Central Information Commission
Shri Subhash Roy vs Northern Coalfields Ltd. on 10 August, 2009
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Central Information Commission
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Case No. CIC/AT/A/2007/01437
Dated: 10th August, 2009
Appellant : Shri Subhash Roy Respondents : Northern Coalfields Ltd.
This is the 2nd-appeal dated 26.7.2007 filed by Shri Subhash Roy, Singrauli against the Northern Coalfields Ltd. (NCL), Singrauli, relating to his RTI- application dated 4.12.2006.
2. The appellant in his RTI-application dated 04.12.2006 had raised the following queries:-
3. Appellant received an interim reply from Ms. Regina Baa, Dy. Personnel Manager(PARC) & CAPIO on 06.02.2007. Appellant's first-appeal before the appellate authority Shri S.K. Bartiyar, Director(Personnel) filed on 22.01.2007 was never replied to by the appellate authority.
4. His second appeal came up for hearing on 12.05.2008 when the respondents were represented by the CPIO, Shri O.P. Singh and Ms. Regina Baa, APIO and the appellant was present in person. Upon hearing the parties Commission directed the Shri Subash Roy V/s. NCL : Division Bench Appeal Case No. A-7/1437 Page 1 of 14 holders of the information of the respondent-public authority to file Sworn Affidavit as under:
(A) The system in place for deduction of PF/CMPF from workers' wages, its monitoring, the process of its depositing and other details such as calculation of interest, refund of PF/CMPF and so on. Statistics about refund claims and their disposal for the last three years were asked to be furnished. Respondents were required to provide to the Commission the names of officers managing the accounts and the records for ensuring proper disposal of PF/CMPF claims within the last three years.
(B) Affidavits to be filed by the officers regarding provisions in the agreement made with the contractor, M/s. S.K. Samanta & Company Private Limited regarding payment of bonus to the contractor along with the quantum of bonus paid to the contractor during the period 1997 to 2000.
(C) The system of stock taking of furniture in company especially furniture allotted to its senior management, including the CMD.
5. Notices under Section 19(8)(b) were issued on 26.5.2008 to the Chairman- cum-Managing Director, NCL and the Appellate Authority to show cause as to why compensation of Rs.5 lakhs (Rupees 5 lakhs) only should not be awarded to the complainant, Shri Subhash Roy. Notices under Section 20(1) were issued on 17.7.2008 to the holders-of-the-information, viz. (i) Shri P.K. Dubey, Dy. Personnel Manager, Kakri Project; (ii) Shri Manoj Kumar, Personnel Manager,CIL (HQ), Kolkata; (iii) Shri S.K. Tiwari, Dy. Personnel Manager, NCL; and (iv) Shri A.K. Mukhopadhya, G.M.(Civil), NCL.
6. Later it was decided that this matter should be heard by a larger Bench comprising Shri A.N. Tiwari and Prof. M. M. Ansari.
7. Accordingly, matter was heard by the Division Bench on 5.9.2008. Appellant was present. Ms. Shantilata Sahu, Director (Personnel); Dr. S. C. Panda, Appellate Authority; Shri A. K. Mukhopadhyay, G.M.(Civil), Shri Sunil Kumar Tiwari, Dy.P.M.(Admn.); Shri P.K. Dubey, Dy. Personnel Manager; and Shri R. R. Singh, Sr.ME & CAPIO of NCL and Shri Manoj Kumar, Personnel Manager, Coal India Ltd. were present on behalf of the respondents. An interim order was issued on 01.10.2008 directing Ms. S. Sahu Director (P), NCL to conduct an enquiry in the matter and submit it before the next date of hearing.
Shri Subash Roy V/s. NCL : Division Bench Appeal Case No. A-7/1437 Page 2 of 148. Smt. Shanti Lata Sahu, Director personal NCL conducted the enquiry and submitted a report on five points which are as follows:-
Issue No.1: System regarding deduction of Provident Fund for the workers employed by the contractors for the period 2000 to 2004 and for the period 2004 to October, 2008.
• As per the Coal Mines Provident Fund Scheme and Miscellaneous Provisions Act 1948 any workmen employed by contractor is covered under all the provisions of CMPF scheme and Misc. Provisions Act, 1948.
• The workers employed by contractors for building and construction works are excluded from the purview of this scheme as they are employed for a short duration and thus not qualified to become member under CMPF.
