Kerala High Court
The Fertilisers & Chemicals vs More Than 50 Parties on 4 October, 2010
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23690 of 2005(T)
1. THE FERTILISERS & CHEMICALS
... Petitioner
Vs
1. MORE THAN 50 PARTIES.
... Respondent
For Petitioner :SRI.E.K.NANDAKUMAR
For Respondent :SRI.S.GOPAKUMARAN NAIR, SC, P.F.
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :04/10/2010
O R D E R
S.SIRI JAGAN, J.
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W.P.(C) No. 23690 OF 2005
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DATED THIS, THE 4TH DAY OF OCTOBER, 2010.
J U D G M E N T
The petitioner is a company registered under the Companies Act, owned by the Government of India. A question arose as to whether their contract workers should be enrolled as members of the Employees' Provident Fund Scheme and in respect thereof proceedings under Section 7A was initiated by the second respondent. All the employees' unions were heard in the matter and ultimately, Ext.P1 order dated 7.1.1991 was passed by the second respondent deciding as to which of contract employees are also eligible to be enrolled in the Provident Fund and computing the contribution payable in respect of those employees. The petitioner challenged the same before this Court by filing O.P. 1149 of 1991 in which by Ext.P2 judgment dated 4.3.1996 this Court confirmed Ext.P1 order. Thereafter, in the year 2000, the second respondent initiated fresh proceedings for enrollment of other workers also under Section 7A of the Employees' Provident Funds & Miscellaneous Provisions Act. Petitioner objected to the same on the ground that the same amounts to determination of escaped amount under Section 7C of the Act, which cannot be done after WP(C) 23690/2005 2 five years from the date of the original order under Section 7A. Rejecting the contentions of the petitioner, Ext.P15 order has been passed holding that the fresh proceedings under Section 7A of the Act is maintainable. Petitioner challenged the same before the Employees' Provident Fund Appellate Tribunal by filing Ext.P16 appeal. While that appeal was pending, in respect of some other workers, proceedings were initiated which culminated in Ext.P18 order whereby both on the question of limitation as well as merits, the second respondent himself came to the conclusion that Ext.P1 order cannot be reopened. That order was also cited before the Tribunal at the time of hearing . But the Tribunal, by Ext. P17 order, dismissed the appeal holding that Ext.P15 is only an interim order, against which no appeal would lie. Petitioner challenges the same.
2. According to the petitioner, the reasons stated in Ext.P15 order for re-adjudicating the matter is clearly unsustainable. The reason given in Ext.P15 that proceedings would lie under para 26 B of the Employees' Provident Fund Scheme is clearly unsustainable since para 26 B cannot have an independent existence from Section 7A is the petitioner's contention.
3. A counter affidavit has been filed by the Provident Fund Organization, wherein they would take the contention that the proceedings WP(C) 23690/2005 3 are maintainable under Para 26B of the Scheme in so far as the workers have no other place to go for seeking enrollment under the Scheme.
4. I have considered the rival contentions in detail. Admittedly, by Ext.P1, after hearing the representatives of the unions representing all the contract workers of the petitioner, it had been finally decided as to which all contract employees are entitled to be enrolled under the scheme and the amounts of contribution payable by the petitioner in respect of each. That order has been confirmed by Ext.P2 judgment of this Court. I am of the opinion that even apart from the limitation period prescribed in Section 7C of the Act, the second respondent could not have reopened Ext.P1 order in so far as Ext.P1 has merged with Ext.P2 judgment and that would amount to reopening of Ext.P2 judgment of this Court, which is not permissible under law.
5. As rightly pointed out by the leaned counsel for the petitioner, Para 26B cannot have a separate existence from Section 7A of the Act. As I have already stated, Ext.P1 order has been passed after considering the case of the entire contract workers in service at that time. It is not as if the other contract workers were not aware of those proceedings. If they were aggrieved by their non-inclusion in Ext.P1 order, they should have challenged Ext.P1 order within a reasonable time. Even otherwise, by WP(C) 23690/2005 4 Ext.P18 order, after holding that the claim put forward by 33 other employees is unsustainable on merits as well as on the ground of limitation under Section 7C, the second respondent could not have validly decided that in respect of some other employees such proceedings are maintainable. Therefore, on all grounds, the respondents could not have validly started a fresh proceeding under Section 7A of the Act for enrolling some other contract workers also for the same period after having passed Ext.P1 order which has become final in view of Ext.P2 judgment.
In the above circumstance, the impugned orders are unsustainable and accordingly, they are quashed. The writ petition is thus allowed.
S.SIRI JAGAN, JUDGE.
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