SANDEEP DWELLERS PVT LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) All these three writ petitions have been heard together as issues involved therein are same. Parties have treated writ petition 2593/1997 as main writ petition. This writ petition is filed by Builders Association of India, Mumbai with its 36 members as petitioners against Union of India, the Central provident Fund Commissioner and other officers under him for the writ of mandamus directing them not to enforce amended para 26 (2) of provident Fund Scheme 1952 (referred to as 1952 scheme) framed under Employees provident Funds and Misc. Provisions Act (referred to as P. F. Act) in so far as temporary and/or casual site-workers engaged in multi-tier system in business system of petitioners. Further relief sought is that such workers should not be required to become members of said 1952 scheme. An order dated 23-12-1994 passed by joint Secretary of respondent No. 1 under section 19-A of P. F. Act is also sought to be quashed and set aside. It appears that the members of petitioner association at Nagpur received communications issued by Assistant Provident fund Commissioner that as per inspection report of Enforcement Officer it was found that the petitioners have not extended P. F. benefits to casual/temporary employees and to the employees engaged by contractor and this was an offence. Reference was made to judgment of Hon. Apex Court dated 17-4-1995 (J. P. Tobacco Products etc. Vs. Union of India reported at 1995 (II) C. L. R. 369) upholding the validity of amending provisions of para 26 (2) of Provident Fund Scheme 1952 and they were called upon to submit supplementary returns. In some cases the noticees were to pay specific amount on account of short payment. This court admitted writ petition for final hearing on 29 aug. , 1998 and granted stay in favour of petitioners. The final hearing was expedited. Writ petition 2047/1996 is filed by only one petitioner to set aside order dated 23rd december, 1994 passed by Joint Secretary and to restore earlier order dated 8-2-1994 passed by Legal Adviser under section 19-A of P. F. Act. The further relief claimed is to restrain authorities of provident fund department from enforcing order of Central Government dated 23rd September, 1980 in respect of daily wage construction workers or purely casual and temporary construction workers. It appears that on 17-7-1996 the petitioner M/s. R. B. Constructions was summoned to attend inquiry under section 7-A of P. F. Act and thereafter the petitioner approached this court and this court while issuing notice before admission granted an interim stay which continues to operate after the writ petition was admitted for early final hearing. Writ petition 1064/2001 is filed by sandeep Dwellers Private Ltd. in similar circumstances for similar reliefs. Proceedings under section 7-A have already been held in this petition and petitioner has been called upon to pay amount of Rs. 2,57,500/- only as P. F. contribution for the period from November, 98 to Apr. , 2000. In this matter also while issuing rule interim order protecting the petitioner has been passed.

(2.) Petitioners in all these 3 writ petitions are thus Builders engaged in construction activities of different types. They have some permanent staff and in relation to such staff they are paying P. F. contribution and dispute is about coverage of casual workers or site workers or temporary workers employed through contractors or otherwise. They claim that because of peculiar nature of their activity and work, they are required to engage contractors having specialisation in particular area and these contractors in turn engage their own subcontractors and the subcontractors may again engage further petty contractors or labour contractors for doing work at various stages. Different contractor does the work of erecting a centering while other contractor will do the work of casting slab. The work of erecting walls may be done by third contractor while wood work may be done by still different person/contractor. The plumbing, electrification, fixing of tiles, finishing, painting will each be done by still other contractors. According to Petitioners the labour force working with each contractor is different and they work for very short period and after finishing one site they move to other site with their contractor or coming to them. Such casual or temporary or site-workers are not employed in their establishment and as such Petitioners cannot be forced to cover them under P. F. Act as their employees. It is pointed out that under earlier paragraph 26 of 1952 scheme an employee who had put in particular length of service alone was required to be treated as covered under the scheme. Attention is invited to 1990 amendment to said paragraph 26 to show that such waiting period has been removed and from day one the employee is supposed to be covered under the scheme. Attempt of petitioners is to show that such employees cannot be treated "as employed" with them and therefore are not covered by definition of employee under Section 2 (f) of P. F. Act. Paragraph 26 (2) as it originally stood read:-

(3.) I have heard Advocate V. R. Thakur for Petitioners in W. P. 2593/1997 and W. P. 1064/2001, Adv. D. C. Daga for petitioner in w. P. 2047/1996 and Advocate Sundram for respondents in all matters.