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Petroleum Workers' Union Through: Its ... vs Union Of India And Ors on 16 February, 2022

Author: Prathiba M. Singh

Bench: Prathiba M. Singh

                                                           Signature Not Verified
                                                           Digitally Signed
                                                           By:DEVANSHU JOSHI
                                                           Signing Date:19.02.2022
                                                           02:25:09


$~8
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 3728/2019 & CM APPLs. 4869/2022 & 8545/2022
       PETROLEUM WORKERS' UNION THROUGH: ITS SECRETARY
                                                         ..... Petitioner
                      Through: Mr. B.K. Singh, Mr. Hardik
                               Ahluwalia & Ms. Urvi Kashiwal,
                               Advocates.
                      versus
       UNION OF INDIA AND ORS.                     ..... Respondents
                      Through: Mr. Asheesh Jain, CGSC with Mr.
                               Adarsh Kumar Gupta, Advocate for
                               R-1 (M: 9811125100)
                               Mr.Rajiv Shukla, Ms.Shivani Kapoor
                               and Mr. Sanjay Kumar, Advocates for
                               R-3 to 5 with Mr.Shubham Jain, Sr.
                               Manager for IOC
                               Mr. Judy Janes, Advocate for
                               Respondent/EPFO
                               Utkarshjeet Singh, Nodal Officer
       CORAM:
       JUSTICE PRATHIBA M. SINGH
                ORDER

% 16.02.2022

1. This hearing has been done through video conferencing. CM APPL. 8545/2022 (for taking on record authorisation letter)

2. This is an application filed by Respondent No.3/Indian Oil Corporation (hereinafter "IOC") seeking to place on record the authorisation letter/power of attorney in favour of Mr. Shubham Jain. It is stated that he has substituted the erstwhile authorised representative of IOC, Mr. Sanjay Kumar.

3. For the reasons stated in the said application, the power of attorney is W.P.(C) 3728/2019 Page 1 of 9 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:19.02.2022 02:25:09 taken on record. Accordingly, this application is disposed of. W.P.(C) 3728/2019 & CM. APPL. 4869/2022

4. Vide previous order dated 28th January, 2022, this Court had directed the IOC to place on record an affidavit taking a specific stand as to whether the obligation to deposit the provident fund in respect of the Petitioners was of the Contractors or the IOC, as also to apprise the Court of the mechanism in IOC to ensure that Contractors deposit the provident fund dues in respect of the Petitioners regularly.

5. The said affidavit dated 11th February, 2022 has been filed by IOC.

6. Some submissions have also been heard in this matter today. It appears very clearly that there were some periods of time, during which the Petitioners, who are stated to be contractual employees, were not paid their provident fund dues. The case of the Petitioners is that the obligation of ensuring payment of provident fund is of the principal employer, i.e., IOC. The alleged Contractors who were supposedly working with the IOC and providing them the manpower are four in number, namely:

(i) M/S Mart Engineers from 10.10.1997 to 10.10.1999;

(ii) M/S Pawan Contractor from 10.10.1997 to 01.01.2002;

(iii) M/S Jain Brothers from 01.01.2002 to 31.12.2004; and

(iv) M/S Chirag & Company from 01.01.2002 to 30.04.2005.

7. The further case of the Petitioners is that due to a Circular issued by the Government in October, 1997, restraining IOC from employing contractual employees in bottling plants, IOC stopped recognizing the contractual employees, i.e., the Petitioners, as their contractual employees in their records. The Petitioners submit that it is during that period that their PF dues have not been paid, despite the Petitioners continuing to render their W.P.(C) 3728/2019 Page 2 of 9 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:19.02.2022 02:25:09 services to the IOC.

8. Mr. B.K. Singh, ld. Counsel appearing for the Petitioners, submits that there are a total of 87 employees who are concerned in this writ petition whose provident fund has not been paid for some periods between 1999- 2005. However, at pages 49-50 of the writ petition, a list of only 79 employees is stated to have been provided. Even then, it is noticed from a perusal of the said list that there are details of only 78 employees, as the name of the employee at serial number 65 is missing in the list.

