Can Employer Gave up Voluntary PF Contribution 

In a case where employee is contributing PF on more than the limit of Rs. 15000/- per month and employer is also contributing similar amount, whether now employer can reduce his contribution equal to only Rs. 15000/- ?

My revert with supporting:-

The employer in all cases where he makes contribution over and above the statutory limit can always bring down the same to the statutory limit of Rs. 15000/- and such reduction will not hit Sec. 12 of the Act so long as the establishment is not falling under a trust for managing the Provident Fund.

This proposition of law has already been laid down by the Hon'ble Supreme Court in the case of Marathawada Gramin Bank. 2011 IV LLJ 305 (SC.2J). This proposition of law did hold the field even earlier in the case of Harihar Poly fibres v. RPFC. 1991 II LLJ 477 (Karn.HC) where in case of Voluntary coverage the rate of contribution is controlled by Sec. 6 and not by Sec. 12.

Thus, employer may reduced to PF Wages for PF calculation till minimum ceiling amount i.e. Rs. 15000.00. (this amount may change with span of time via department notification).

Employees’ State Insurance (Central) (Amendment) Rules, 2019

G.S.R. 121(E).—The following draft of certain rules further to amend the Employees’ State Insurance (Central) Rules, 1950 which the Central Government, after consultation with the Employees’ State Insurance Corporation, proposes to make in exercise of the powers conferred by Section 95 of the Employees’ State Insurance Act, 1948 (34 of 1948), is hereby published as required by sub-section (1) of the said Section, for information of all persons likely to be affected thereby and notice is hereby given that the said draft rules will be taken into consideration after thirty days from the date of publication in the Official Gazette.( Reducing the Percentage of Contribution)

Any objection or suggestion, which may be received from any person in respect of the said draft rules within the period specified above, will be considered by the Central Government.

Existing Percentage			Proposed Percentage
Gross Wages  Rs 21000			Gross Wages  Rs 21000
Employee	Employer	Total	Employee	Employer	Total
1.75%	4.75%	6.50%	1%	4%	5%

The Employees’ Pension (Amendment) Scheme, 2014.

NOTIFICATION

New Delhi, the 22nd August, 2014

G.S.R. 609(E),— In exercise of powers conferred by section 6A read with subsection (1) of section 7 of the Employees‟ Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), the Central Government hereby makes the following Scheme further to amend the Employees‟ Pension Scheme, 1995. namely:—

I, (1) This Scheme may be called the Employees’ Pension (Amendment) Scheme, 2014

 (2) It shall come into force on and from the 1st day of September, 2014.

2, In the Employees‟ Pension Scheme, 1995, (hereinafter referred to as the principal Scheme). in paragraph 3, in sub-paragraph 2, in the proviso, for the words “Rupees six thousand and five hundred”, wherever they occur, the words “fifteen thousand rupees” shall be substituted.

3. In the principal Scheme, in paragraph 6, in clause (a), after the words. figures and letter “or 27A of the Employees‟ Provident funds Scheme, 1952″, the words “and whose pay on such date is less than or equal to fifteen thousand rupees”, shall be inserted.

4. In the principal Scheme, in paragraph II,-

(a) for sub-paragraph (1) and the proviso thereto, the following shall be substituted, namely:-

(1) The pensionable salary shall be the average monthly pay drawn in any manner including on piece rate basis during contributory period of service in the span of sixty months preceding the date of exit from the membership of the Pension Fund and the pensionable salary shall be determined on pro-rata basis for the pensionable service up to the 1st day of September, 2014, subject to a maximum of six thousand and five hundred rupees per month and for the period thereafter at the maximum of fifteen thousand rupees per month:

Provided that if a member was not in receipt of full pay during the period of sixty months preceding the day he ceased to be the member of the Pension Fund, the average of previous sixty months full pay drawn by him during the period for which contribution to the pension fund was recovered, shall be taken into account as pensionable salary, for calculating pension;

(b) in sub-paragraph (2), for the figures and word “12 months”, wherever they occur, the words -sixty months” shall be substituted;

(c) in sub-paragraph (3),-

(i)   for the words, letters and figures “rupees six thousand and five hundred/Rs, 6500″, the words“fifteen thousand rupees” shall be substituted;

(ii)      the proviso shall be omitted.

