TaxTMI 
TaxTMI 
2018 (9) TMI 2045
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....e Petitioner and other similarly situated employees, employed on contract basis by the Respondent No.1 are entitled to the benefit of Provident Fund as per the Act and the statutory scheme and that the Respondent No.1 be directed to forthwith enroll all such eligible contract employees under the statutory scheme and deposit their contribution with the Respondent No.3 from the date they are eligible till remittance and thereafter till they are in the employment of the Respondent No.1. The Petitioner in the alternative has sought the relief that the Respondent No.1 be forthwith directed to suitably amend the Provident Fund Trust Regulations to permit the enrollment of contract workers as members of the Provident Fund Scheme instituted by the Respondent No.1 and to make all eligible contract employees members of the Provident Fund Scheme from their respective dates of entitlement and continue to contribute amounts to the Provident Fund Trust in respect of contract employees as per the regulation. 3 The factual matrix involved in the above Petition can in brief be stated thus: The Respondent No.1 is registered under the Companies Act. The shareholding of the Government of I....
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....rovident Fund Trust Regulations on 1­4­1986 and therefore the employees of the Respondent No.1 were enjoying the benefits of Provident Fund under the said trust scheme. The said scheme was made applicable to the permanent employees of the Respondent No.1 from whom deductions are made from their salary as a result of which the said employees are enjoying the benefits of the Provident Fund Scheme of the Respondent No.1. The benefits of the said scheme however has not been extended to the employees who have been engaged on contract basis. In terms of the aforesaid Notification which has been brought into force on 1­4­2001, the employees of the Respondent No.1 came within the purview of the PF Act, however, since the Provident Fund Trust Regulations of the Respondent No.1 were applicable and the Act does not provide for the application of the dual Provident Fund Schemes, the said Act was not made applicable to the employees of the Respondent No.1 as a result of which the contract employees though covered by the provisions of the PF Act stood to loose on both the counts namely that the scheme under the Trust Regulations was not extended to them and nor the provisions of ....
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....No.1 to operate an air transfer services to within and from India. The permit does not specify the Central Government or its nominee as an operator. The day to day affairs of the Respondent No.1 are managed as is the case with any other entity registered under the Companies Act. (vi) That the reliance placed on Section 16 of the PF Act is misplaced so as to deny benefits under the PF Act to contract workmen, for the reason that the Respondent No.1 is not an establishment belonging to or under the control of the Central Government. Secondly the Act would not be applicable in respect of employees who are entitled to the benefit of the Provident Fund or old age pension Scheme. In the instant case it is not in dispute that the benefits of a Provident Fund or Pension Scheme are not available to the employees concerned in the above Petition. Reliance is sought to be placed on the judgment of the Apex Court reported in the matter of Hindustan Steel Works Construction Ltd. Vs. State of Kerala and Ors. 1997(5) SCC 171 (vii) That the provisions of the said Act are required to be made applicable to the members of the Petitioner union and other similarly situated, as the same....
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.... be called the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. 2. *********** 3. ************ (a)************ (b)­ To any other establishment employing twenty or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette, specify in this behalf. 2(f) "employee' means any person who is employed for wages in any kind of work manual or otherwise, in or in connection with the work of an employer and includes any person:­ (i) Employed by or through a contractor in or in connection with the work of the establishment. (ii) engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961 (52 of 1961) or under the standing orders of the establishment. 16. Act not to apply to certain establishments. (1) This Act shall not apply- (a) to any establishment registered under the Cooperative Societies Act, 1912 (2 of 1912), or under any other law for the time being in force in any State relating to co­operative societies, employing less than fifty persons and working without the aid of power; or ....
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....b) therefore discloses that the PF Act is applicable to an establishment employing 20 or more persons or class of such establishment which the Central Government may by Notification in the official gazette specify in that behalf. In so far as Section 2(f) is concerned, it spells out the definition of an employee it takes within its sweep an employee who gets wages directly or indirectly from the employer and includes any person employed by or through the contractor or in connection with the work of the establishment. Now coming to Section 16 of the PF Act the said provision spells out the establishment to which the Act does not apply. Clause (b) of Section 16 mentions the establishment belonging to or under the control of the Central or State Government and whose employees are entitled to the benefit of a contributory Provident Fund Scheme or old age pension in accordance with any scheme. In so far as Section 17 is concerned, it confers power on the appropriate Act to exempt an establishment from the provisions of the scheme and one of the eventualities in which the exemption can be granted is when the employees of an establishment are in enjoyment of a scheme which is not....
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....aged in commercial activities as per its policies, framed by the Board of Directors and not as an agent of the Central Government. The Respondent No.1 is not a department of the Central Government like the Railways, Posts and Telegraph etc. The Respondent No.1 is also classified as non scheduled operator. The said classification permits the Respondent No.1 to operate an air transport service within and from India. The permit does not specify the Central Government or its nominee as the operator, hence the aforesaid facts disclose that the Central Government does not come in the picture in respect of the day to day functioning of the Respondent No.1 and the Respondent No.1 is like any other company which has been registered under the Companies Act. It is therefore questionable whether the Respondent No.1 would classify as an airline owned or controlled by the Central Government. In the matter of application of the PF Act which is undoubtedly a social welfare legislation, a liberal interpretation is required to be adopted so as not to deprive the benefit of the said social welfare legislation to the employees like the members of the Petitioner Union. 10 It is required to be noted ....
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....shy;2016 and having regard to the grand success of the scheme, the same was extended up to 30­6­2017. 12 Hence the aforesaid letters unequivocally are a pointer to the thinking of the Central Government and the Provident Fund Commissioner that the benefits of the PF Act are to be made available to the contract / casual employees of the Respondent No.1. Hence the affidavit filed in the above Petition on behalf of the Regional Provident Fund Commissioner has been filed oblivious of the aforesaid correspondence. This is in so far as the applicability of the PF Act is concerned. 13 In so far as the scheme which is applicable to the regular employees of the Respondent No.1 is concerned, the same is comprised in what is known as Pawan Hans Employees Provident Fund Trust Regulations. The definition of an employee under the said Trust Regulation is in clause (2.5), the same is reproduced hereinunder for the sake of ready reference: 2.5­ "Employee" means any person who is employed for wages / salary in any kind of work, monthly or otherwise, in or in connection with the work of the Corporation and who gets his wages / salary directly or indirectly from the Corpora....