• A decision was taken during 2003-04 for coverage of all contractual workers for the contract which are of perennial nature of work like maintenance of Guest House, running of canteens, Horticulture works and contracts awarded for security agencies etc. • Though the contractor workers have been covered under CMPF since long, yet enforcement of the scheme in the Coal Companies started in its true spirit from June, 2003. This subject was discussed on number of occasions at different forum and also at Board of Trustee of CMPFO, which is the highest authority for implementation and enforcement of different provisions of CMPF Scheme and also to decide policy matters.
• The Commissioner, CMPF through its Regional Commissioners is the enforcing authority.
• In spite of instructions being issued from various authorities from time to time for implementation of CMPF Scheme for contract workers, the same has not been complied properly in most of subsidiary Companies.
• Therefore, the Ministry of Coal and Board of Trustees of CMPFO introduced a clause in the agreement whereby the contractors are bound to ensure deduction of PF. The contractors are also required to recover statutory dues and deposit the same along with employer's contribution (contractors share) to the respective PF office and to submit statutory returns under intimation to principal employer.
Issue No.2: System of crediting the deducted amount of PF into the workers' account for the period 2000 to 2004 and from 2004 to Oct., 2008.
• As per the CMPF Scheme and Misc. Provisions Act 1948, the amount deducted every month should be remitted to Asstt. Commissioner, CMPF in form PS-5.Shri Subash Roy V/s. NCL : Division Bench Appeal Case No. A-7/1437 Page 3 of 14
At the end of Financial Year Annual return regarding total contribution made is required to be submitted.
• The qualifying period for coverage under CMPF scheme is 30 days of attendance from the date of joining. After the employee put in attendance 30 days deduction are made.
• When the workmen qualifies for membership, his name is forwarded in form 'H' to CMPF Office, who after receipt of the same allots CMPF number to each of the workers separately and intimate to the principal employer.
• The contractor has to register himself with CMPF office and get a Registration number.
• As the contractors were not remitting the CMPF contribution deducted from the workers to the CMPF authorities, all concerns were directed by CMPF Commissioner during 2007 to deposit the amount with the CMPF through the employer i.e. coal company every month and also to submit annual statement in form V V by the contractor through the Coal Company.
Issue No.3: Actual PF deductions made from the wages of workers employed by the contractors for the period from 2000 to 2004 and from 2004 to October, 2008.
• The actual deduction of CMPF from the wages of the workers engaged by contractor started from June 2003 only.
• No deduction of CMPF was made for the period 2000 to May, 2003. Prior to June, 2003, the provision of CMPF was not enforced at NCL HQ for the contract workers engaged for different jobs.
• Though the contractors confirmed that they had deposited EPF for the workers engaged by them, yet they have not submitted any documentary proof to the management.
• For the default payment of PF dues, the management has withheld Rs. 36.65 Lakhs from the bills of the following contractors as under :
i) M/s Perfect Utility Services : Rs. 20.00 Lakhs
ii) M/s S.R. Contractions (P) Ltd. : Rs. 5.75 Lakhs
iii) M/s M.K.Agrawal & Co. : Rs. 3.90 Lakhs
iv) M/s Dhanjay Const. (P) Ltd. : Rs. 7.00 Lakhs
Shri Subash Roy V/s. NCL : Division Bench Appeal Case No. A-7/1437 Page 4 of 14
Issue No.4: The method of disbursement of PF amount deducted from the workers for the period 2000 to 2004 and from 2004 to October, 2008 to the workers through their wage accounts.
• After termination/exit of the services of contract workers, the workers are required to submit refund application to the CMPF office through their employers, i.e. contractor.
• The contractor is required to submit the same to CMPF office through Coal Company.
• The CMPF office refunds the entire amount deposited with them including interest to the member through Account Payee Cheque • So far no claim has been submitted by any contract workers who worked with the contractor at NCL, HQ.
Issue No.5: Whether the collected/deduction of PF amount as well as disbursal to the amount done fairly and systematically by the Public Authority. If not, who were responsible for it.
• Asstt. Commissioner, CMPF, Singrauli is the authority responsible for maintaining records of amount deposited by the Coal Company for the contract workers and also for disbursement of CMPF amount due to the contract workers.
• Form the year 2006-07 & 2007-08, PF has been deposited by all the contractors engaged in perennial nature of work.