(d) after sub-paragraph (3), the following sub-paragraph shall be inserted, namely:-

 “(4) The existing members as on the 1st day of September, 2014, who at the option of the employer and employee, had been contributing on salary exceeding six thousand and five hundred rupees per month, may on a fresh option to be exercised jointly by the employer and employee continue to contribute on salary exceeding fifteen thousand rupees per month:

Provided that the aforesaid members have to contribute at the rate of 1.16 per cent on salary exceeding fifteen thousand rupees as an additional contribution from and out of the contributions payable by the employees for each month under the provisions of the Act or the rules made there-under:

Provided further that the fresh option shall be exercised by the member within a period of six months from the 1st day of September, 2014:

Provided also that the period specified in the second proviso may, on sufficient cause being shown by the member, be extended by the Regional Provident Fund Commissioner for a further period not exceeding six months:

Provided also that if no option is exercised by the member within such period (including the extended period), it shall be deemed that the member has not opted for contribution over wage ceiling and the contributions to the Pension Fund made over the wage ceiling in respect of the member shall be diverted to the Provident Fund account of the member along with interest as declared under the Employees‟ Provident Fund Scheme from time to time,

5. In the principal Scheme in paragraph 12, in sub-paragraph (2), the following proviso shall be inserted. namely:-

“Provided that the members‟ monthly pension shall be determined on a pro-rata basis for the pensionable service up to the 1 st day of September, 2014 at the maximum pensionable salary of six thousand and five hundred rupees per month and for the period thereafter at the maximum pensionable salary of fifteen thousand rupees per month”.

6, in the principal Scheme, for paragraph 14 the following paragraph shall be substituted, namely.-

“14. Benefits on leaving service before being eligible for monthly member‟s pension.- if a member has not rendered the eligible service specified in sub-paragraph (I) of paragraph 12 on the date of exit, or on attaining the 58 years of age, whichever is earlier, such member shall be entitled to a withdrawal benefit as laid down in Table „D‟ or may opt to receive the Scheme certificate provided on the date he has not attained 58 years of age:

earlier, such member shall be entitled to a withdrawal benefit as laid down in Table ‘D’ or may opt to receive the Scheme certificate provided on the date he has not attained 58 years of age:

Provided that for calculating such withdrawal benefit, the wages at exit shall be the weighted average of his wages at the end of every wage ceiling period:

Provided further that an existing member shall receive additional return of contributions for his past service under the Employees’ Family Pension Scheme, 1971, computed as withdrawal-cum-retirement benefits as per Table ‘A’ multiplied by the factor given in Table ‘B’.

[F.No. S-35012/1/2012-SS-111]

ARUN KUMAR SINHA, Addl. Secy.

Note: The principal Scheme was published in the Gazette of India. Extraordinary, Part II, Section 3, Sub-section (i), vide notification number G.S.R. 748 (E), dated the 16th November, 1995 and last amended vide notification number G.S.R. 80(E) dated the 14th February, 2013.

Self Certification Scheme - Haryana

Government of Haryana Department of Labour & Employment 30 Bays Building, Sector 17, Chandigarh (Website: hrylabour.gov.in)

PUBLIC NOTICE

Kind Attention: Employer/Entrepreneur/Industrial association/other Stakeholders.

Government of Haryana, Department of Labour is pleased to introduce a new Scheme namely “Self Certification Scheme” with theaim to develop self-discipline and self-reliance and take responsibility for statutory compliances under the various labour laws without compromising on the safety, health, welfare and social security of the employees. The scheme will bring complete transparency in the working of the government machinery and at the same time it will protect the legitimate rights of the workers.

This Scheme is optional and any employer or entrepreneur can opt for this Scheme and apply in the prescribed Performa .Under this scheme, the employers shall deposit the prescribed security for a period of five years. The scheme will, however, not be applicable to Major Accident Hazardous manufacturing units (MAH).The draft of the “Self Certification Scheme” and requisite formats under the various Labour Laws are available on the Departmental Website “hrylabour.gov.in”.

All the stakeholders are requested to forward their comments/suggestions on the self-certification scheme to the Labour Commissioner Haryana, latest by 30^th November, 2015 either by post or through email at “selfcertificationhry@gmail.com”.

                                                                                   

                                                                                                     LABOUR COMMISSIONER

                                                                                                     HARYANA, CHANDIGARH

Principal Employer needs to mention in Form II names of all subcontractors with the no. of people deployed or not.

