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Telco Transport Companies Association Through Tis Executive officer Namely Mahesh Sharan Vs. The Regional Provident Fund Commissioner and Ors - Court Judgment

LegalCrystal Citation
CourtJharkhand High Court
Decided On
AppellantTelco Transport Companies Association Through Tis Executive officer Namely Mahesh Sharan
RespondentThe Regional Provident Fund Commissioner and Ors
Excerpt:
1 in the high court of jharkhand at ranchi w.p. (l) no. 506 of 2016 ------- tata motors limited, previously known as tata engineering and locomotive company limited) a company registered under companies act, having its registered office at 24 homi mody street, fort mumbai and its works at jamshedpur,p.o. and p.s. telco, district singhbhum east, through its authorized signatory dgm legal services rajesh kumar das, son of late p.n. das, resident of c/15, vivekanand road, po- baridih, ps sidhgora, town jamshedpur, district- east singhbhum, jharkhand ... petitioner versus 1.the regional provident fund commissioner, jamshedpur, sub regional office, jamshedpur, p.o. mango p.s. mango district singhbhum east 2.telco transport companies association, jamshedpur,p.o. & p.s. telco district singhbhum.....
Judgment:

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (L) No. 506 of 2016 ------- Tata Motors limited, previously known as Tata engineering and Locomotive company Limited) a Company registered under Companies Act, having its Registered Office at 24 Homi Mody Street, fort Mumbai and its works at Jamshedpur,P.O. and P.S. Telco, District Singhbhum East, through its authorized signatory DGM Legal Services Rajesh Kumar Das, Son of late P.N. Das, Resident of C/15, Vivekanand Road, PO- Baridih, PS Sidhgora, Town Jamshedpur, District- East Singhbhum, Jharkhand ... Petitioner Versus 1.The Regional Provident fund commissioner, Jamshedpur, Sub Regional Office, Jamshedpur, P.O. Mango P.S. Mango District Singhbhum East 2.Telco Transport companies Association, Jamshedpur,P.O. & P.S. Telco District Singhbhum East throgh its Chief Executive Officer 3.M/s B.M. Transport through its Manager, Mr. Jagdish Singh son of late Charan Singh, resident of Shop no. E Sector Market, Telco Colony, P.S. Telco, Dist. East Singhbhum 4.M/s A.P. Transport Company through its Manager Mr. Chatubhuj Shukla son of Uma Shankar Shukla, resident of 102 Radhika Nagar near Radha Krishna Mandir, Telco Colony, P.S. Telco District East Singhbhum 5.M/s Bhaskar Transport Pvt. Ltd. through its Manager, Mr. P.S. Shukla son of late L.D. Shukla resident of New Rani Kudar, House no. 75, P.O. Kadma, P.S. & District East Singhbhum 6.M/s Canara Motors through its Manager, Md. Nehaluddin Khan son of late Murtuza Khan, resident of Eastbhum Shop K. Sector Market Telco colony P.S. Telco Dist. East Singhbhum 7.M/s Cargo Motors Pvt.Ltd. through its Manager,

2. Petitioner in W.P. (S) No. 506 of 2016-Tata Motors Limited earlier known as M/s Tata Engineering and Locomotive Company Ltd (Telco) (hereinafter referred to as the 'petitioner-company') is a leading vehicle manufacturer company whereas Petitioner in W.P. (L) No. 641 of 2016-Telco Transport Companies Association (hereinafter referred to as 'petitioner-association') is an association of independent transporters. Petitioners in both the writ applications have knocked the door of this Court for quashing order dated 4 09.10.2015 passed by respondent-Regional Provident Fund Commissioner, Jamshedpur (hereinafter referred to as “RPFC”) whereby it has been inter alia decided that: (a).There is relationship of “employer and employee” between M/s TTCA and Convoy Drivers; (b).M/s TTCA is the employer of these Convoy Drivers; (c).M/s Tata Motors Ltd. is the Principal employer for whom M/s TTCA has been a contractor; (d).M/s Tata Motors Ltd and M/s TTCA are required to submit documents, referred in the order, to determine the Provident Fund and allied dues in respect of Convoy Drivers for the period from 04/1971 till date within fifteen days and latest by 30.01.2016; (e).M/s Tata Motors Ltd. being the Principal Employer will ensure production of documents relating to all payments incurred towards transportation of its chassis from its Jamshedpur Plant to its Regional Sales Office for the period from 04/1971 onward.