9. On the other hand, the case of the IOC is that the obligation of depositing PF dues was of the respective Contractors and not of IOC. The usual process followed by the IOC is to make sure that the Contractors pay the entire statutory dues to the contractual employees. In lieu thereof, the IOC states in its affidavit that it retains security amounts deposited by the Contractors, which are only released, if there is no complaint received against the Contractor. The following mechanism has been set out in the affidavit dated 11th February, 2022:

"ii. That it is stated that under the contents, the obligation to deposit the provident fund in respect of the contract workmen is of the Contractor, copy of the relevant contracts are already filed on record. The contractor agencies are covered under the EPF&MP Act, 1952 and are allotted PF Code.

iii. That it is stated that the existing mechanism in the Corporation to ensure that the Contractors/ agency deposit the PF in respect of the workmen is that the Contractor has to submit the Previous Month PF deposit slip which is generated ONLINE after depositing the PF contribution in respect of W.P.(C) 3728/2019 Page 3 of 9 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:19.02.2022 02:25:09 the Contract Labour working under his firm alongwith the current monthly invoice in respect of Contract Workmen. After verifying the previous Month PF online generated Electronic Challan Return (ECR) and other documents by the concerned officer at the location, the bill of the contractor is processed for payment.

iv. That as and when any complaint is received from any union or any person regarding non compliance or deficient remittance, then it is diligently followed with the Contractor. Security amounts held by the Corporation are only released if there is no complaint received against the contractor."

10. Mr. Shubham Jain, Senior Manager (ER), NR Indian Oil Corporation Ltd., appearing on behalf of IOC, has also joined the proceedings today. On a specific query from the Court as to whether the Petitioners have been continuously working with the IOC or not, he submits that some of these Petitioners have already been regularized and the Petitioners have also rendered services to the IOC during the relevant period, through Contractors.

11. Mr. Shukla, ld. Counsel for IOC, submits that in respect of the list of Petitioners provided, only 63 of them have been regularized by the concerned Tribunal and the matter is still pending before the Delhi High Court. Some of the Petitioners are also stated to have retired.

12. Mr. Utkarshjeet Singh, RPFC-II (Central), Delhi, has also joined the proceedings along with Mr. Judy James, ld. Counsel for the EPFO. It is submitted by the EPFO that in respect of two out of four contractors, the accounts have already been settled and in respect of other two contractors, W.P.(C) 3728/2019 Page 4 of 9 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:19.02.2022 02:25:09 i.e. M/s Mart Engineers and M/s Jain Brothers, there is no data before the EPFO. He relies upon the letter Ref. No.:E/DL/43268/Comp-I/5967 dated 30th September, 2015, issued by the RPFC (Compliance-I) to the Petitioners, for this submission, which shows the accounts of the other two Contractors as settled.

13. From the submissions made today as also from the record, it is clear that this is the second round of litigation by the Petitioners in respect of their provident fund dues. Earlier, W.P.(C) 7963/2018 titled Petroleum Workers Union through the Secretary v. Union of India & Ors., as filed by some of the Petitioners, wherein a ld. Single Judge of this Court passed vide order dated 16th November, 2018, to the following effect:

"For the relief sought in this petition, a Representation (Annexure P-6) was made by petitioner on 7th July, 2018 to respondents. According to petitioner's counsel, there is no response to the said Representation.] In the facts and circumstances of this case, it is deemed appropriate to dispose of this petition within direction to respondent- General Manager, Indian Oil Corporation Limited to give a speaking response on petitioner's Representation (Annexure P-6) within eight weeks and its fate be communicated to petitioner within two weeks thereafter, so that petitioner may avail of the remedies, as available in law, if need be. With aforesaid directions, this petition and application are accordingly disposed of. Dasti."

