Himachal Pradesh High Court
Ajay Kumar Sud And Others vs St. Bede'S College And Others on 6 December, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No.1803 of 2014.
Judgment reserved on: 18.11.2016.
Date of decision: 6th December, 2016.
Ajay Kumar Sud and others .......Petitioner s.
of Versus St. Bede's College and others ......Respondent s.
Coram rt The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1Yes For the Petitioners : Mr.Dilip Sharma, Senior Advocate with Mr.Manish Sharma, Advocate.
For the Respondents : Mr.K.D.Sood, Senior Advocate
with Ms.Ranjana Chauhan,
Advocate, for respondents No.1
and 2.
Mr.J.L.Bhardwaj, Advocate, for
respondent No.3.
Mr.Prince Chauhan, Advocate vice
Mr.Rahul Mahajan, Advocate, for
respondent No.4.
Tarlok Singh Chauhan, Judge .
The excellence of the education provided by an institution would depend directly on the excellence of the teaching staff and in turn that would depend on the quality and the contentment of the teachers.
Conditions of service pertaining to minimum qualifications of teachers, salaries, allowances and other conditions of service which ensure security, contentment and decent living standards to the teachers will Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/04/2017 21:41:32 :::HCHP 2 consequently enable them to render better services to the institution and the pupils.
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2. The St. Bede's College is one of the oldest and elite colleges of India having been established initially as an orphanage for the children of the British soldiers in 1864, however, thereafter in 1904 it started teachers training college. Though, till 1947 the College was of meant primarily for Christian girls, however, thereafter its doors were open to students of all the faiths.
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3. The St. Bede's College was affiliated to the H.P. University (respondent No.3) on 22.07.1970, whereas, respondent No.2 St. Bede's Educational Society is a society registered under the Societies Registration Act, 1860, which is administering respondent No.1- College.
4. The petitioners are the employees of respondent No.1- College. The moot question in this petition concerns the EPF contribution which according to the petitioners is payable to them in accordance with the H.P. University Act, 1970 and the various statutes, ordinances and regulations made under the said Act on account of respondent No.1 being affiliated with respondent No.3.
5. Respondents No.1 and 2 have opposed the claim raised by the petitioners on the ground that they cannot be compelled to contribute in excess of the statutory limit as contemplated and provided for in the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (for short 'Act').
6. It is not in dispute that respondent No.1 is affiliated to the H.P. University and as a consequence thereof has necessarily to abide ::: Downloaded on - 15/04/2017 21:41:32 :::HCHP 3 by the provisions of the H.P. University Act, 1970 and all the statutes, ordinances and regulations made under the said Act.
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7. It is also not in dispute that as per the Non-Government Affiliated College Teachers' Contributory Provision Fund Rules, the contribution of the respondent-College as per rules 60 was initially 10% and thereafter 12% and the matching contribution was being paid by of the Management.
8. However, it appears that respondents No.1 and 2 lateron rt took a decision whereby they decided to contribute only that amount towards its share as was prescribed under the EPF & MP Act.
9. This action of the respondents constrained the petitioners to approach this Court by filing CWP No. No.7655/2012 titled 'Mr.Ajay Kumar Sud and another versus Regional Provident Fund Commissioner and others' which was disposed of by this Court on 22.11.2012 by directing the parties to present themselves before the Regional Provident Fund Commissioner (respondent No.4), who after placing reliance upon the judgment of the Hon'ble Supreme Court in Marathwada Gramin Bank Karamchari Sanghatana and another versus Management of Marathwada Gramin Bank and others (2011) 9 SCC 620 held that the Employer could not be compelled for contributing in excess of the statutory limit and accordingly dismissed the claim of the petitioners.