9. Meanwhile replies to the show cause notices issued by the Single Bench to the CMD and the Appellate Authority under section 19(8)(b); and to (i) Shri P.K. Dubey, Dy. Personnel Manager, Kakri Project; (ii) Shri Manoj Kumar, Personnel Manager, CIL (HQ), Kolkata; and (iii) Shri A.K. Mukhopadhya, G.M.(Civil), NCL under section and 20(1) had been received vide their letters dated 15.6.2008, 4.8.2008, 1.8.2008 and 4.8.2008 respectively. The replies briefly were as follows:-
(A) Chairman-cum-Managing Director & the AA:
(i) National Coalfields Ltd. (NCL) is a Government of India undertaking located in Singrauli, a remote district of Madhya Pradesh.
(ii) In the year 2003, the administration of NCL was shifted to the New premises.
All old records were not transferred to the new premises and only pending Shri Subash Roy V/s. NCL : Division Bench Appeal Case No. A-7/1437 Page 5 of 14 files were shifted to the new administrative block. The reason for not shifting old records was that due to dilapidated condition of the old premises, closed files were damaged by humidity, moisture and termites and were not in a position to be shifted without further damaging these..
(iii) The RTI application was received on 4.12.2006 seeking information pertaining to the year 2000. The application was immediately forwarded to the section concerned headed by the General Manager, NCL on 8.12.2006, who was reminded on 21.12.2006.
(iv) Even though all records pertaining to the information sought by the applicant was not available, keeping in view the statutory period for providing information, CPIO asked the appellant vide letter dt. 4.5.2007 to deposit a sum of Rs. 2804/- as charges for information required.
(v) The applicant represented that as the information was not being provided within the statutory period, he was not liable to pay the charges. This the respondents conceded. However, he was asked to be more specific in his request for information on account of difficulty in tracing the old records which were damaged as mentioned above.
(vi) After a diligent search some of the records pertaining to the information sought by the applicant were traced by the office of the General Manager (C), NCL on 17.9.2007. These were provided to appellant on 7.11.2007.
(vii) At no point of time the respondents had any intention of denying information as sought by the applicant. It is evident that the application which was registered as application No. 135 was under active consideration and purely on account of circumstances the application could not be disposed of within the stipulated period. The Respondents were further hampered in providing the information as the officers who were dealing with the relevant files were all posted out and their personal knowledge could not be availed of. The information provided to the applicant has been conveyed on the basis of the available files and the Respondents have not furnished any misleading or false details.
(viii) The applicant is an employee of NCL and in the past had preferred several RTI applications. Applicant does not enjoy a good service record and on several occasions has been awarded punishments pursuant to disciplinary action.
(ix) The applicant being an employee of the same public authority was fully aware of the circumstances leading to the delay, which neither caused any loss nor detriment to the applicant, as the information sought by him was not directly related to the applicant or connect with his public duties. The applicant does not require the information for any pending court case etc. nor has any of the Shri Subash Roy V/s. NCL : Division Bench Appeal Case No. A-7/1437 Page 6 of 14 employees covered by the Provident Fund Act, sought the information for their personnel use.
(B) Sh. P.K. Dubey, Dy. Personnel Manager: Neither CPIO nor any officer had sought his assistance in the matter. As such, there is no question of non- furnishing or delayed furnishing information.
(C) Shri Manoj Kumar, Personnel Manager: He joined NCH(HQ), Kolkatta on 15.10.2007 on transfer from NCL. His assistance was sought u/s. 5(4) vide letter dt. 21.11.2007 by Shri Pathak and he furnishedd reply vide letter dt. 26.11.2007.
(D) Shir A.K. Mukhopadhya, G.M.(Civil):
• He joined as GM (Civil) of NCL on 1.4.2006 while the information asked were related to prior to the year 2002.
• Admn. Block was shifted to the new premises in 2003; but the old records could not be shifted as those were all damaged on account of humidity, moisture and termites.
• The officers who dealt with relevant files had been posted out and their personal knowledge could not be availed of.
• After a deligent search, records pertaining to Item-3(Furniture) were traced by concerned section and sent to O/o GM(Civil) on 8.8.2007 and the same was sent to PIO on 10.8.2007.
• With regard to Stock Register, etc. for furniture (Item -3), the responsibility of keeping & maintaining Stock Register vests with GM(Admn.) and these are not maintained by GM(Civil).
• Regarding Item 2 (Bonus), the information was not available in the o/o GM(Civil) and it was collected from different projects and units of NCL. Moreover, information was retrieved from different old files maintained by different officers and then compiled in the required format and sent to CPIO on 5.5.2008.
• The delay has neither caused any loss nor detriment to the applicant.
