Calcutta High Court (Appellete Side)
Syamales Ghosh vs The Regional Provident Fund on 13 July, 2018
Author: Subrata Talukdar
Bench: Subrata Talukdar
1
13.07.18
08 Ct. No.26
Sws.M
W.P. 29366 (W) of 2015
(Assigned)
[Syamales Ghosh vs. The Regional Provident Fund
Commissioner & Ors.]
Mr. Partha Bhanja Choudhury
Mr. Ravi Kumar Dubey
...for the petitioner
Mr. Prabal Mukherjee
Ms. Anamika Pandey
Ms. Amrita Pandey
....for the respondent Nos. 2 to 6
Mr. S.C. Prasad ....for the PF Authority Party/Parties appear in the order of their name/names as printed above in the cause-title.
The petitioner, represented by Mr. Bhanja Choudhury, learned Counsel in Court today, alleges wrongful dismissal from service by The Statesman Limited / the newspaper/employer/respondent (for short STL) in the year 2003. The action of dismissal was adjudicated in an industrial reference on the point whether in the, absence of approval of the action of dismissal, the petitioner/employee is entitled to reinstatement along with full service benefits. 2 The above referred reference by the employer/ STL was answered in the negative by the learned First Industrial Tribunal, West Bengal in Case No. 01 of 2003.
By its detailed Order No. 184 dated 7th August, 2014, the learned Tribunal, inter alia, held that the application of the employer/STL under Section 33(2)(b) of the Industrial Disputes Act is not maintainable in view of non-compliance of the mandatory provision attached to the Proviso under Section 33(2)(b) (supra).
Having regard to the fact that in spite of the order of the learned Tribunal dated 7th August, 2015 (supra), the employer/STL did not release the Provident Fund (PF) dues of the petitioner, a writ application was filed by the petitioner before this Court being W.P. 14066(W) of 2015. The writ petition was disposed of by order dated 8th July, 2015 directing, inter alia, as follows:
"The writ petitioner was dismissed on 7th February, 2003.
Disputes between the petitioner and his employer, the Statesman Limited were pending 3 before the Industrial Tribunal. Recently the Industrial Tribunal has passed an order on 7th August, 2014, in favour of the petitioner workman. But in my opinion, that is no justification for withholding his provident fund entitlement till the date of dismissal.
This writ application is disposed of by directing the employer to pay the provident fund dues of the petitioner up to 7th February, 2003, without prejudice to the rights and contentions of the petitioner to make a claim for wages from the date of dismissal till the date of retirement. Such payment should be made by 31st July, 2015.
All the papers are before this Court. Affidavits were not invited. The allegations contained in the writ petition are deemed not to have been admitted.
The writ application is thus disposed of."
Mr. Bhanja Choudhury, Learned Counsel, submits that pursuant to the order dated 8th July, 2015 the writ petitioner, by an account payee cheque dated 31st August, 2015, has received an amount of 4 Rs.2,51,692.45/- from the employer/STL purportedly towards his balance PF dues. The ultimate grievance raised in this writ petition is to provide both the calculation sheet and interest on the PF amount till the date of its actual disbursal on 31st August. 2015 (supra).
Taking this Court to several provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for short the 1952 Act) and the Industrial Disputes Act, 1947 (for short the I.D. Act), Mr. Bhanja Choudhury submits that the employer/STL is bound by the provisions of Section 17 of the 1952 Act followed by the consequences of non-compliance of Section 17 (supra) as provided under Section 14, also of the 1952 Act. It is pointed out that the employer enjoyed an exemption under the 1952 Act which was thereafter cancelled by the Provident Fund Authority (PFA). The cancellation of the exemption was challenged by the Board of Trustees (BOT)/ STL responsible for handling the PF dues on behalf of the employer/ STL before the Hon'ble Court by way of a writ petition.
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The BOT is presently enjoying an interim order granting a stay on the cancellation of the exemption. Therefore, as on date, in law the BOT can be treated to be within the Exempted Category of Establishments for the purpose of the 1952 Act.
In the light of the above stated legal position, Mr. Bhanja Choudhury submits that the BOT is therefore bound by the provisions of Section 17 1A(d) as well as Section 17 1B of the 1952 Act. Both the above noted Sections enjoin upon the BOT to maintain detailed accounts and submit returns to the PFA and, in the event the BOT commits a default in complying with the provisions of Section 17 (supra), penal consequences as provided under Section 14 of the 1952 Act, take over.