3. Further prayer has been made in W.P. (L) No.506 of 2016 for declaration that the proceeding u/s 7A or under any other provisions of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 is not maintainable against the petitioner-company in the absence of or without there being any notification by the Central Government under Section 1(3)(b) of the EFP & MP Act and also for declaration that the “the work of transportation of chassis/newly manufactured vehicles from outside factory to different sales offices by contractors of the petitioner-company through professional drivers on sub-contract is not a work of manufacturing in a 'Factory' or not a work of an “Establishment” notified” u/s 1(3)(b) of the EPF & MP Act.

4. Prayer has also been made in W.P. (C) No. 641 of 2016 for declaration that M/s TTCA has no right or authority to select or appoint or engage a convoy driver of its choice for transportation of chassis. 5 5. The factual matrix, as delineated in the writ application in a nutshell is that the Petitioner in W.P. (S) No. 506 of 2016-Tata Motors Limited, which is one of the leading vehicle manufacturing motor vehicle, started manufacturing motor vehicle chassises since 1954 at Jamshedpur and after expansion of its business and spurt in demand, it established regional sales offices in different parts of country and with a view to avoid hardship and inconvenience to its dealers, it introduced a system of delivery of vehicles on different destinations. For this purpose, the petitioner-company entered into an agreement with the independent transporters. However, for promoting, protecting and smooth functioning of their trade etc, these independent transporters formed an association in the year 1973, which is known as Telco Transport Companies Association (In short “TTCA”), the petitioner in W.P. (L) 641 of 2016, which acts as a representative of the transport contractors. These transport contractors used to engage drivers, popularly known as “convoy drivers”, on sub-contract basis to transport Tata Motors Chassises to different parts of country. However, by passage of time, these convoy drivers created some law and order problem, which necessitated intervention of the Government-authorities and accordingly, after intervention of Deputy commissioner, Singhbhum in its meeting dated 27.08.1973, a panel of convoy drivers was constituted and they were allowed to work on rotational basis.

6. In the year 1981, the Regional Provident Fund Commissioner issued a notice, for the first time, to petitioner-company under Section 7A of the Act calling upon it to make contributions under the Act in respect of convoy drivers, which the petitioner-company challenged by way of filing C.W.J.C No. 1571 of 1981(R), which was disposed of vide order dated 25.09.1987, by which, the impugned 6 notice issued by the Regional Provident Fund Commissioner was quashed. However, observation was made that the State Government or the appropriate Tribunal may consider employer-employee relationship between the Tata Motors and Convoy Drivers, whenever an occasion arose. Being aggrieved by this order, the Regional Provident Fund Commissioner preferred appeal, being L.P.A. No. 53 of 1988, which was disposed of vide order dated 23.01.1992 whereby the matter was remanded to the Provident Fund Authority for appropriate enquiry into the issue.

7. It has further been averred that meanwhile in parallel proceedings, the Telco Driver/Convoy Drivers Mazdoor Sangh sought to raise an industrial dispute under the Industrial Dispute Act claiming themselves to be workmen employed by Telco and are entitled to all the benefits as such. But, the government refused to make reference of the dispute raised by the Sangh, hence, they filed C.W.J.C No. 1562 of 1987(R), which was dismissed vide order dated 15.01.1988. Aggrieved thereof, the Sangh challenged the same before Hon'ble Apex Court, wherein direction was issued to the State Government to make a reference to the appropriate Industrial Tribunal under Section 10 (1) of the Industrial Dispute Act, 1947. In compliance thereof, the State Government made a reference of the following question vide notification dated 27.05.1989: “Whether relationship of employer and employee exists between M/s TELCO Ltd. Jamshedpur and the Convoy Drivers? If so, whether they are entitled to be made permanent employees of TELCO?”