10. Aggrieved by the decision taken by respondents No.1 and 2 and thereafter aggrieved by the order passed by respondent No.4, the petitioners have filed the instant petition claiming therein the following reliefs:-
"(i) That the impugned action of respondents No.1 and 2 whereby contribution to Provident Fund of the petitioners has ::: Downloaded on - 15/04/2017 21:41:32 :::HCHP 4 been reduced to 12% of the pay of petitioners by taking their salary @ Rs.6500/- per month from June, 2012 may be .
declared to be illegal and ultra-vires the provisions of HP University Act, 1970, Statues and Ordinances of the HP University and the provisions of EPF&MP, 1952;
(ii) That rejection of the claim of petitioners by respondent No.4 vide order dated 23.5.2013, Annexure P-9 may also be quashed and set aside;
of
(iii) That the respondent No.3 may be directed to seek compliance of provisions of Non-Government Affiliated College Teachers' Contributory Provident Fund Rules from respondents No.1 and rt 2;
(iv) That the respondents No.1 and 2 may be directed to contribute to the Provident Fund of petitioners @12% of their salary with effect from June, 2012, in accordance with the provisions of Non-Government Affiliated College Teachers' Contributory Provident Fund Rules, in the same manner in which it was being done prior to June, 2012, with all consequential benefits;
(v) That respondents No.1 and 2 may be directed to deposit with respondent No.4 interest and also discharge other statutory liabilities which would arise on account of difference in payment of Provident Fund as a result of restoration of the same since June, 2012 as per the provisions of the Non-Government Affiliated College Teachers' Contributory Provident Fund Rules."
11. Respondents No.1 and 2 have filed their common reply wherein it is averred that they had rightly taken the decision for being governed under the EPF and MP Scheme and their action is perfectly in tune with the judgment rendered by the Hon'ble Supreme Court in Marathwada Gramin Bank Karamchari Sanghatana and another versus Management of Marathwada Gramin Bank and others (2011) 9 SCC 620. On merits, the same plea has been reiterated while fling parawise reply to the petition.
12. The Himachal Pradesh University (respondent No.3) has in its reply clearly stated that the affiliated colleges are required to work ::: Downloaded on - 15/04/2017 21:41:32 :::HCHP 5 in accordance with the Act, Statutes, Ordinances, Rules and Regulations of the H.P. University, though it can manage its college in a .
manner it so chooses without impinging upon the Rules etc.
13. The Regional Provident Fund Commissioner (respondent No.4) has filed its reply wherein it has obviously supported the order passed by it.
of I have heard the learned counsel for the parties and gone through the records of the case.
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14. Chapter 38 of the First Ordinance deals with the affiliation and recognition of the Colleges and Institutions and as per Ordinance 38.5, every College and Institution seeking affiliation with the University is required to satisfy the conditions laid down in Statute 16 of the University alongwith conditions contained in Ordinance 38.5, relevant portion where of reads thus:-
"38.5. In addition to the conditions laid down in Statute 16 of the First Statues of the University, every college or institution for which affiliation is sought, shall also satisfy the following conditions:-
B. In the case of a non-Government college or institution:
(b) that there shall be an endowment fund in cash, so long as the college or institution exists:
(iv) The endowment fund shall remain intact and shall not be used by the Management for current expenses or as a security for obtaining a loan or for any other purpose. A declaration to this effect by the President/Secretary of the Management shall accompany the endowment fund fixed deposit receipts or Government securities.
(d) that the Principal/teachers of the college or institution shall be appointed in the manner and on the terms and conditions of service as laid down in the rules in Appendix A to this Chapter."
15. Appendix-A appended with paragraph 38.5. B (b) (iv) (d) (supra) deals with the Provi dent Fund Rules which has been ::: Downloaded on - 15/04/2017 21:41:32 :::HCHP 6 nomenclatured as "The Non-Government Affiliated College Teachers' Contributory Provident Fund Rules" (for short Provident Fund Rules) .
and is applicable to all teachers holding non-pensionable posts in Non-
Government Affiliated College. The conditions of rates of subscriptions are contained in Rule 58(iii)(b) which reads thus:-
"58. (iii) The amount of subscription shall be fixed by the of subscriber himself subject to the following conditions:-
(b) It may be any sum so expressed, not less than 10% of his pay and not more than his pay."
rt The contribution by the Management has been provided for in Rule 60, the relevant part thereof reads thus:-
"60. Contribution by Management:- The Management shall make contribution every month to the account of each subscriber of an amount equal to 10% of his pay expressed in whole rupees;"
16. It is not in dispute that respondent No.1 is a Non-
Government Affiliated College receiving 95% grant-in-aid from the Government.