I have gone through this query many time as to the Principal Employer needs to mention in Form II names of all subcontractors with the no. of people deployed  or not. 

As per my last blog on - 

Applicability of Contract Labour (Regulation & Abolition) Act,1970 to Sub Contractors & sub-sub contractors

where I had explained you that sub contractor is also a contractor (read section 2(c). This part of the definition is lucid. However, the words “and include a sub-contractor” throws us into an infinite loop.

The term contractor therefore includes the term sub-contractor. Therefore, every sub-contractor is a contractor. Neither the Contract Labour Act nor the rules made pursuant thereto describe or define the sub-contractor.

Section 12 that deals with licensing of contractors prohibits any contractor from employing contract labour without a license to do so.

As per the Rule 18 provides for Form II of the certificate of registration to be granted under Section 7 [2] of the Act. The certificate of registration has to contain

[i] the name and address of the establishment,

[ii] the maximum number of workmen to be employed as contract labour in the establishment,

[iii] the type of business, trade, industry, manufacture or occupation which is carried on in the establishment,

[iv] the names and addresses of contractors,

[v] nature of work in which contract labour is employed or is to be employed and

[vi] other particulars relevant to the employment of contract labour

Also read with Rules 21 (2), every application for the grant of a license shall be accompanied by a certificate by the principal employer in Form V to the effect that the contractor has been employed by him as such in relation to his establishment.

The principal employer further undertakes to be bound by all the provisions of the Act and the rules made thereunder in so far as the provisions are applicable to him in respect of the employment of contract labour by the contractor.

In this regard, I’m supported by the virtue of The Supreme Court verdict  in Gammon India Ltd. and Ors. v Union of India (UOI) and Ors., AIR 1974 SC 960: (1974)I LLJ 489 SC. The Hon\'ble Supreme Court has put the contractor and sub-contractor on the same pedestal qua the establishment, in terms of the CLRA Act. They are both doing the work of the establishment, and therefore Form-V has to be issued by the Principal Employer. The concept of principal employer is inextricably linked with the establishment

I trust that this will secure my readers appeal regarding Principal Employer liability to provide Form V to sub contractor.

Adding to this, I would also like to inform that in absence of valid contract labour license. As per Section 12 - Licensing of contractors: No Contractor shall undertake or execute any work through contract labour except license issued by licensing officer.

So, I would like inform you that in the absence of a valid license, a contract workman would be deemed to be the workman engaged directly by the principal employer.

In this regard I am supported by the verdict on case of  P&H HC: Chet Ram Vs. PO Labour Court Faridabad 2011

In case any further elucidation needed please let me know

Apprentices Act 1961 - why you Ignore this

The Government of India has taken up several initiatives to promote skill development in the country. In addition to amending The Apprentices Act, 1961, the Government has also brought about amendments to the Apprenticeship  Rules, 1992 and launched a National Web Portal for Apprenticeship Training  ( http://mhrdnats.gov.in/ ) as a part of its drive towards achieving efficient implementation of the law related to apprentices. 

The Apprentices Act, 1961 (Apprentices Act) was amended in December 2014 by the Apprentices (Amendment) Act, 2014 (Amendment Act) then soon corresponding amendments were also introduced in the Apprenticeship Rules, 1992 (Apprenticeship Rules) in June 2015, by the Apprenticeship (Amendment) Rules, 2015 (Amendment Rules); and in September 2015, the Government launched the National Web Portal for Apprenticeship Training (National Portal) to facilitate the movement of processes under the Apprentices Act to an online forum. 

Employers are now required to obtain a registration on the National Portal and also upload data related to number of employees, nature of technical activities etc. 

An employer falling under the purview of the Apprentices Act, and who has 40 or more employees, is now obligated to appoint between 2.5% to 10% of the average strength of the workforce in the preceding financial year as apprentices for each financial year. Interestingly, contract workers are also included to calculate the strength of the workforce.

Establishments are required to disclose the number of apprentices they intend to engage in each quarter.

