Dismissed

P.Santhi v. the Commissioner

Madras HC13 Feb 2013WP/33748/2012

Case brief

AI extract

What is this about?

Coram K. Chandru J., this High Court dismissed multiple writ petitions filed by Women Self Help Groups challenging an order directing them to deduct 12% Provident Fund from wages of garbage collection workers. The Court held that under Sections 3, 16, 2A, and definitions 2(e/f) of the EPF Act, the establishment is covered.

What did the court decide?

The writ petitions were dismissed with no costs; the Corporation was directed to enforce the EPF deduction order.

P.Santhi Vs the Commissioner — Pension and Retirement Benefits | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 13.02.2013

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CORAM:

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THE HON’BLE MR. JUSTICE K.CHANDRU

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W.P.Nos.33748, 34410 to 34415, 34956 to 34962,

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35162 to 35169 of 2012 and 3369 of 2013

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P.Santhi 2. A.Krishnaveni 3. P.S.Sasireka 4. N.Vijayalakshmi 5. K.Revathy 6. M.Agilandeswari 7. R.Kamala Nageshwari 8. N.Navamani 9. S.Santha Devi 10.S.Senbagam 11.K.Radhamani 12.S.Kamalam .. Petitioners in W.P.No.33748/2012 S.Gomathy .. Petitioner in W.P.No.34410/2012 R.Chandrika .. Petitioner in W.P.No.34411/2012 L.Maheshwari .. Petitioner in W.P.No.34412/2012 L.Renuka Devi .. Petitioner in W.P.No.34413/2012 S.Lalitha .. Petitioner in W.P.No.34414/2012 S.Pandi Meenakshi .. Petitioner in W.P.No.34415/2012 J.Parvatham .. Petitioner in W.P.No.34956/2012 S.Rajeswari .. Petitioner in W.P.No.34957/2012 S.Kamalam .. Petitioner in W.P.No.34958/2012 S.Subhashini .. Petitioner in W.P.No.34959/2012 J.Balamani .. Petitioner in W.P.No.34960/2012 P.Kala .. Petitioner in W.P.No.34961/2012 M.Yogalakshmi .. Petitioner in W.P.No.34962/2012 M.Vijayarani .. Petitioner in W.P.No.35162/2012 N.Saraswathi .. Petitioner in W.P.No.35163/2012 V.M.Maheshwari .. Petitioner in W.P.No.35164/2012 V.Palanisamy .. Petitioner in W.P.No.35165/2012 J.Lakshmi .. Petitioner in W.P.No.35166/2012 Muthulakshmi .. Petitioner in W.P.No.35167/2012 C.Jothimani .. Petitioner in W.P.No.35168/2012 S.Nila .. Petitioner in W.P.No.35169/2012 B.Vellaithai .. Petitioner in W.P.No.3369/2013

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https://hcservices.ecourts.gov.in/hcservices/

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Vs.

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The Commissioner Tiruppur Corporation Tiruppur

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The Assistant Commissioner Tiruppur Corporation Tiruppur .. Respondents in W.P.Nos.33748/2012

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and 3369/2013

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The Commissioner Tiruppur Corporation Tiruppur .. Respondent in W.P.Nos.34410 to 34415, 34956 to 34962 of 2012 2. The Assistant Commissioner Tiruppur Corporation Tiruppur .. Respondent in W.P.Nos. 35162 to 35169 of 2012 Prayer in W.P.Nos.33748 of 2012 and 3369 of 2013 : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records relating to the proceedings of the 2nd respondent Corporation issued in Na.Ka.No.P4/2701/2012 dated 5.11.2012 and quash the same.

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Prayer in W.P.Nos.34410 to 34415, 34956 to 34962 and 35162 to 35169 of 2012: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records relating to the proceedings of the respondent Corporation issued in Na.Ka.No.P4/2701/2012 dated 5.11.2012 and quash the same.

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For Petitioner in all Writ Petitions except W.P.No.3369/2013 :: Mr.R.N.Amarnath For Petitioner in W.P.No.3369/2013 :: Mr.J.Franklin

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For Respondents in

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all Writ Petitions :: Mr.A.Navaneetha Krishnan, Advocate General assisted by Ms.P.Shanthi

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https://hcservices.ecourts.gov.in/hcservices/

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COMMON ORDER

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The petitioners in this batch of Writ Petitions are members of Women Self Help Groups operating within the Tiruppur Corporation. The petitioners Women Self Help Groups were able to participate in the tender process and the tender was issued by the Corporation, wherein and by which the Corporation outsourced for the collection of solid waste in the Corporation area. The preliminary collection of garbage was given to the Self Help Group for a period of one year from 9.4.2012 to 8.4.2013. In respect of each Self Help Group, they were directed to engage 16 workers and the bio-degradable waste to the extent of 1000Kg has to be collected from the respective ward and 4 Metric Tons of non-biodegradable garbage have to be collected for each day. The petitioners were given work orders by the Commissioner of Corporation on 4.4.2012. In the work order, it was stated that in respect of each worker, the daily wage fixed at Rs.170/-. As many as 25 conditions were stipulated in the said working order. Condition NO.21 stipulated that Self Help Groups have to follow upon the Government Rules and Regulations.

