Gujarat High Court
Builders Association Of India vs Union Of India (Uoi) on 29 April, 2003
Author: A.L. Dave
Bench: A.L. Dave
JUDGMENT B.J. Shethna, J.
1. All these appeals are disposed of by this common order as they are arising out of the common judgment & order dated 8.2.1999 passed by the learned Single Judge of this Court (Coram : R. Balia, J) dismissing all the writ petitions filed by the appellants-petitioners.
2. Learned Counsel Shri Ramnandan Singh, appearing for the appellants-petitioners, firstly submitted that the Learned Single Judge has not considered the question as to whether there is relationship of employer and employees i.e. workers, who are engaged in a multi-tier system between the parties or not? He submitted that some of the appellants-petitioners are in construction of roads, buildings etc., and the workers who are employed by the builder for construction activity cannot be covered under the definition of Section 2(f) of the Act. This contention was never argued before the Learned Single Judge. Therefore, we have not permitted Mr. Ramnandan Singh to argue for the first time before this Court in Letters Patent Appeal.
3. Learned Counsel Shri Ramnandan Singh, however, tried to submit that he had argued this contention but unfortunately, the Learned Single Judge had not dealt with in his order. It appears from the common order passed by the Learned Single Judge of this Court in these matters that the same was pronounced in Open Court in presence of Mr. Ramnandan Singh. However, Mr. Ramnandan Singh submitted that he thought it not proper to make a mention to the Learned Single Judge to include this argument in his Lordship's order. We have specifically asked Mr. Ramnandan Singh to point out to us as to whether such a ground is raised by him in any of these appeals or not but no such contention was raised in the appeals to the effect that though he had raised the aforesaid contention before the Learned Single Judge, the same was not dealt with by the Learned Single Judge. It is unfortunate that at the time of hearing of the appeals, after a period of 4 years, this type of argument is sought to be advanced by Learned Counsel Shri Ramnandan Singh.
4. In case of State of Maharashtra Vs. Ramdas Srinivas Naik & Others reported in AIR 1992 SC 1249, the Honourable Supreme Court has made it clear that in such type of cases, the party should first approach the same Judge by way of review petition by making specific averment in their application that though specific contention was raised by the Counsel before the Court, the same was not considered and dealt with by the Learned Judge in his order. In absence of it, the Higher Court should not entertain such contention. In view of the above settled position of law, we have not permitted Mr. Ramnandan Singh to raise this contention before us for the first time in these matters.
5. Mr. Ramnandan Singh, then contended that once the Competent Authority had taken the decision under Section 19-A of the Employees Provident Fund & Miscellaneous Provisions Act, 1952 in favour of the appellants-petitioners then casual workers of the nature discussed in his order were not covered in the definition of employee under the Scheme, that such a decision was binding and it could not have been interfered by the Superior Authority in its suo motto powers. In support of his submission, Mr. Singh has taken us through the order dated 8.2.1984 passed by the Competent Authority i.e. Legal Advisor under Section 19-A of the Employees Provident Fund & Miscellaneous Provisions Act, 1952 (Annexure A). It is true that the Competent Authority took such decision on 8.2.1994 at Annexure A but the same was taken up in review in suo motto powers by the Central Government and the said decision was quashed and set aside by the Joint Secretary to the Government of India by his order dated 23.12.1994 (Annexure - 'B' to the petition). Once the order passed by the Competent Authority is set aside by the Central Government, then we fail to understand that how any reliance can be placed on such order. Apart from the fact that this contention was also not pressed into service before the Learned Single Judge, on merits also, we find no substance in it. All the appellants-petitioners filed petitions in 1997 but subsequent order passed by the Central Government at Annexure - 'B' dated 23.12.1994 was never challenged. However, an attempt was made by the Learned Counsel Shri Singh for the appellants that prayer was made by the appellants-petitioners in the petition to issue a writ of mandamus against the respondents requiring them not to enforce the provisions of amended Section 26(2) of the Provident Fund & Miscellaneous Provisions Act. That includes the respondent no.6 who had passed the order at Annexure B. We are really surprised with this type of submission. Prayer made in Para A of the petitions is totally different than what was contended by Mr. Singh before us
6. Mr. Singh, lastly contended that amendment to Para 26(2) of the Scheme was unconstitutional, in as much as, it extends the benefit of Provident Fund Scheme to the casual workers who are working for a particular period in an Establishment as daily wager. This contention was pressed into service before the Learned Single Judge. However, the same was rejected by the Learned Single Judge of this Court in view of the various judgements reported in (i) 1996 (1) LLJ Page 823 and (ii) 1996 (2) CLR Page 822. The first judgement was of the Honourable Supreme Court which was arising out of the judgement of the Madhya Pradesh High Court. Before the Honourable High Court, the validity of Para 26(2) of the Scheme was challenged on the following four grounds:-
1. The amendment to paragraph 26(2) of the Scheme is invalid for non-compliance of S. 7(2) of the Act.
2. The compulsory contribution amounts to denial of minimum wages.
3. The amendment is impracticable and unworkable.
4. The amendment is ultra vires the Act and Article 14 and 19(1)(g) of the Constitution.
The High Court rejected all the contentions and held that Para 26-2 of the Scheme cannot be held to be ultravires. For that, cogent reasons were given by the High Court. When the matter was carried before the Honourable Supreme Court, the Honourable Supreme Court rejected the petitions by holding that by a detailed and well reasoned judgement, the High Court had rejected all the contentions and their Lordships do not see any reason to interfere with the judgement of the High Court. Therefore, in view of the direct judgements of the Honourable Supreme Court, the Learned Single Judge of this Court had also rejected the contention regarding the validity of Para 26.2 of the Scheme.
7. When the Honourable Supreme Court has upheld the judgement of the High Court challenging the validity of Para 26.2 of the Scheme then this Court cannot take different view of the matter. Therefore, in our considered opinion, the Learned Single Judge has also rightly dismissed the petitions by rejecting this contention.
8. Except the aforesaid contentions, no other contention is put forward. Before parting, we must state that Learned Counsel Shri Ramnandan Singh himself has stated at the Bar that in pursuance of the order passed by the Learned Single Judge of this Court on 8.2.1999, the Authorities have approached some of the appellants-petitioners for verification. Be that as it may, the Learned Single Judge while dismissing the writ petitions made it clear that such an issue can always be raised before the appropriate Authority at an appropriate stage, as and when occasion arises. Similarly, the Authorities can approach all the appellants-petitioners or in turn, the appellants-petitioners can approach the Authorities. In view of the above discussion, all these appeals fail and are dismissed.