Engaging apprentices from Scheduled Castes, Scheduled Tribes and Other Backward Classes in designated trades

The requirement to reserve a certain number of places for apprentices from Scheduled Castes, Scheduled Tribes and Other Backward Classes existed even prior to the Amendment Rules. However, the ratio has changed according to Schedule II-A of the Apprenticeship Rules. In some states such as Karnataka and Maharashtra, the ratio has increased, in some states such as Delhi it has remained the same and in others it has even decreased.

Earlier there were no specific guidelines on engaging individuals from Other Backward Classes as apprentices, but the Amendment Rules suggest that this will be in accordance with the norms followed in the relevant state or union territory.

Introduction of optional trades

Employers could only engage apprentices in 'designated trades' which are specifically notified, such as carpentry, data preparation and computer software, programming and systems administrative assistant, etc.
Now, in addition to the designated trades, an employer can also engage apprentices in an 'optional trade' i.e. a trade or a field which has not already been 'designated'.
For apprentices engaged in an optional trade, the employer has more flexibility to decide the duration of the apprenticeship (subject to certain parameters set out in the Amendment Rules), identify the proposed syllabus for training these apprentices, etc.

Inclusion of non-engineering apprentices and related discrepancies

Prior to the Amendment Act and the Amendment Rules, graduate or technician apprentices only included individuals holding (or undergoing training to hold) a degree or diploma in engineering or technology. The scope has now been expanded to include even non-engineering degree holders and diploma holders.

However, it is relevant to note that, unlike in the case of engineering degree and diploma holders (for whom the Government reimburses the employer for 50% of the minimum stipend), the Government will not contribute towards the stipend for such non-engineering degree holders and diploma holders. Further, there is no clarity yet on the exact qualifications or designated trades for such apprentices.

In light of the increased focus on this legislation, it is important for employers to assess their compliance status, since there may soon be a greater shift towards implementation.

Related Post

• Payment to Apprentice

• Apprenticeship- Form Schedules & Returns 

EPF dues solely on the basis of balance sheet without identification of beneficiaries is not sustainable

Assessment of EPF dues solely on the basis of balance sheet without identification of beneficiaries is not sustainable

An appeal was filed by the appellant before the Employees' Provident Fund Appellate Tribunal, challenging the order dated 23.09.2011, passed by the EPF Authority, under section 7-A of the Act.

Brief Facts:

Dues were assessed on the basis of balance sheet without identification of beneficiaries on EO's report. Appellant's contention is that employees were engaged through different registered contractors from time to time. EPF Authority submitted that the appellant neither produced list of contractors nor list of employees and in such circumstances there was no option with the department, except to pass the impugned order.

Reasons & Decision:

The entire case of assessment of EPF dues is for the period April 2005 to March 2011. Neither EO nor the EPF Authority is known to the beneficiaries till date. Dues, if collected, would not give any benefit to any of the employees. Hence, impugned order is sets aside. Matter is remanded back to the EPF Authority for passing a speaking order by getting joined the alleged contractors, having identified the beneficiaries and only on the basis of balance sheet, in accordance with law. Appellant is supposed to furnish complete list of contractors and employees within 2 months from the date of this order to the EPF Authority. Any amount deposited shall not be disbursed till further order.

Food Corporation of India vs. APFC, Jabalpur ATA No. 09 (8) 2012 decided on 7.11.2016 

Credit - P. Khagarwal's blog

Employee PF Exemption agreement between India and Australia

Employees’ Provident Fund Organisation

(Ministry of Labour & Employment, Govt. Of India)

Head Office

Bhavishya Nidhi Bhawan, 14- Bhikaji Cama Place, New Delhi — 110066

File No IWU/7(2)2009/Australia/Vol –I/24955 Dated-16.03.201

To,

All Additional CPFCs (Zones)

All Regional PF Commissioner, ROs and SROs

Subject : Social Security Agreement between the Republic of India and Australia

Sir,

In pursuance to the Social Security Agreement (SSA) signed with Australia the Government of India has now notified vide order No O1-11012/12/2012-EP-II (Vol –III) dated 14-01-2016 that the above Agreement has entered into force with effect from 01-01-2016. The text of the Agreement is available on the official website of EPFO, www.epfindia.gov.in

2. The agreement provides for detachment, totalisation and portability. Under the detachment clause, the employees of one country deputed by their employers to the other country on short –term assignment are exempted from Social Security contribution in that country up to a period of 60 months. However, such exemption can be availed on the basis of “Certificates of Coverage.”

