CENTRAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION Vs. KOLKATA MUNICIPAL CORPORATION

JUDGEMENT

(1.) These intra-Court appeals are directed against the order dtd. 18/5/2018 in WP No. 197 (W) of 2016. The said writ petition was filed by the Kolkata Municipal Corporation (KMC) challenging the notification issued by the Ministry of Labour and Employment dtd. 8/1/2011 in exercise of powers conferred under Clause (b) of Sub-Sec. (3) of Sec. 1 of the Employees' Provident Fund and Miscellaneous Provisions Act, 1962 (the EPF Act) thereby, the Central Government specified that the Municipal Councils and Municipal Corporations constituted under Sub-Clauses (b) and (c) of Clause 1 of Article 243Q of the Constitution of India where 20 or more persons are employed to be a class of establishments to which the EPF Act will apply with effect from the date of publication of the notification in the Official Gazette.

(2.) The KMC contended that the notification cannot be made applicable to them in view of Sec. 16 of the EPF Act which stipulates that the EPF Act not to apply to certain establishments. Further, in terms of Sec. 14(1) of the Kolkata Municipal Corporation Act, 1980 (KMC Act) the officers of the Corporation have been enumerated and KMC maintain a schedule of posts which includes the designation and number of posts under each designation constituting the establishment of the Corporation. It was further contended that the KMC has its own General Provident Fund Regulation applicable to the Officers and employees of the establishment and therefore, the provisions of the EPF Act and the scheme framed thereunder are inapplicable. Further, due to growth in the population resulting in greater demand in providing civic services to the public, KMC is required to utilize the services of persons on contingent/ casual/ temporary/ piece rate/ daily rate/ contract by or through the contractors or sub-contractors who are engaged to provide appropriate civic services in the interest of general public. Those contingents/ causal workers are not covered under the establishment of KMC and are paid as per the terms and conditions of their engagements. Further, it was contended that if the EPF Organization sees to proceed to apply the provisions of the EPF Act, it is to be applied to the security agencies who had supplied such employees and at this distance of time an enquiry cannot be conducted for the period from August, 2011 to November, 2014 in respect of those persons who are engaged through contractors, more particularly when KMC does not maintain or preserve any records relating to the engagements of such persons for several years. The Joint Municipal Commissioner by letter dtd. 25/4/2016 addressed the Central Provident Fund Commissioner as well as the Ministry of Labour and Employment requesting them to grant exemption from the operation of the EPF Act. This request was rejected by an order dtd. 12/8/2016. It is an admitted position that KMC did not challenge the order rejecting the exemption and it is their plea that they are no estopped from questioning the notification dtd. 8/1/2011 though they have not specifically made a challenge to the order rejecting their plea for exemption. The EPF Organization commenced an enquiry by initiating proceedings under Sec. 7A of the EPF Act and directed the authorities of KMC to comply with the provisions of the Act with effect from the date of the notification dtd. 8/1/2011.

(3.) The EPF organization contested the writ petition by contending that KMC being the principal employer are required to extend the benefits of the EPF Scheme to the employees of the establishments and having committed default, the action initiated under the EPF Act was fully justified. Further, it was contended that on and after publication of the notification dtd. 8/1/2011 it is not open to KMC to contend that the EPF Act is not applicable to them.