8. Accordingly, reference was registered as Reference Case No. 12 of 1989 and the Industrial Tribunal disposed of the reference vide award dated 31.07.1991 holding there exists no relationship of 7 employer and employee between M/s TELCO Ltd. Jamshedpur and the Convoy Drivers, which was challenged by Sangh by way of filing C.W.J.C No. 3392 of 1997(R), which was dismissed upholding the finding recorded by the Industrial Tribunal. Being aggrieved, the Sangh preferred appeal, being L.P.A. No. 373 of 2001, which was also dismissed vide judgment dated 06.07.2001. Again it was challenged before Hon'ble Apex Court by filing Special Leave to Appeal (C) No. 19936 of 2001, which was also dismissed.

9. It has further been averred that instead of complying the directions given in L.P.A. No. 53 of 1988 vide order dated 23.01.1992, the Regional Provident Fund Commissioner issued a notice under Section 7 A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 on 25.10.1994 and passed an order dated 23.06.1997 holding that the convoy drivers are the employees of the company within the meaning of Section 2 (f) of the Act. Questioning the legality the order dated 23.06.1997 passed by the RPFC, the petitioner-company again knocked the door of this Court by filing C.W.J.C No. 2356 of 1997(R). However, during pendency of the writ application,the respondent-RPFC passed another order dated 24.06.1999 quantifying the amount to be contributed by the petitioner-company, which was also challenged by the petitioner- company by filing C.W.J.C No. 3275 of 1999(R). Both the writ petitions were heard together and were disposed of vide common order dated 20.05.2004 whereby the matter was again remitted to the Regional Provident Fund Commissioner to take a decision in the light of finding recorded by the Industrial Tribunal, and after giving opportunity of hearing to all the concerned parties. It has been averred that on the matter having been remanded, the RPFC issued fresh notices under Section 7A of the Act to M/s Tata Motors Ltd. and TTCA , however, 8 later on the proceeding was converted under Section 7-B of the Act. It has been averred that convoy drivers mazdoor sangh vide its petition dated 25.04.2006 claimed that TTCA is their employer and M/s Tata Motors is the principal employer. Thereafter, the RPFC vide order dated 18.05.2006 quantifying the amount of Provident fund directed the TTCA to deposit an amount of Rs. 15,31,82,310/- within a fortnight and held that the petitioner-company is the principal employer of convoy drivers. Being aggrieved, W.P. (L) No. 2773 of 2006 with analogous cases was preferred which was disposed of by common order dated 15.09.2011 setting aside order dated 18.05.2006 and the matter was again remanded to the RPFC for affording proper opportunity to the petitioner to adduce evidence to decide the real issue of relationship of parties concerned.

10. Meanwhile, proceedings were instituted under Section 24 of the Contract Labour (Regulation & Abolition) Act, 1970 against individual transporters, who were members of TTCA, which was disposed of vide judgment and order dated 03.05.2013 by this Hon'ble Court holding that convoy drivers engaged by different contractors, who happen to be members of TTCA are not the employee of TTCA.

11. However, after remand of the matter, the evidence was adduced by the respective parties and in the proceeding, the petitioner-company filed applications on 25.02.2014 and 12.03.2014 before RPFC requesting him to decide the applicability of the provisions of the Act on the appellant with respect to convoy drivers, which was dismissed vide order dated 12.03.2014 holding there was no bar in proceeding under Section 7A (2) of the Act to first decide the employer-employee relationship and if only the outcome is in affirmative about the existence of employer-employee relationship 9 then to proceed for determination of amount under the Act. The petitioner-company aggrieved thereof moved this Court by filing W.P. (C) No. 1643 of 2014, which was dismissed vide order dated 21.10.2014, against which, the petitioner preferred appeal, that too met with the same fate, however direction was issued to RPFC to decide the issue within two months. Consequent thereupon, the RPFC disposed of the case vide order dated 09.10.2015, which is impugned before this Court.