3. In view of above, concerned employee through employer may apply for the “Certificate of Coverage” in the prescribed format (copy enclosed). Since the “Certificate of Coverage” are to be issued by the RO/SRO, it may be ensured that on receipt of the application complete in all respect, necessary action is taken by the concerned RO/SRO for issuing COC in accordance with the consolidated guidelines issued by the Head Office view letter No IWU/7(15)2011/Gen (Software)/9209 dated 13-08-2013.

4. In case any further clarification is required, IWU Head Office may be contacted.
Yours Faithfully,
(Chandramauli Chakraborty) Additional Central PF Commissioner (Pension & IWU)
———————————-

SOCIAL SECURITY AGREEMENT WITH THE REPUBLIC OF AUSTRALIA

The Government of India has entered into an Agreement on Social Security Agreement with Australia. Following the principles of reciprocity this, agreement is intended to benefit the employees of both India as well as the Australia. The agreement has come into force w.e.f 01-01-2016

The Agreement provides inter-alia for posting i.e. detachment up to a period of 60 months for employees of both the countries. Accordingly the employees of one country deputed by their employers to the other country on short-term assignment for a pre-determined period of up to a period of 60 months need not remit Social Security Contributions in that country. Thus the employers are saved from making double Social Security contributions for the same set of employees thereby enhancing the competitiveness of their products and services.

Employees’ Provident Fund Organization (EPFO) has been identified as the agency of implement the provisions of the agreement in India and has been authorized to issue “Certificate of coverage” to the employees of Indian establishment posted to the Australia.

The employers, who have already deputed/intend to depute their employees to the Australia can avail of this facility. The application form for this purpose is available on the official web site http://www.epfindia.gov.in. The “Certificate of coverage” will be issued by concerned RO/SRO where the application is submitted. They may also contact their jurisdictional Regional Provident Fund Commissioner or the International Workers Unit in the Head Office at 14, Bhaikaji Cama Place, New Delhi -110066 for any further details.

Download documents

Wage Discrimination Between Permanent And Temporary Employees

Equal Pay for Equal Work in India

• Temporary employees performing similar duties and functions as discharged by permanent employees entitled to draw wages at par with permanent employees in the government sector.
• Mere difference in nomenclature would not dis-entitle an employee from being paid the same wages as permanent employees.
• Any act of paying less wages as compared to others similarly situated, constitutes an act of exploitative enslavement.

The constitutional principle of 'equal pay for equal work' has been upheld by the Supreme Court of India ("SC") with respect to temporary employees' vis-à-vis permanent employees in the government sector. In State of Punjab and Ors. v. Jagjit Singh and ors.(Decided on October 26, 2016), the SC has ruled that temporary employees performing similar duties and functions as discharged by permanent employees are entitled to draw wages at par with similarly placed permanent employees. The principle must be applied in situations where the same work is being performed, irrespective of the class of employees.

Facts:

The instant case arose out of conflicting judgments of the Punjab & Haryana High Court ("P&H High Court"). The P&H High Court has analysed the question as to whether temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like) are entitled to the same wages as that of permanent employees, if they discharge similar duties and responsibilities as that of permanent employees. 

The P&H High Court, in State of Punjab & Ors. v. Rajinder Singh & Ors. (LPA no. 337 of 2003, decided on 7.1.2009), took the view that temporary employees would not be entitled to the minimum of the pay-scale as was being paid to similarly placed permanent employees. 

However, the P&H High Court in State of Punjab & Ors. v. Rajinder Kumar (LPA no. 1024 of 2009, decided on 30.8.2010) took a contrary view and held that temporary employees would be entitled to minimum of the pay-scale,alongwith perm issible allowances (as revised from time to time), which were being given to similarly placed permanent employees.

Given the conflicting views, the matter was referred to a full judge bench of the P&H High Court in Avtar Singh v. State of Punjab & Ors (CWP no. 14796 of 2003). The full judge bench of the P&H High Court, while adjudicating upon the issue, concluded that temporary employees are not entitled to the minimum of the regular pay-scale, merely on account of the reason that the activities carried out by daily wagers and permanent employees are similar. However, this rule was subjected to two exceptions, wherein temporary employees would be entitled to wages at par with permanent employees:

1. If the temporary employee has been appointed in a regular sanctioned post after undergoing a selection process based on fairness and equality of opportunity to all other eligible candidates
2. If the temporary employee has been appointed in a post which is not a regular sanctioned post, however, their services have been availed continuously, with notional breaks, for a sufficient long period.