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However, it transpires that the Enforcement Officer of Employees Provident Fund Organisation by his communication dated 1.4.2011 demanded deduction of Provident Fund Amount from the workers so engaged by the Self Help Groups in the matter of their engagement of workers for garbage collection in the Corporation area. Thereafter, the Corporation took the legal opinion from the local Government Pleader and issued an identical impugned order dated 5.11.2012. By the impugned order, it was stated that the workers engaged by them will have to pay 12% of the salary as Provident Fund subscription and by taking the contribution of the contractor/employer, the total subscription to be paid by them works out to 13.61%. Therefore, the Corporation informed them that from the month of October 2012, they will have to deduct 12% of the salary as Provident Fund amount from the workers engaged by each Self Help Group and pay the total contribution of 13.61% to the Provident Fund Department and submit the name of the workers along with the list of deduction to the Corporation. Self Help Groups were directed to approach the Enforcement Officer for getting proper form and submit the Demand Draft along with the list of workers. Challenging the communication sent by the 1st respondent Corporation, the Writ Petitions came to be filed by the conveners of the Self Help Group.

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The contentions raised by the petitioners group was that the demand of payment of Employees Provident Fund subscription was illegal and Self Help Group workers were engaged on daily wage basis for garbage collection and they engaged only 16 workers. Since they have not been indicated as workers, they are not covered

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https://hcservices.ecourts.gov.in/hcservices/

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by the provisions of the said Act. Further, in the tender notification issued by the Corporation, there is no reference to any payment towards Employees Provident Fund and ESI amount. As per the order of allotment, each worker is paid Rs.170/- per day and on an average, the workers are paid Rs.4500/- per month. If the further deduction of 12% is made towards employee's contribution, no worker will be available for carrying out the garbage collection and it will affect the scheme. The Self Help Groups are not an establishment coming within the purview of the provisions of the Employees Provident Fund Act.

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These Writ Petitions were admitted. Pending the Writ Petitions, interim stay was granted by this Court. In all the Writ Petitions, as identical contentions were raised, all the Writ Petitions were clubbed together and a common order is passed.

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Heard both sides.

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As far as the first contention as to whether the employees engaged by the Self Help Groups are covered by the provisions of the Employees Provident Fund Act is concerned, Section 3 read with Section 16 of the Employees Provident Fund Act applies to every establishment which is a factory engaged in any Industry specified in Schedule -I and in which 20 or more persons are employed.

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By a notification issued by the Government of India on 1.4.2001 establishment engaged in rendering cleaning and sweeping services is included under the provisions of the Act. The term 'employee' is defined under Section 2(f) of the Act, which means any person who is employed for wages in any kind of work, manual or otherwise, or in connection with the work of an establishment and who gets his wages directly or indirectly from the employer and includes any person employed by or through a contractor in or in connection with the work of the establishment. Section 2(e) defines the employer, which includes, in relation to an establishment, a factory, the owner or occupier of the factory.

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Under Section 2A, it has been made clear that where an establishment consists of different departments or has branches, whether situate in the same place or in different places, all such departments or branches shall be treated as part of the same establishment. In the present case, each of the Self Help Group has engaged 16 workers and the total of the same will be amount to 368 workers. Even otherwise, since all of them are engaged by the 1st respondent Corporation, it will well open to the Provident Fund Department to pay provident fund subscription in respect of employees who are engaged for garbage collection though the work might have been outsourced by the Corporation to each Self Help Group.

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https://hcservices.ecourts.gov.in/hcservices/

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As noted already, the establishment means independent establishment of the Corporation. Therefore, the argument that the Act do not apply to the employees engaged by the petitioner Self Help Group, does not stand to reason. The further argument that at the time of floating tender and giving tender in favour of the Self Help Groups, these facts are not mentioned, also does not stand to reason because under law when the petitioners Self Help Groups are covered by the provisions of the Act, they are bound to deduct the amount from the salary of the wages of the workmen engaged by them. 12% contribution is collected from the employees' salary and therefore, there will be no difficulty for the Self Help Groups to deduct the same and pay it to the department, as directed.

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Secondly, the work order itself states that they are bound by the Rules and Regulations governed by the Government. Therefore, they cannot feign ignorance about the legal obligations provided to them. If for some reason, if any of the group insists to contest their liability to pay the amount, they will have to raise the appropriate dispute and challenge the order under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act before the appropriate forum. Certainly, this Court cannot go into the issues raised by them.

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Under the said circumstances, there is no case made out. Hence, all the writ petitions stand dismissed. No costs. The connected Miscellaneous Petitions are closed.

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Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar

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ajr To

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The Commissioner Tiruppur Corporation, Tiruppur

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https://hcservices.ecourts.gov.in/hcservices/

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The Assistant Commissioner Tiruppur Corporation,Tiruppur

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+4 (Four) Ccs to Mrs.P.Shanthi, Advocate, Sr.Nos.8786, 8787, 8790 & 8791

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+3 (Three) Ccs to Mr.R.N.Amarnath, Advocate, Sr.Nos.8963, 8964 & 8968
+1cc to Mr.J.Franklin, Advocate, Sr.No.9120
W.P.Nos.33748, 34410 to 34415, 34956
to 34962, 35162 to 35169 of
2012 and 3369 of 2013
EV(CO)
MS:25/02/2013

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https://hcservices.ecourts.gov.in/hcservices/

P.Santhi v. the Commissioner

Case brief

What is this about?

What did the court decide?

P.Santhi v. the Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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