• At no point of time, he had any intention of denying or delaying information as sought by appellant. The RTI application was under active consideration & purely on account of extra-ordinary circumstances explained above, the application could not be replied to within the stipulated time. There was no Shri Subash Roy V/s. NCL : Division Bench Appeal Case No. A-7/1437 Page 7 of 14 willful delay on his part and the delay was due to information sought was relating to 8 years old and shifting of Admn. Office in the intervening period.
10. The affidavits dated 19.6.2008 were also received from Shri A. K. Mukhopadhya, G.M.(Civil) and Shri Nirnajan Das, Director (P&P), Singrauli Colliery. They sated as follows:
(A) Shri A.K. Mukhopadhya,G.M.(Civil), Singrauli Colliery He was asked to furnish the details as follows:
i) Details regarding system in place of deduction of P.F./CMPF of contract labour,
ii) Statistics about refund claims and their disposal for the last 3 years,
iii) Details with regard to officers managing the accounts/funds.
iv) Details regarding old furniture and stock register etc.
v) Agreement with regard to payment of bonus to M/s. S.K. Samanta & Co.
Pvt. Ltd.
He stated that on the basis of his personal knowledge and records in his possession, he was in a position to answer queries pertaining to contract of M/s. S.K. Samanta & Co. Pvt. Ltd. However, the details of furniture and the issue of Provident Fund do not pertain to his section and are not a part of his responsibility. In compliance of directions of the Commission, he had sought necessary details from GM(Admn.) and based on information made available by him, he had submitted his response. The responsibility of maintaining Stock Register and complying with Company's instructions on the subject vests with Shri A.K. Verma, GM(Admn.). As per directions of the Commission, the same would be produced during the hearing.
(B) Shri Nirnajan Das, Director (P&P), Singrauli Colliery He stated that he was asked to furnish details of Agreement with regard to payment of bonus to M/s. S.K. Samanta & Co. Pvt. Ltd. He has sought necessary details from GM(Civil) and based on that he was submitting his reply. A total of 21 contracts were executed with the said company. These contracts were for construction of urgently required infrastructures such as workshop, water supply pipe lines etc. Therefore, a bonus clause was incorporated in agreements of 10 Shri Subash Roy V/s. NCL : Division Bench Appeal Case No. A-7/1437 Page 8 of 14 contracts. This clause would have been applicable to any of the successful bidders was not by way of any undue favour to the said company.
11. Appellant submitted a rejoinder dated 12.6.2008, which is reproduced below:-
Shri Subash Roy V/s. NCL : Division Bench Appeal Case No. A-7/1437 Page 9 of 14 Shri Subash Roy V/s. NCL : Division Bench Appeal Case No. A-7/1437 Page 10 of 14 Shri Subash Roy V/s. NCL : Division Bench Appeal Case No. A-7/1437 Page 11 of 1412. Matter was finally heard on 17.4.2009 in the presence of Ms. Shantilata Sahu, Director (Personnel); Dr. S.C.Panda, Appellate Authority; Shri A.K. Dhawan, CPIO and Shri A.K. Mukhopadhyay, G.M.(Civil). The appellant was absent.
13. Subsequently, the appellant Shri Subash Roy submitted an affidavit dated 13.4.2009 stating that he was suffering from malaria and that was why he could not attend the hearing. He also pleaded that (i) no information relating to payment of bonus of Rs. 18 crore to M/s. S.K. Smanta was provided to him; (ii) No inspection of old furniture of Kolkata Desk Officer, NCL headquarters, Singrauli, which they had received back, was got done by G.M. (Civil), NCL; and (iii) No action had been taken towards payment of CMPF/EPF for the year 2000 to 2008. The appellant Shri Subash Roy has therefore requested that all the above 3 issues be referred to the C.B.I.
14. Considering the report submitted by the Director (P), CIL, Commission noted as under:
i) As per the Coal Mines Provident Fund Scheme and Miscellaneous Provisions Act 1948 any workmen employed by a contractor is covered under all the provisions of CMPF scheme and Misc. Provisions Act, 1948. However, enforcement of the scheme in the Coal Companies started in its true spirit from June, 2003 and the actual deduction of CMPF from the wages of the workers engaged by contractor started only from June 2003.
ii) The Commissioner, CMPF through its Regional Commissioners is the enforcing authority. For the proper implementation of the CMPF Scheme for contract workers in most of subsidiary Companies, the Ministry of Coal and Board of Trustees of CMPFO introduced a clause in the agreement whereby the contractors were bound to ensure deduction of PF for each worker engaged. The Shri Subash Roy V/s. NCL : Division Bench Appeal Case No. A-7/1437 Page 12 of 14 contractors were also required to recover statutory dues and deposit the same along with employer's contribution (contractors share) with the respective PF offices and to submit statutory returns under intimation to principal employer.