The instant case before the SC arises out of a challenge raised against all the three aforementioned judgments.

Judgment:

Analyzing in length the principles laid down by various courts, the SC observed that the issue at hand necessitated a bird's eye view on the underlying ingredients which govern the principle of 'equal pay for equal work'.

The principle has been extensively deliberated in a catena of decisions. In order to make the determination, the SC examined

1. The situations where the principle was extended to employees engaged on permanent basis and thereafter 
2. The situations in which the principle was extended/declined to different categories of temporary employees. Accordingly, various principles have been discerned and distinguished by the SC. Analyzing claims by temporary employees under the principle, the SC observed:

1. Not paying the same wages, despite the work being the same, is violation of Article 14 of the Constitution of India (Article 14 of the Constitution guarantees the right to equality to every citizen of India and embodies the general principles of equality before law and prohibits unreasonable discrimination between persons.) and amounts to exploitation in a welfare state committed to a socialist pattern of society (Dhirendra Chamoli v. State of U.P; (1986) 1 SCC 637) 
2. The right of equal wages claimed by temporary employees emerges, inter alia, from Article 39 which deals with certain principles of policies to be followed by the state. It specifically requires the state to strive for securing equal pay for equal work of both men and women. of the Constitution ( D.S. Nakara v. Union of India; (1983) 1 SCC 304; Surinder Singh v. Engineer-in-Chief, CPWD; (1986) 1 SCC 639). 
3. The claim for equal wages would be sustainable where an employee is required to discharge similar duties and responsibilities as permanent employees and the concerned employee possesses the qualifications prescribed for the particular post.
4. In a claim for equal wages, the duration for which an employee remains or has remained engaged, the manner of selection/appointment etc. would be inconsequential, insofar as the applicability of the principle is concerned (Bhagwan Dass v. State of Haryana; (1987) 4 SCC 634)
5. Based on the principle flowing from Article 38(2) of the Constitution, the Government cannot deny a temporary employee at least the minimum wage being paid to an employee in the corresponding regular cadre, alongwith dearness allowance and additional dearness allowance, as well as all other benefits which are being extended to casual workers.
6. The classification of workers (as unskilled, semi-skilled and skilled), doing the same work, into different categories, for payment of wages at different rates is not tenable. Such an act of the employer would amount to exploitation and shall be arbitrary and discriminatory, and therefore, violative of Articles 14 and 16 of the Constitution (deals with equality of opportunity in matters of public employment.)
7. If daily-wage employees can establish that they are performing equal work of equal quality, and that all the other relevant factors are fulfilled, a direction by a court to pay such employees equal wages (from the date of filing the writ petition), would be justified (Daily Rated Casual Labour Employed under P&T Department through Bhartiya Dak Tar Mazdoor Manch v. Union of India; (1988) 1 SCC 122)

The SC observed that an employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities and certainly not in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone who is compelled to work at a lesser wage does not do so voluntarily - he/she does so to provide food and shelter to his/her family, at the cost of his/her self-respect and dignity, at the cost of his/her self-worth, and at the cost of his/her integrity. Any act of paying less wages as compared to others similarly situated, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation. The SC further observed that India being a signatory to the International Covenant on Economic, Social and Cultural Rights, 1966, there is no escape from the obligations thereunder in view of the different provisions of the Constitution. Thus, the principle of 'equal pay for equal work' constitutes a clear and unambiguous right and is vested in every employee, whether engaged on a permanent or temporary basis.

Accordingly, the SC set aside the decisions rendered by the full judge bench of the P&H High Court in Avtar Singh v. State of Punjab & Ors. and the division bench in State of Punjab & Ors. V. Rajinder Singh while the decision of the division bench in State of Punjab & Ors. v. Rajinder Kumar was upheld, subject to the modification that the concerned employees would be entitled to the minimum of the pay-scale of the category to which they belong but would not be entitled to allowances attached to the posts held by them.