17. It is further not in dispute that in the year 1990 the contributions standing to the credit of the petitioners and other employees alongwith shares of the management/employer were transferred to the respective accounts in the Employees Provident Fund Organization. However, thereafter, the respondent-College took a decision to contribute only that amount towards their shares that was contemplated in the EPF & MP Act whereby the contribution of the petitioners to the Provident Fund has been reduced to 12% of the pay of the petitioners by taking their salary at the rate of `6500/- per month from June, 2012.
::: Downloaded on - 15/04/2017 21:41:32 :::HCHP 718. In light of the what has been set out hereinabove, the seminal question that arises for consideration is whether respondents .
No.1 and 2 of their own and that too without the consent and concurrence of its affiliating authority (respondent No.3) could have taken the impugned decision to grant their contributions only to the extent of statutory limit as provided for under the EPF & MP Act and in of addition thereto whether the order passed by respondent No.4 on 23.05.2013 upholding the action of respondents No.1 and 2 is legal in rt the eyes of law.
19. Adverting to the first question, the parties are ad idem with respect to the respondent No.1 being affiliated with respondent No.3- University and, therefore, there is no gainsaying that once it is so, then it is bound by the regulations framed by the University as the same have force of law.
20. Reference in this regard can conveniently be made to the judgment of the Hon'ble Supreme Court in State of Maharashtra versus Shashikant S.Pujari and others (2006) 13 SCC 175 wherein the Hon'ble Supreme Court observed as under:-
"26. The colleges affiliated to the University are bound by the Regulations. The Regulations have force of law. Terms and conditions of services of a university employee as also the employees of colleges affiliated to it are governed by statutory regulations....."
21. It has to be borne in mind that the Act, Regulations, Ordinances and Statutes control and regulate the service conditions of the teachers of the affiliated colleges independently of any terms that may have been agreed to between the teachers and the Management of an affiliated college.
::: Downloaded on - 15/04/2017 21:41:32 :::HCHP 822. In Prabhakar Ramkrishna Jodh versus A.L. Pande and another 1965 (2) SCR 713, the Hon'ble Supreme Court held that such .
provisions are made by the University in exercise of its powers of affiliation granted by law and to protect the teachers of the affiliated college against any arbitrariness of the Management in terms of the efficiency in the field of education. When a college is admitted to the of privilege of affiliation or association with the University, its Management is bound by the conditions of affiliation imposed by the University under rt the Act incorporating such University.
23. Therefore, the affiliating college cannot of its own take a decision which would be contrary to any provisions of the H.P. University Act and Ordinances, Regulations and Statutes framed thereunder and any such course adopted by the affiliated college would be fraught with danger of the affiliation itself being lost.
24. Therefore, this Court has no hesitation to conclude that unilateral decision taken by respondents No.1 and 2 without seeking approval and concurrence of the H.P. University to reduce its contribution to the provident fund cannot withstand judicial scrutiny and is consequently struck down and set aside.
25. Now, adverting to the order passed by the respondent-
College, it would be noticed that the same is based upon the judgment rendered by the Hon'ble Supreme Court in Marathwada's case (supra), however, the moot question is whether the ratio laid down therein is applicable to the fact situation obtaining in the present case.
26. It is not in dispute that it was in the year 1990 that the provisions of EPF & MP Act were extended to the employees of respondent-College. By virtue of Section 15 of the Act, all the conditions ::: Downloaded on - 15/04/2017 21:41:32 :::HCHP 9 standing to the credit of petitioners alongwith the share of the Management stood transferred to the respective accounts in the .
Employees Provident fund Organization.