Mr. Bhanja Choudhury draws the specific attention of this Court to Section 2(rr) of the ID Act and submits that the definition of wages does not include any remuneration in the nature of a PF contribution payable by the employer for the benefit of the employee. 6
In the above view of the matter the stand is taken by the petitioner/employee that by the order dated 8th July, 2015 the Court directed the employer to pay the PF dues of the petitioner/employee up to 7th February, 2003, i.e. the alleged date of his dismissal, without prejudice to the rights and contentions of the petitioner/employee to raise a claim for wages from the date of his dismissal (supra) till the date of his claimed retirement on the 31st of October, 2007.
Therefore, Mr. Bhanja Choudhury submits that the PF dues having been actually disbursed by Cheque dated 31st August, 2015 in terms of the order dated 8th July, 2015 are bound to fetch interest more than what has been disclosed by the employer/STL at page 26 of the writ petition standing to the credit of the petitioner on 31st March, 2001. Learned Counsel for the petitioner relies upon the Scheme of the 1952 Act to demonstrate that PF contributions accumulating with the BOT are in the nature of fixed deposits in banks which are required to be invested and carry interest till the date of their actual disbursement. Therefore, notwithstanding the calculation of the PF treating the end date to be 7th 7 February, 2003, the petitioner is entitled to interest on the amount accumulated up to 7th February, 2003 and upto the date of its actual disbursal on 31st August, 2015.
Mr. Mukherjee, learned Senior Counsel, appearing for the employer/STL submits that the order dated 8th July, 2015 leaves the issue of further payment of dues beyond 7th February, 2003 open.
The issue of whether the petitioner continued in service beyond 7th February, 2003 and could have so continued till 1st March, 2013 is already sub judice. In view of the sub judice nature of the claimed continuity of the petitioner's employment, the employer/STL, post 7th February, 2003, is under no obligation to pay any further PF dues along with interest. Admittedly, no contribution towards PF has been made by the petitioner/employee beyond 7th February, 2003 and, there is no contribution of the employer too. Therefore, the PF account of the petitioner must be deemed to have closed in terms of what has been disclosed at page 26 of the writ petition effective the close of 31st March, 2001. 8
Mr. Mukherjee takes the further stand that the details of contribution/interest accumulation connected to the PF account of the petitioner as on 31st March, 2001 are evident from page 26 itself which is a communication of the employer to the petitioner dated 17th June, 2002.
On behalf of the Regional Provident Fund Authority (RPFA), Mr. Prasad, learned Counsel, makes the point that the exemption status of the BOT is currently sub judice. Mr. Prasad points out that the calculation connected to the details of PF disbursement in respect of each of the employees of STL, including the present petitioner, ought to lie in terms of the statute, viz. the 1952 Act, with the BOT and, the role of the PFA has been now merely reduced to the formality of an external auditor.
Having heard the parties and considering the materials placed, this Court finds as follows:
(A) That admittedly the petitioner was in employment till 7th February, 2003 ; 9 (B) That admittedly therefore the petitioner would be a beneficiary of the PF contribution and accumulation of PF dues up to 7th February, 2003;
(C) That by the order dated 8th July, 2015 the employer was directed to pay the PF dues up to 7th February, 2003;
(D) That the PF dues, in terms of the order dated 8th July, 2015, would not include a claim for wages relevant to the current status of Court proceedings, i.e. from the date of the disputed dismissal till the claimed date of retirement; (E) That the disbursement of the PF dues as on 31st August, 2015, therefore shows that as on 7th February, 2003 the sum lying with the employer was of the amount as disclosed at Page 26 of the writ petition plus interest accumulated on such sum due to its statutory utilisation/investment till the date of its actual disbursal on 31st August, 2015;
(F) That this Court accepts the submission of Mr. Bhanja Choudhury that the PF dues admitted 10 to be held by the employer till 7th February, 2003 were governed by the provisions of Section 7Q of the 1952 Act and therefore the BOT is under the obligation to pay interest in terms of the statute on the PF dues between the date of dismissal of the writ petitioner till the date of actual disbursement. In discharge of its interest payment the BOT is also under the obligation to intimate the petitioner of the account maintained by it, as again statutorily provided, till the PF left the coffers of the BOT.
In the backdrop of the above discussion, the Respondent No. 2 to 6 are directed to disburse the interest statutorily to be taken into cognisance on the sum lying in the coffers of the BOT as on 31st March, 2001 (vide Page 26 of the Writ Petition) till the date of its actual disbursal on 31st August, 2015 along with the supporting account.
The steps, as directed above, shall be taken not later than four(4) weeks from the date of formal 11 communication of this order by the Petitioner to the Respondent No. 2 to 6.
W.P. 29366(W) of 2015 stands accordingly disposed of.
Urgent certified photocopy of this order, if applied for, will be made available to the parties subject to compliance with all requisite formalities.
(Subrata Talukdar, J.)