Analysis

This judgment is indeed a welcome step and provides the right direction in terms of ensuring equality. Non-permanent employees are meant to be used only for business exigencies and not for wage arbitrage. Unfortunately, there continues to be instances of discrimination of such non-permanent staff in India, especially contract labour, which discrimination must be avoided at all costs. Infact, the Contract Labour (Regulation & Abolition) Act, 1970 ("CLRA") requires the contractor to ensure that the rates of wages payable to the workmen of the contractor are not less than the rates prescribed under the Minimum Wages Act, 1948. The SC judgment should, in our view, help change the way employers approach such non-permanent staff leading to significant reduction in wage discrimination.

Having traversed the legal parameters with reference to the application of the principle of 'equal pay for equal work', in relation to temporary employees, the most important factor that would require determination is whether the concerned employees are rendering similar duties and responsibilities as are being discharged by permanent employees, holding the same/corresponding posts. This judgment of the SC makes it clear that a mere difference in nomenclature is not sufficient to dis-entitle a temporary employee from being paid wages at par with permanent employees.

Only Informing Retrenched Workman to collect his Dues, is Not Compliance

BOMBAY HIGH COURT

Hon'ble Mr. K.K. Tated, J.

CAJ W.P. No. 1564/2013, D/–9-4-2013

Vindyachal Security, Detective & Allied Services Pvt. Ltd. vs. Assistant Provident Fund Commissioner

EMPLOYEES' PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952 – Sections 7A, and 7B(1) – EPF Authority called upon the petitioner to pay the arrears of dues by passing an order without providing copy of deposition of Enforcement Officer – EPF Authority also rejected the review application, filed by the petitioner under section 7B(l) of the Act without hearing the petitioner – Petitioner challenged that order of the EPF Authority in writ petition – Held, whenever, the powers are to be exercised for quasi -judicial purpose or whenever the authority is acting as a quasi -judicial authority, the hearing is a must because passing of any order is to visit with civil consequences – Opportunity of hearing is must to comply with the principles of natural justice – Hence, impugned order is set aside – Matter remanded to the Authority to decide it on its own merits, providing all documents relied by it, to the petitioner. Paras 7 to 10

For Petitioner : Mr. S.C. Naidu a/w Mr. T.R. Yadav i/b M/s. C.R. Naidu and Co., Advocates.

For Respondent : Mr. Suresh Kumar, Advocate Mr. S. Yadagiri, Enforcement Officer present in the Court.

IMPORTANT POINTS

Whenever, the powers are to be exercised for quasi -judicial purpose or whenever the authority is acting as a quasi -judicial authority, the hearing of the parties concerned is a must because passing of any order is to visit with civil consequences.

Opportunity of hearing is must to comply with the principles of natural justice.

No doubt, clause (a) of proviso to sub-section (4) of section 7B of the Act does not make it mandatory to authority to give hearing if the application is to be allowed but thereby it cannot be read that no hearing is necessary if application is to be rejected.

P.C.

PER K.K. TATED, J.—1. Heard the learned counsel for the petitioner.

2. By consent, matter is taken on board for final hearing at the stage of admission.

3. By this petition, under Article 226 and 227 of the Constitution of India, petitioner challenges the order under section 7A of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 dated 11th December, 2012 and the order dated 2nd January, 2013 under section 7B(1) of the said Act. By order dated 11th December, 2012 under section 7A of the said Act, Authority called upon the petitioner to pay a sum of Rs. 3,94,21,674 towards dues under the said Act.

4. It is the case of the petitioner that at the time of passing order dated 11th December, 2012, the Assistant Provident Fund Commissioner relied on deposition of Enforcement Officer. He further states that copy of the said deposition was not provided by the Authority and therefore, the order passed by the Assistant Provident Fund Commissioner dated 11th December, 2012 is against justice, equity and good conscious and same is liable to be set aside.

5. The learned counsel for the respondent after taking instructions from the concerned officer, Mr. S. Yadagiri who is present in the court made a statement that it is an admitted fact that copy of deposition of Enforcement Officer was not provided to the petitioner.

6. In view of this fact, it is crystal clear that Authority passed impugned order dated 11th December, 2012 without providing the material facts and documents to the petitioner and therefore, same is against justice, equity and good conscious and same is liable to be set aside.

