High Court dismissed the petition challenging pay scales, holding petitioners are employees of a contractor based on Section 8A, despite PF deductions by the school, denying them employee benefits.
Scheme remained relevant as pay scales denied to applicants.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
3rd March, 2017
SHOSHIT MAJDOOR SANGHTHAN (REGD.) & ANR.... Petitioners Through: None.
DIRECTOR OF EDUCATION AND ORS. ..... Respondents Through: Mr. Satyakam, ASC.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
of India, 12 petitioners who are members of the petitioner no.1/Union,
seek the relief of being granted the pay scales as per the 6th Pay Commission Report which became applicable to schools in Delhi w.e.f 1.1.2006. Petitioners claim to be the employees of the respondent
no.2/Darshan Academy Public School.
W.P.(C) No.3812/2010 Page 1 of 4
with the respondent no.2/school is that they have provident fund code numbers and provident fund is deducted from their salaries.
“ Section 8A. Recovery of moneys by employers and contractors. (1) The amount of contribution (that is to say the employer‟s contribution as well as the employee‟s contribution in pursuance of any scheme and the employer‟s contribution in pursuance of the Insurance Scheme), and any charges for meeting the cost of administering the Fund paid or payable by an employer in respect of any employee employed by or through a contractor may be recovered by such employer from the contractor, either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor.
(2) A contractor from whom the amounts mentioned in sub-section (1) may be recovered in respect of any employee employed by or through him, may recover from such employee the employee‟s contribution under any scheme by deduction from the basic wages, dearness allowance and retaining allowance (if any) payable to such employee.
(3) Notwithstanding any contract to the contrary, no contractor shall be entitled to deduct the employer‟s contribution or the charges referred to in sub-section (1) from the basic wages, dearness allowance, and retaining allowance (if any) payable to an employee employed by or through him or otherwise to recover such contribution or charges from such employee.
Explanation.- In this section, the expressions, “dearness allowance” and “retaining allowance” shall have the same meanings as in section 6.
W.P.(C) No.3812/2010 Page 2 of 4
which defines an employee and which definition of employee reads as
under:-
“ Section 2(f) “employee” means any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment, and who gets, his wages directly or indirectly from the employer, and includes any person,-
(i) employed by or through a contractor in or in connection with the work of the establishment;
(ii) engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961 (52 of 1961), or under the standing orders of the establishment;”
from the contractor. A reading of Section 8A of the Act shows that merely on account of provident funds being deducted by the employer, and which is the respondent no.2/school in this case, the petitioners will not be employees of the principal employer, being the respondent no.2/school, and such employees will continue to remain employees of the independent contractor.
W.P.(C) No.3812/2010 Page 3 of 4
respondent no.2/school and reliance is placed by the petitioners only on the aspect of deduction of their provident funds by the respondent no.2/school. In view of Section 8A of the Act, it is held that petitioners were never and are not the employees of the respondent no.2/school and therefore they cannot get benefit of the payment of salaries and other emoluments as payable to the employees and teachers of the respondent no.2/school.
to bear their own costs.
MARCH 03, 2017 VALMIKI J. MEHTA, J
Ne
W.P.(C) No.3812/2010 Page 4 of 4
3 issues framed by the court
Whether deduction of provident fund by a school makes the teachers its employees under the Employees' Provident Funds Act.
Whether Section 8A of the Act permits recovery of employer's contribution from a contractor and not directly from the worker.
Whether the petitioners are entitled to the pay scales of the 6th Pay Commission as employees of the school.
3 provisions across 2 enactments
Shoshit Madoor Sanghthan & Anr.
Director of Education
Darshan Academy Public School
Valmiki J. Mehta
As recorded by the court registry
A petition under Article 226 of the Constitution asking a High Court to issue a writ against the State or a public authority in a civil matter.
Judgements on the same questions, provisions and authorities, from every court