27. It is also not in dispute that in exercise of powers conferred by Section 5 of the Act, 1952, the Central Government framed Employees' Provident Fund Scheme, 1952. It is only paragraphs 26 of and 29 that are relevant for the purpose of adjudication of this case and are reproduced hereinbelow:-
rt "[26. Classes of employees entitled and required to join the fund.- (1)(a) Every employee employed in or in connection with the work of a factory or other establishment to which this scheme applies, other than an excluded employee, shall be entitled and required to become a member of the fund from the day this paragraph comes into force in such factory or other establishment.
(b) Every employee employed in or in connection with the work of a factory or other establishment to which this Scheme applies, other than an excluded employee, shall also be entitled and required to become a member of the fund from the day this paragraph comes into force in such factory or other establishment if on the date of such coming into force, such employee is a subscriber to a provident fund maintained in respect of the factory or other establishment or in respect of any other factory or establishment (to which the Act applies) under the same employer:
Provided that where the Scheme applies to a factory or other establishment on the expiry or cancellation of an order of exemption under section 17 of the Act, every employee who but for the exemption would have become and continued as a member of the fund, shall become a member of the fund forthwith.
(2) After this paragraph comes into force in a factory or other establishment, every employee employed in or in connection with the work of that factory or establishment, other ::: Downloaded on - 15/04/2017 21:41:32 :::HCHP 10 than an excluded employee, who has not become a member already shall also be entitled and required to become a member .
of the fund from the date of joining the factory or establishment.
(3) An excluded employee employed in or in connection with the work of a factory or other establishment to which this Scheme applies shall, on ceasing to be such an employee, be entitled and required to become a member of the fund from the of date he ceased to be such employee.
(4) On re-election of an employee or a class of employees exempted under paragraph 27 or paragraph 27-A to rt join the fund or on the expiry or cancellation of an order under that paragraph, every employee shall forthwith become a member thereof.
(5) Every employee who is a member of a private provident fund maintained in respect of an exempted factory or other establishment and who but for exemption would have become and continued as a member of the fund shall, on joining a factory or other establishment to which this Scheme applies, become a member of the fund forthwith.
(6) Notwithstanding anything contained in this paragraph, an officer not below the rank of an Assistant Provident Fund Commissioner may, on the joint request in writing, of any employee of a factory or other establishment to which this Scheme applies and his employer, enroll such employee as a member or allow him to contribute more than [six thousand five hundred rupees] of his pay per month if he is already a member of the fund and thereupon such employee shall be entitled to the benefits and shall be subject to the conditions of the fund, provided that the employer gives an undertaking in writing that he shall pay the administrative charges payable and shall comply with all statutory provisions in respect of such employee.] [29. Contributions. (1) The contributions payable by the employer under the Scheme shall be at the rate of [ten per cent] of the [basic wages, dearness allowance (including the ::: Downloaded on - 15/04/2017 21:41:32 :::HCHP 11 cash value of any food concession) and retaining allowance (if any)] payable to each employee to whom the Scheme applies:
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[Provided that the above rate of contribution shall be [twelve per cent] in respect of any establishment or class of establishments which the Central Government may specify in the Official Gazette from time to time under the first proviso to sub-section (1) of section 6 of the Act.] of (2) The contribution payable by the employee under the Scheme, shall be equal to the contribution payable by the employer in respect of such employee:
rt [Provided that in respect of any employee to whom the Scheme applies, the contribution payable by him may, if he so desires, be an amount exceeding [ten per cent] or [twelve per cent], as the case may be, of his basic wages, dearness allowance and retaining allowance (if any) subject to the condition that the employer shall not be under an obligation to pay any contribution over and above his contribution payable under the Act.] (3) The contributions shall be calculated on the basis of [basic wages, dearness allowance (including the cash value of any food concession) and retaining allowance (if any)] actually drawn during the whole month whether paid on daily, weekly, fortnightly or monthly basis.] (4) Each contribution shall be calculated to [the nearest rupee, 50 paise or more to be counted as the next higher rupee and fraction of a rupee less than 50 paise to be ignored].]"
28. Paragraph 26(6) starts with a non-obstante clause and states that an Officer not below a rank of Assistant Provident Fund Commissioner may on the joint request in writing of any employee of a factory or other establishment to which scheme applies and his Employer, enroll such employee as a member and allow him to contribute more than `6500/- of his pay per month.
