given dasti to counsel for the parties."
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During the pendency of the writ petition before the Division Bench of this Court, the vires of the amendment to the scheme was upheld by the Supreme Court, when the decision dated August 31, 1994 passed by the High Court of Madhya Pradesh at Jabalpur in Misc.Petitions No.438/1991, 478/1991 and 482/1991 was upheld by the Supreme Court in Petition(s) for Special Leave to Appeal (Civil) No.21149/1994, 21762/1994 and...
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