12. Learned senior counsel appearing for the petitioner-company at the very outset submitted that the business of the company centres around the manufacturing of the chassises and not the transportation of the vehicles/chassis. However, for transportation of the chassises to various destinations, the petitioner-company entered into an agreement with independent transporters, who later on for their convenience formed an association in the name and style of “Telco Transport Companies Association” in the year 1973 and these transport contractors entered into agreement with convoy drivers, wherein it is clearly stipulated that union would be solely responsible for the discipline of the drivers. It has further been submitted that from plain reading of 'Trip Booking Slips', it transpires that there is certification that the convoy drivers, who transports the chassis on a lump sum amount, are not the employee of Telco. Further, the convoy drivers are free to accept or refuse the offer for driving the chassises even if their rotation comes. Learned senior counsel for the petitioner submitted with vehemence that in the cross-examination of the witnesses it has come to surface that even some of the convoy drivers are gainfully employed in other business and even some of them are senior citizens ageing between 60 to 83. Actually, from the panel of 975 convoy drivers, which was made and maintained by 10 district administration, on false declaration the chassises are being transported by other drivers who are not empaneled. Since, there is no control over the panel or driver by the petitioner-company, hence, such things continues to run. Under such circumstances, it can safely be said that there is no “employer-employee relationship”, allegedly as principal employer between petitioner-company and convoy drivers and the finding recorded by the respondents-RPFC is contrary to evidence and documents on record, as the convoy drivers are actually free lancer drivers.

13. Learned senior counsel for the petitioner further emphatically submitted that the issue that there exists relationship of employer- employee between the petitioner-company and convoy drivers has now set at rest in view of the specific finding recorded by Industrial Tribunal vide its order dated 31.07.1991, which was confirmed up-to Hon'ble Apex Court whereby the Tribunal held that there exists no relationship between the petitioner-company and convoy drivers.

14. Learned senior counsel for the petitioner-company further submitted that definition of employee under the I.D. Act are almost the same and thus, the said findings would be binding inter partes. In order to substantiate his argument, learned senior counsel for the petitioner-company referred to the definition of employee as provided in sub-section (f) of Section 2 of the EPF & MP Act, 1952, which is quoted herein below: “(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 establishment), and who gets his wages directly or indirectly from the employer, (an includes any person- (i)Employed by or through a contractor in or in connection with the work of the establishment; 11 (ii)Engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961, or under the standing orders of the establishment);”

15. At the cost of repetition, learned senior counsel for the petitioner submitted that TELCO is the manufacturer of Chassis and the said work comes to an end once the chassis moves out of the factory premises and it is the sole responsibility of the customer to carry the Chassis to its destination as per their convenience. However, there is no denial of the fact that TELCO entered into an agreement with transporters purely in the nature of providing services by a principal to another and not for supply of man power in the name and style of convoy drivers.

16. To the preliminary objection raised by the respondents-Convoy Drivers regarding the maintainability of the writ petitions on the ground of availability of alternate remedy of appeal, learned senior counsel for the petitioner-company submitted that alternative remedy is not an absolute bar and it is not binding upon the writ Court. In support of his submission, learned senior counsel for the petitioner referred to the decision of Hon'ble Supreme Court rendered in the case of A.V. Venkateswaran, Controller of Custom, Bombay Vs. Ramchand Sobhraj Wadhwani & Another as reported in AIR1961SC1506and also in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors as reported in AIR1999SC22. In such view of the matter and in peculiar facts and circumstances of the case, it is a fit case where this Hon'ble Court may call for the records from the Provident Fund authorities to adjudicate the basic issue i.e. relationship of employer- employee.

17. On the question of maintainability, learned senior counsel appearing for the petitioner-association submitted that on bare 12 perusal of Section 7-I of the Act, it is manifest that filing of appeal before the Tribunal is not mandatory rather it is directory as in the said provision, it is mentioned as “may prefer an appeal”. Learned senior counsel further submitted that the impugned order dated 09.10.2015 is vulnerable mainly on the ground that the respondent- RPFC itself has violated its own order whereby it was ordered to file written argument before final disposal of the case pending before it after remand by this Court and thereby violated principles of natural justice by not waiting for filing of written submissions by the parties including the petitioners. On merit of the case, learned counsel for the petitioner-association submitted that while deciding the core issue, the RPFC failed to take into consideration that the award dated 31.07.1991 has attained the finality, as such, the issue of relationship of employer-employee is no longer res-integra. Furthermore, the RPFC has also not given adequate opportunity of hearing by not letting the petitioner and other parties to submit their written submissions and authority concerned has also not considered the evidence, documentary as well as oral, adduced by the petitioner. The finding recorded by the RPFC that TTCA has engaged the convoy drivers is without any basis and moreover, the convoy drivers themselves has taken a categorical stand that the arrangement between them and TTCA was a paper arrangement; hence, the RPFC was duty bound in law to take this submission in proper perspective. Learned senior counsel for the petitioner-association further submitted that since there is no Gazette notification by the Central Government under Section 1(3)(b) of the Act as such there is no applicability of E.P.F Act, 1952.