7. The learned counsel for the petitioner further pointed out that the order is passed by the Assistant Provident Fund Commissioner in Review Application under section 7B(1) of the said Act without hearing the petitioner. These facts have also been admitted by the Advocate for the respondent. Counsel for the petitioner in support of his contention states that if the order is passed without hearing, the same is liable to be set aside. He relies on the judgment of the Gujarat High Court in the matter of Cookvel Foods India Private Limited v. Assistant Provident Fund Commissioner in Civil Appeal No. 17769 of 2003 dated 25th March, 2005 in para 5 as under:

“(5) No appeal shall lie against the order of the officer rejecting an application for review, but an appeal under this Act shall lie against an order under review as if the order passed under review were the original order passed by him under section 7A.

8. The perusal of Section 7B shows that if a new ground is discovered or new matter or evidence could not be produced to the notice of the authority, the review application can be preferred. What would be the scope and ambit of review on the basis of new material or which can be said as new material etc. is not the subject matter of this petition, therefore, it would not be necessary to examine the scope and ambit of the power of review under Section 7B of the Act on the aforesaid aspects, except the only aspect as to whether the opportunity of hearing is required or not. Sub-section (3) of Section 7B provides that where it appears to the officer receiving an application for review that there is no sufficient ground for a review, he shall reject the application and, therefore, the contention possibly based on the said sub-section is that there is no express provision made for giving opportunity of hearing. It is well settled that whenever the powers are to be exercised for quasi-judicial purpose or whenever the authority is acting as a quasi-judicial authority, the hearing is a must, because passing of any order is to visit with civil consequences. Such principles are in certain matters read even for administrative decision. In the present case, if the scheme of the Act, more particularly sections 7A and 7B are considered, firstly the powers under section 7A with the Provident Fund Authority are as quasi-judicial authority. Express powers are provided as per Section 7B for review on the ground mentioned in review. Even otherwise also, it is well settled that even if the statute does not provide for opportunity of hearing unless it is expressly excluded or unless there are any emergent circumstances warranting for such purpose, the section or any power under statute as that of quasi judicial authority are to be read with the principles of natural justice and such scheme of giving opportunity of hearing by observance of principles of natural justice is to be read as inbuilt mechanism of any decision-making process by a quasi judicial authority. Therefore, the contention of Mr. Mehta that hearing is required only if new material to the satisfaction of the authority is found for exercise of the power of review cannot be accepted. Whether such material is new material or whether such contention is required to be considered for attracting the power of review or not would also require that the -person concerned who has preferred the review application is heard. The authority before concluding the proceedings of the review application must give an opportunity of hearing to the party concerned. Mr. Mehta made an attempt to submit that in proviso to Sub-section (4) of section 7B hearing is provided as per Clause (a) and, therefore, power under section 7B(3) may not be read with principles of natural justice. As such Clause (a) of proviso to sub-section (4) of section 7B does make it mandatory to authority to give hearing if the application is to be allowed but thereby it cannot be read that no hearing is necessary if application is to be rejected. Since in the present case, as observed earlier, it is an admitted position that no opportunity of hearing has been given, the order passed in review application dated 26.12.2002 cannot be sustained in the eye of law and deserves to be quashed and set aside on the ground that opportunity of hearing has not been given.”

9. Considering the fact that the Advocate for the respondents admits that at the time of deciding Review Petition, personal hearing was not given to the petitioner and the law laid down by the Gujarat High Court in the matter of Cookvel Foods India Private Limited v. Assistant Provident Fund Commissioner, (Supra), I am of the opinion that it is necessary to set aside the order dated 2nd January, 2013 dismissing the petitioner's Review Application.

10. The learned counsel for the respondents after taking instructions from his officer who is present in the court makes a statement that they will provide all the documents relied by them in the proceeding under section 7A of the said Act either to the petitioner or his Advocate on record within four weeks from today. Statement is accepted.

11. Considering these facts, petition is disposed of with following directions:

·         Order dated 11th December, 2012 passed under section 7A of the said Act and order dated 2nd January, 2013 under section 7B(1) of the said Act is set aside.

·         Matter is remanded to the 7A Authority to decide on its own merits.

·         Respondents to provide all documents relied by them in 7A proceeding either to petitioner or their Advocate within four weeks from today.

·         Liberty granted to the petitioner to file additional application and/or documents before the 7A Authority within 8 weeks from today.

·         Authority under section 7A to decide the application as early as possible after giving hearing to both the sides and allowing them to file additional documents, if any