GOBINDA NAYAK Vs. D MISHRA

JUDGEMENT

(1.) THE petitioner in this writ application is the General Secretary of the Rengali Workers' Co -ordination Committee representing the entire working people of Rengali Dam Project and also other projects. He has prayed for issue of a writ of mandamus directing opposite party No. 1 to make immediate payment of the special construction allowance to each workman working in the Rengali Dam Project.

(2.) THE facts relevant for disposal of this writ application are as follows: - - The construction work of the Rengali Dam Project began in the year 1972 and for the purpose, a large number of workers were employed in various sections of the project. It is not disputed that the establishment and its workmen came within the ambit of the Employees Provident Funds and Misc. Provisions Act, 1952 and the Scheme framed thereunder. The Employees' Provident Funds and Misc. Provisions Act, 1952 (for short the Act') and the Scheme were made applicable to the aforesaid establishment in November, 1980. Yet, the Chief Engineer of the project did not make payment of the contribution as required under the Act and the Scheme. Ultimately the Regional Provident Fund Commissioner, opposite party No. 2, brought to the notice of opposite party No. 1 that unless statutory contributions were deposited the penal consequences envisaged under the Act and the Scheme would follow, After a series of correspondence made between opposite parties Nos. 1 and 2, opposite party No. 1 finally agreed to deposit the statutory contributions and admitted that the provisions of the Act and the Scheme would be operative in the project from November, 1980. Initially there was objection from the side of opposite party No. 1 to make any payment of the employees' share under the Scheme which was overruled by opposite party No. 2. Opposite party No. 2, however, agreed to exempt opposite party No. 1 from making any payment towards the employees' shave till November, 1981 as opposite party No. 1 was first put to notices for the said liability in that month. Opposite party No. 1 started depositing the employees' share from June, 1982 deducting the same from the dues of the employees. He, however, expressed his unwillingness to make any deposit for the period from December, 1981 till May, 1982 and sought for clarification from opposite party No. 2 in that behalf. The correspondences which passed on between opposite parties Nos. 1 and 2 in this connection have been annexed to this writ petition as Annexures -1, 2 and 3. Ultimately opposite party No. 1 deposited the dues representing the employees' share of the provident fund for the aforesaid period in August, 1983 and decided to recover the same from the future wages and allowances of the employees. Thereafter a controversy arose when the petitioner representing the entire working people raised objection to such recovery on the ground that; the same was not permissible under the law. Opposite party No. 2 also issued necessary guidelines in the matter in a communication to opposite party No. 1 indicating the legal position that the employees' share of contributions for the back period was not recoverable either from their current or from their arrear dues and that the employer was liable to pay the both. In spite of the aforesaid communication, opposite party No. 1 directed the respective Executive Engineers not to release the special construction allowance due to the employees for the period from March, 1983 to July, 1983 and withhold the same for the purpose of making recovery of the amount deposited by the employer towards the employees' share for the period from December, 1981 to May, 1982. It is also alleged that the additional clearness allowance for the months from September, 1982 till June, 1983 which was sanctioned for payment was not paid to the workmen and was directed by opposite party No. 1 be clubbed with the aforesaid construction allowance for the months from March, 1983 to July, 1983 for recovery of the employees' share of the provident fund paid by the employer for the back period. It has been contended that the aforesaid recovery is bad in law.

(3.) AT the time of issuing notice of admission, this Court by order, dated 5. 12. 1983, directed that the additional dearness allowance for the months from September, 1982 to June, 1983 would be released in favour of the employees which would be subject to the final decision of the writ petition.