::: Downloaded on - 15/04/2017 21:41:32 :::HCHP 1229. Adverting to paragraph 29, it would be noticed that proviso to sub-para 2 of this paragraph clearly provides that the Employer shall .
not be under an obligation to pay any contribution over and above his contribution payable under the Act.
30. However, the said provisions in my humble opinion are not at all applicable to the case of the petitioners as the provident fund of being paid to them is under the "Non-Government Affiliated College Teachers Contribution Provident Fund Rules and not strictly under the rt Employees Provident Fund Rules or Regulations.
31. Moreover, there is nothing in the EPF & MP Act or the Rules or even the Scheme framed thereunder to even remotely indicate that irrespective of there being any other beneficial scheme framed by the State Government, scheme framed under the Act shall have an over-riding effect. That apart, once respondents No.1 and 2 have themselves implemented the scheme, they cannot now turn around and question the scheme or deny the benefits available thereunder to the petitioners.
32. Even otherwise, the reliance being placed by the respondents on the Central Scheme is totally misplaced as the compulsion envisaged therein and thereunder upon the Employer is to pay atleast minimum wages fixed statutorily which is absolute and no Employer can say that he will not pay such minimum wages and if he does so, then he is liable to be prosecuted as in that event he would be committing an offence. As observed earlier, the scheme nowhere bars or prohibits the applicability of any other scheme which obliges the Employer to contribute a larger amount than the one envisaged and ::: Downloaded on - 15/04/2017 21:41:32 :::HCHP 13 prescribed under the Act, Rules and Scheme framed under the Central Act.
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33. Apart from the above, the Act itself provides for exemption from the operation of provisi ons of the Scheme to an establishment as a whole or its class of employees where the employee is in enjoyment of Provident Fund and the benefits of which are more favourable than of the one available under the statutory scheme. The intention of the Legislatur e was not to reduce those benefits and bring them at par with rt the Central Legislature. On the contrary, the intention of the Act is, where better benefits are available they should be maintained and continued to be made available to the employees. The grant of exemption under the scheme is only a technical measure but the voluntarily scheme has got to be enforced under the control of the respective Provident Fund Commissioners. Not only the accounts must be maintained, but contributions must be according to credit under the appropriate account. Therefore, in the given facts and circumstances of the case, the ratio as laid down by the Hon'ble Supreme Court in Marathwada's case (supra) is clearly not applicable to the facts of the instant case.
34. Lastly, it is settled that the scheme of contributory provident fund is a beneficial piece of legislation and confers retiral benefit and is in the nature of a substitute for old age pension for the employees because it was felt that in the prevailing conditions in India, the institution of a pension scheme could not be visualized in the near future and thus the same has to be interpreted in a manner so as to confer maximum advantage on the employees.
::: Downloaded on - 15/04/2017 21:41:32 :::HCHP 1435. As a sequel to the aforesaid discussion, there is merit in this petition and the same is accordingly allowed and order passed by .
respondent No.4 on 23.05.2013 is quashed and set aside. The impugned action of respondents No.1 and 2 whereby the contribution to provident fund of the petitioners has been reduced to 12% of the pay of the petitioners by taking their salary @ `6500/- per month from June, of 2012 is declared illegal and ultra vires to the provisions of the H.P. University Act, 1970, Statutes, Ordinances and Regulations etc. framed rt thereunder. Respondents No. 1 and 2 are directed to contribute the provident fund of the petitioners @ 12% of the salary with effect from June, 2012 in accordance with the provisions of the Non-Government Affiliated College Teachers' Contributory Provident Fund Rules in the same manner as it was being done prior to June, 2012 with all consequential benefits. The needful be done within three months from today, failing which respondents No.1 and 2 shall be liable to pay interest @ 9% on such amount from the time it fell due i.e. June, 2012 till the date of its actual payment.
36. The petition is disposed of in the aforesaid terms, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
6th December, 2016. (Tarlok Singh Chauhan) (krt) Judge.
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