18. Learned counsel appearing for the respondent-RPFC submitted that the petitioner-company itself has admitted that for 13 transportation of chassis to various destinations, Tata Motors Ltd has entered into agreement with Transport Contractors and these contractors engaged convoy drivers on sub-contract basis. This admission of the petitioner is itself an admission of the fact that M/s Tata Motors Ltd is the principal employer of the convoy drivers. Referring to judgment dated 23.01.1992 passed in L.P.A. No. 53 of 1988, learned counsel for the respondent-RPFC submitted that in the said judgment, the Hon'ble Court has in unequivocal terms has opined that the Court has not expressed any opinion on the matter and it is the RPFC to independently apply its mind and consider the similarity and dissimilarity in the definition of workmen under the Industrial Disputes Act and of the Employees under the Provident Funds Act, keeping in view the parameters and scope of two definitions. Hence, it is the RPFC to decide the issue in the light of inclusive definition as contained in Section 2(f) (I) of the Act. But, the petitioner repeatedly tries to co-relate the award of the learned Tribunal dated 31.07.1991 with the proceeding under 7A of the Act. The objective of the Industrial Disputes Act, 1947 is totally different with the objective of Employees Provident Funds & Miscellaneous Provisions Act, 1952 and accordingly, definition of employee under these two Act are different from each other. Actual fact is that those convoy drivers are engaged for the work of Tata Motors Ltd, hence, they come within the definition of employee under sub-section (f) of Section 2 of the Act.

19. Learned counsel for the respondent-RPFC further submitted that on perusal of proceeding dated 11.02.2014 it becomes evidently clear that it is the petitioners who have chosen not to cooperate with the respondent-RPFC, as undertaken by their respective advocates before the Hon'ble High Court as reflected in order dated 21.10.2014 14 passed in W.P. (C) No. 1643 of 2014 and analogous cases. In the proceeding before RPFC, on 18.02.2015 the petitioners did not move with the required documents as well as written statement for which they were repeatedly requested during 7A proceeding. Learned counsel for the respondent-RPFC submitted that the provisions of the Act is applicable to the class of establishment which are engaged in transportation business as per notification No. GSR399dated 24.03.1959 of the Government of India. Learned counsel for the respondents further submitted that the main object of the present proceeding under Section 7A of the Act is not about claiming contribution from Tata Motors Ltd in respect of 975 Convoy Drivers but to provide the Convoy Drivers security for which they are rightfully entitled to.

20. Learned counsel for the respondent-RPFC further submitted that it is M/s Tata Motors Limited, who not only supervises but also controls the work of M/s TTCA and transport contractors. All the transport contractors are the exclusive contractors of M/s Telco and M/s TTCA acts as an agent between these exclusive contractors of Telco and Convoy Drivers. The convoy drivers thus became the workers/employees of M/s TTCA and contract employees of M/s Tata Motors Ltd, as per definition of 'employee' under Section 2(f) of the Act.

21. Learned counsel for the respondent-RPFC submitted that from perusal of balance-sheet of the year ended on 31.03.2004, it is revealed that M/s TTCA has incurred loss of Capital to the extent of Rs. 2,20,31,780.12, which was waived by M/s Tata Motors Ltd to the extent of Rs. 2,66,23,514.05; which amply says that even if the convoy drivers were engaged by M/s TTCA, payment of remuneration etc were paid directly by the transporting contractors which was 15 subsequently used to be reimbursed to the transport contractors along with other by M/s Tata Motors Ltd. expenses, Therefore, the respondent-RPFC has rightly come to the conclusion that manufactures of the Trade Mark holders became the principal employer for the contract labour engaged through its concentrator and they cannot escape the liability, monetary or procedure imposed by statute. Lastly, learned counsel for the respondent-RPFC submitted that the impugned order is only an interlocutory order as because final order for quantification of the dues is yet to be passed, hence, the matter again be remanded enabling the respondent-RPFC to finalize the dues against provident fund in respect of convoy drivers.

