MANICKAM N Vs. ASSISTANT P F COMMR

JUDGEMENT

(1.) N. Manickam, beedi manufacturing contractor, Achamangalam village, petitioner in W.P.No.3310 of 1998 has approached this Court to issue a writ of mandamus directing the first respondent/Assistant Provident Fund Commissioner, Salem-1, to receive the petition to implead him as a party in the proceedings No.TN/SL/ENF/21270/7-A KNG I/97. Aggrieved by the proceedings of the very same officer, dated February 19, 1998, Jyoti Home Industries, Krishnagiri, have filed W.P. No.3553 of 1998 to quash the same on various grounds.

(2.) The case of the contractor in Writ Petition No.3310 of 1998 is briefly stated hereunder: According to him, he is an independent beedi manufacturing contractor who obtained the raw materials from the third respondent and supply the same to the workers and on completion of the job work, he collected the finished products and gave it to the third respondent. He is a contractor in so far as third respondent is concerned i.e., Jyoti Home Industries who are beedi manufacturing firm. The third respondent is duly registered under the Beedi and Cigar Workers (Conditions of Employment) Act, 1966, and also has a Central Excise Licence under the Central Excise Act and has manufacturing centres all over Karnataka and one at Krishnagiri in Tamil Nadu. The petitioner has taken out licences for carrying on their own activities of manufacture. Wages and other monetary benefits are paid to the rollers by the contractors. The petitioner herein has no individual provident fund code number to make any contributions towards provident fund. In so far as Krishnagiri, is concerned, the particulars of the wages paid to the workers who are members to the provident fund are furnished to the third respondent periodically. The provident fund contributions collected from these members are paid to the third respondent for depositing the same to the provident fund authorities. While so, he came to understand that in or around February, 1997, the second respondent in Krishnagiri visited the premises of the third respondent and collected certain records. Based on his inspection, the first respondent issued a notice on June 11, 1997 purporting to be the summons under Section 7-A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. On the basis of the reply sent, the matter was apparently dropped. In August, 1997, another communication, dated August 8/12, 1997, was received by the third respondent from the first respondent, alleging some violations of the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act). Another notice under Section 7-A of the Act was issued on December 19, 1997. On coming to understand that the first respondent is initiating proceedings against the third respondent on vague and untenable grounds, the petitioner along with 24 other contractors submitted a joint memorandum to the first respondent and also a petition to implead themselves as a party to the proceedings. The petitioner and others have been paying provident fund contributions and this fact was to be brought to the attention of the first respondent, particularly in the light of Section 30(2). However, strangely, the cover sent under registered post with acknowledgment due was returned by the first respondent with the endorsement "refused." Any order made without hearing the petitioner and other contractors, will be no order at all in the eyes of law. The contractors such as the petitioner herein are necessary parties to the proceedings. In such circumstances, aggrieved by the action of the first respondent having no other effective remedy has filed the present writ petition.

(3.) On behalf of the respondents 1 and 2, Assistant Provident Fund Commissioner, Madras, has filed a counter-affidavit disputing various averments made by the petitioner. It is stated that the writ petition is not maintainable, since the Provident Funds Appellate Tribunal has been constituted with effect from July 1, 1997 and the petitioner has the remedy of filing appeal against the impugned order before the Appellate Tribunal. It is stated that the name of the excluded employees, a large number of home-workers are denied the benefit of social security by denying Provident Fund/ Employees Pension Scheme benefits. The employer has taken undue advantage and not enrolled all the eligible employees as provident fund subscribers and thereby the very purpose of the social security legislation has been defeated. This being the case, it was decided through an enquiry under Section 7-A of the Act that there should be no excluded employees in beedi workers presuming that a beedi worker at the most can roll beedies per month and the inquiry proceedings, dated February 19, 1998, was issued under Section 7-A of the Act assessing the dues payable by the employer in respect of such employees whose wages contributions are not paid for the period from March, 1996 to February, 1997. Aggrieved by the said proceedings, the employer namely, the third respondent herein filed Writ Petition No.3553 of 1998 before this Court. The petitioner is one of the contractors engaged by the establishment namely, Jyoti Home Industries, third respondent herein. The petitioner cannot be claimed as independent beedi manufacturing contractor. The petitioner is a dependent contractor for a principal employer. The third respondent supply raw materials to the contractors and in turn get rolled beedies. The contractor entirely depends on the third respondent for raw materials. Initially the enquiry was fixed-on August 28, 1997 and adjourned to January 8, 1998. The same was preponed to January 6, 1998 on which date Sri C.H Narayana, advocate appeared on behalf of the employer. The enquiry was again adjourned to January 16, 1998. Thereafter, the same was adjourned to February 3, 1998. After closing the enquiry on February 3, 1998, the employer has instigated the contractors to make representation mainly for the purpose of delaying the issue. Since the contractor kept silent for a long period namely at the enquiry dates on June 27, 1997 and on August 28, 1997, there was no other alternative except to refuse and reject the representation of the contractors. The petitioner has nothing to be aggrieved as the orders passed is within the jurisdiction and without violating principles of natural justice ; accordingly prayed for dismissal of the writ petition.