iii) Regarding the system of crediting the deducted amount of PF into the workers' account, it was noted that as per the CMPF Scheme and Misc. Provisions Act 1948, the amount deducted every month should be remitted to the Assistant Commissioner, CMPF in the prescribed form. At the end of Financial Year Annual return regarding total contribution made is required to be submitted. There has been a qualifying period, i.e. 30 days of attendance from the date of joining, for coverage under CMPF scheme, and thereafter the deductions are made. The contractor is required to register himself with CMPF office and get a Registration number. From time to time corrective measures were being taken by CMPF Commissioner.
iv) For the default in payment of PF dues, the NCL management has withheld a total amount of Rs. 36.65 laks from the bills of 4 contractors viz., M/s. Perfect Utility Services (Rs. 20 Lakhs); M/s S.R. Contractions (P) Ltd. (Rs. 5.75 Lakhs); M/s M.K.Agrawal & Co. (Rs. 3.90 Lakhs) and M/s Dhanjay Const. (P) Ltd. (Rs. 7 Lakhs).
v) Regarding the method of disbursement of PF amount deducted from the workers, the Commission observed that on termination/exit of the services of contract workers, the workers are required to submit refund application to the CMPF office through their employers, i.e. contractor, who submit the same to CMPF office through Coal Company. Thereafter CMPF office refunds the entire amount deposited with them including interest to the member through Account Payee Cheque. According to the NCL, so far no claim has been submitted by any contract workers who worked with the contractor at NCL, HQ.
vi) Assistant Commissioner, CMPF, Singrauli is the authority responsible for maintaining records of amount deposited by the Coal Company for the contract workers and also for disbursement of CMPF amount due to the contract workers.
Form the year 2006-07 & 2007-08, PF has been deposited by all the contractors engaged in perennial nature of work.
15. The Commission observed that though the NCL authorities have withheld an amount of Rs. 36.65 lakhs from the bills of 4 contractors, yet they did not have the names and addresses of the contract workers, to whom the money actually belongs to. The NCL authorities are therefore, advised to verify the details of workers from the respective contractors so that the withheld money could be deposited in the CMPF accounts of the respective workers. This exercise should be completed within 4 months of receipt of this order. The details should be uploaded in the website of the public authority, copies of the same be displayed in the notice boards of every office and copies should also be forwarded to the workers unions for giving wide publicity. Further, the Commission also observed the procedure of Shri Subash Roy V/s. NCL : Division Bench Appeal Case No. A-7/1437 Page 13 of 14 refund of CMPF to the workers when it is due, is somewhat cumbersome. The contract workers are required to submit their refund applications through their respective employer / contractor, who forward the same to the CMPF office through Coal Company. Once the deductions are made by the contractor from the wages of contract workers and deposited it to the CMPF office through respective Coal Company, the role of contractor should be done away with for refund application. The refund applications could be directly submitted by the contract workers to the respective offices of Northern Coalfields Ltd., who after verifying the records forward the same to CMPF office in a time bound manner. The Commission therefore recommends to the NCL authorities that they should, in consultations with the CMPF authorities, evolve an easy and workers-friendly procedure for refund of the CMPF dues.
16. In view of the Enquiry Report of the Director, CIL, it was decided not to pursue this matter any further as the respondents have agreed to effect the systemic changes required for monitoring of the funds collected from the workers through the contractors. Commission also appreciates the painstaking work which Director (P), CIL did in this matter which threw a flood of light on various aspects of this complex problem. It is because of her effort that now it is possible to say with some amount of confidence that the amounts have been duly credited by the contractors to the public authority and is currently held by them. Steps will need to be taken to disburse these amounts to the workers who are entitled to receive it. Smt. Shantilata Sahu, Director, CIL deserves the praise for her research and painstaking work in the matter.
17. We also decide not to pursue with the penalty proceedings or compensation proceeding in this matter in view of the fact that it was not a straightforward matter in which an information could have been disclosed without loss of time. There were systemic malfunctioning which needed to overcome before a clearer picture emerged. It must however be said that but for the RTI petition of this appellant efforts in this direction would not have been taken and the results obtained now would perhaps have never been obtained.
18. The appeal is therefore decided to be closed.
19. Copy of this direction be sent to the parties.
Sd/- Sd/-
(Prof. M. M. ANSARI) (A.N. TIWARI)
INFORMATION COMMISSIONER INFORMATION COMMISSIONER
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