22. Learned counsel appearing for the intervener-Convoy Driver Majdoor Sangh submitted that for transportation of chassises manufactured by the petitioner-company, convoy drivers were recruited after proper driving test and on being found successful, convoy drivers were given Test Card by Service Manager/Engineer of M/s TELCO. Thereafter, in the year 1970, new change was introduced by M/s Telco to recruit convoy drivers after driving was found fit by the service manager and a temporary employment card were used to be issued by TELCO. In the year 1971, TELCO changed the employment card and about 975 test cards were issued to the convoy drivers to transport chassis to different destinations. However, after introduction of Contract Labour (Regulation and Abolition) Act, 1970, the company stopped issuing test card/employment card and insisted upon convoy drivers to return such cards. Thus, from the facts narrated above, it is amply clear that the convoy drivers worked directly under the control and supervision 16 of TELCO from 1954 to 1970 but are being denied social security benefits.

23. Having heard learned counsels for the parties and after giving my anxious consideration to the factual as well as legal aspects, and also the judicial pronouncements, it appears that legal battle between the parties started in the year 1981 when the Regional Provident Fund Commissioner issued notice to M/s Telco under Section 7A of the Act calling upon him to make contributions under the Act in respect of Convoy drivers. Challenge was made, impugning the notice, before this Court, which was quashed vide order dated 25.09.1987 in C.W.J.C No. 1571 of 1981(R). However, observation was made that the State Government or the appropriate Tribunal may consider “employer-employee relationship” between Tata Motors and Convoy Drivers, whenever the occasion arises. Meanwhile, in the parallel proceeding, the Convoy Drivers Mazdoor Sangh also raised an industrial dispute under the Industrial Dispute Act claiming that they are workmen employed by Telco and are entitled to all the benefits as such, in Reference Case No. 12 of 1989, which was disposed of vide order dated 31.07.1991 holding that there was no relationship of employer and employee exists between M/s Telco Ltd. Jamshedpur and the convoy drivers, which was confirmed up-to Hon'ble Apex Court. However, in another round of litigation, in compliance of order passed by this Court in 21.10.2014 passed in W.P. (C) No. 1643 of 2014, which was confirmed in L.P.A. No. 482 of 2014 vide order dated 11.05.2015, the respondent- Regional Provident Fund Commissioner passed order dated 09.10.2015, deciding the core question of relationship of employer and employee. Learned senior counsel appearing for the petitioner 17 tried his best to persuade this Court to quash the impugned order to which learned counsel for the respondents diligently opposed.