14. Post this, a representation was made by the workers therein to IOC, and the same was replied to by the IOC vide letter dated 16th January, 2019. The stand of the IOC which is contained in the said reply is primarily a W.P.(C) 3728/2019 Page 5 of 9 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:19.02.2022 02:25:09 reproduction of the representation itself. However, the IOC's ground for rejection of the representation is that the claims of the workers are belated as the same is more than three years old and the records concerning the same are not preserved, and IOC cannot be forced to provide the same under the provisions of the Contract Labour (Regulation & Abolition) Act, 1970. Some relevant extracts of the said representation are as under:

"It is clear from the above mentioned that you have submitted before the Hon'ble High Court facts which are factually incorrect even to your own submission before the CGIT Delhi. This is however not the first instance where you have tried to mislead the Hon'ble Court/Authority by presenting wrong facts; infact you are in habit of continuously making wild, vague and incorrect accusations against the respondent Corporation. Some of such instances are as under:

XXX From the above mentioned it is clear that Sh Surender Singh is in the habit of changing his stand frequently before various authorities and as per his own convenience. The same is clearly being done with intention to harass the Indian Oil Corporation Limited. In fact during the proceedings taken place before the PF Authorities Corporation had specifically submitted the following:

XXX However to best of our knowledge, the required action was not taken either by the Contract labourers or by the PF authorities and hence Corporation in no way blame if the said issue was not resolved as alleged by the petitioner workmen. Even the said records are barred by the provisions contained in CLRA Act 1970 and Principal Employer can not be forced to produce the records W.P.(C) 3728/2019 Page 6 of 9 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:19.02.2022 02:25:09 which are barred by the CLRA Act 1970 which is the governing Act for regulating the Contract Labour.

XXX

10. The provisions of Rule 30 of EPF & MP Act 1952 are not denied. However all the contractors of the respondent Corporation were having independent PF Codes with them and they duly complied with all the provisions of the EPF & MP Act 1952."

15. This stand of the IOC would not be acceptable inasmuch as the Petitioners have been running from pillar to post for the last several years to receive their PF dues. They are stated to have been facing problems with the IOC in respect of their employment and regularization also, and the issue regarding payment of provident fund dues is one aspect of the same. Since IOC admits that the Petitioners have rendered their services during the relevant period for which PF dues are claimed, and considering the facts and submissions recorded above, the following directions are issued:

i) The identity of the Petitioners shall be ascertained and verified by the RPFC-II.

ii) In respect of the Petitioners who have rendered services to the IOC, irrespective of whether they have been directly employed by IOC or through Contractor, the provident fund dues would be liable to be paid by the IOC to such Petitioners, in terms of Paragraph 30 of the Employees Provident Funds Scheme, 1952.

iii) In respect of those Petitioners who have superannuated or passed away, the provident fund dues for the period during which they have rendered services for the IOC, would be liable to be paid by IOC to such Petitioners.

iv) In respect of the computation of the said provident fund dues, Mr. Utkarshjeet Singh, RPFC-II, Delhi, shall summon the Contractors if any contact details are available for them, and hold meetings with the IOC representatives, Contractors' representatives if any, and the Petitioners. After holding such meetings, the RPFC shall compute the provident fund amounts due qua each of the Petitioners and place a report before this Court as to what would the provident fund dues liable to be paid to each of the Petitioners.

v) The first meeting before the RPFC shall be held on 2nd March, 2022, at 11:00 A.M. If required, further meetings shall also be held in the office of Mr. Utkarshjeet Singh, RPFC-II, in this regard.

vi) The details of the Contractors shall be supplied by the IOC to Mr. Singh, RPFC-II, in order to enable the RPFC-II to summon them.

vii) IOC shall render all cooperation to the RPFC-II in preparation of the report.

viii) If any records from the EPFO, Bandra Office, Mumbai or any other regional offices of the EPFO are required, Mr. Utkarshjeet Singh, RPFC-II, can summon the records from the said regional office or in the alternative, Mr. Utkarshjeet Singh, RPFC-II may visit such regional office in order to collect the requisite records. It is made clear that the proceedings shall not be delegated by Mr. Utkarshjeet Singh to any other officer. However, he can seek the assistance of any officer/s as required.

16. Let the report of the RPFC-II be submitted to the Court, on or before 30th April, 2022. Upon receipt of the said report, this Court would pass further orders in respect of the payments to be made to the Petitioners.

17. List on 25th May, 2022, for consideration of the RPFC's report.

18. This shall be treated as a part-heard matter.

PRATHIBA M. SINGH, J FEBRUARY 16, 2022 Rahul/MS W.P.(C) 3728/2019 Page 9 of 9