24. Be that as it may be, from the pleadings available on record, it would be apposite to first decide preliminary objection with regard to maintainability of the writ petitions, i.e. on the question of availability of alternative remedy of appeal. From perusal of record, it appears that though the question of alternative remedy by way of appeal was posed in C.W.J.C. No. 2356 of 1997 (R) and 3275 of 1999(R), which was disposed of vide order dated 20.05.2004, and the objection raised by respondents with respect to availability of alternative remedy of appeal was overruled on the ground that circumstances of the case and nature of the proceeding entails for this Court to entertain the writ application even there is efficacious alternative remedy of appeal. For better appreciation, it would be apposite to refer the relevant paragraphs of order dated 20.05.2004 passed in C.W.J.C. No. 2356 of 1997 (R) , which deals with availability of alternative remedy of appeal, which is quoted herein below: “8.Before proceeding to deal with these submissions, we may observe that the convoy drivers Union and certain drivers seeking to intervene in the writ petition as well as counsel for the Provident Fund Commissioner raised an objection that Telco has an efficacious alternative remedy by way of appeal under Section 7 (I) of the Act. Senior counsel for the Telco pointed out that an Appellate Tribunal itself was constituted only with effect from 01.07.1997 and the order of the Provident Fund Commissioner was made on 23.06.1997 and the order of the Provident Fund Commissioner was made on 23.06.1997 even prior to the Constitution of the Tribunal and in such a situation, the objection that an appeal ought to have been filed, cannot be sustained. On our part, we find one another aspect rising in this case. This writ petition was filed on 08.08.1997 about five weeks after the Provident Fund Appellate Tribunal was constituted. This Court entertained the writ petition and 18 posted it for final hearing and it has been pending in this Court for more than six years. Thus, this Court having entertained the writ petition, passed interim orders therein after hearing both sides and having directed it to be posted for final hearing. We feel that it will be totally inappropriate to uphold at this stage the objection that Telco has an efficacious alternative remedy by way of appeal and leave it to file an appeal before the Tribunal. After all, the existence of an alternative remedy is not an absolute bar. In the circumstances of the case and considering the nature of proceeding, we think that it will be appropriate for this Court to decide the question posed for decision. We, therefore, overrule the objection to the maintainability of the writ petition raised by counsel for the respondents. (own emphasis) 25. From plain reading of above-quoted paragraphs, it is amply clear that there was every reason to entertain the writ petition even after existence of remedy of appeal and the Court was not oblivious of the fact that there is a provision of appeal but, circumstances did not permit to relegate the matter to Appellate Tribunal. In this connection, it would be pertinent to note here that at the relevant time, the core issue of “employer-employee” relationship was not decided and only after judicial pronouncement dated 21.10.2014 passed in W.P. (C) No. 1643 of 2014, which was confirmed in L.P.A. No. 482 of 2014 vide order dated 11.05.2015, this Court categorically directed to decide the issue of “employer-employee” first and if the decision is in affirmative then only to determine quantum of provident fund. In compliance of the said order, the respondent-RPFC decided the the core issue vide order dated 09.10.2015, which is impugned in this case.

26. Though, learned senior counsels appearing for the petitioners has challenged the impugned order by enumerating the above- mentioned submissions but, at this stage, the moot question that 19 falls for consideration by this Court is whether the legality and propriety of the impugned order passed by Regional Provident Fund Commissioner ought to be decided by this Court by-passing the statutory remedy of appeal and facts and circumstances of the case entails this Court to usurp the power of appellate authority and this Court should act as a court of appeal and reach its own conclusions.

27. There is no quarrel over the law laid down by Hon'ble Apex Court in the case of A.V. Venkateswaran (Supra) and also in the case of Whirlpool Corporation (Supra) wherein the Hon'ble Apex Court has held that the existence of alternative remedy is not an absolute bar. There is no shadow of doubt that a writ Court can exercise judicial review under Article 226 of the Constitution of India even if there is alternative remedy but that position of law may not be universally applicable and there is no straight jacket formula to apply the aforesaid principles to every cases at every stage because the decisions by the Hon'ble Apex Court have been rendered in different facts and circumstances of the case.

28. Hence, before proceeding further, it would be apposite to refer the relevant Act, which deals with the provision of appeal against the order passed by the Regional Provident Fund Commissioner. The relevant Rule 7-D and 7-I of the Employees' Provident Funds and Miscellaneous Provision Act, 1952 is quoted herein below: “7-D.Employees' Provident Funds Appellate Tribunal . – (1) The Central Government, may, by notification in the Official Gazette, constitute one or more Appellate Tribunals to be known as the Employees' Provident Funds Appellate Tribunal to exercise the powers and discharge the functions conferred on such Tribunal shall have jurisdiction in respect of establishments situated in such area as may be specified in the notification constituting the Tribunal. 20 (2).A Tribunal shall consist of one person only to be appointed by the Central Government. (3).A person shall not be qualified for appointment as a Presiding Officer of a Tribunal (hereinafter referred to as the Presiding Officer), unless he is, or has been, or is qualified to be , – (i)a Judge of a High Court; or (ii)a District Judge. “7-I.Appeals to Tribunal . – (1) Any person aggrieved by a notification issued by the Central Government, or an order passed by the Central Government or any authority, under the proviso to sub-section (3), or sub-section (4), of section 1, or section 3, or sub-section (1) of section 7-A, or section 7-B [except an order rejecting an application for review referred to in sub-section (5) thereof], or section 7- C, or section 14-B, may prefer an appeal to a Tribunal against such notification or order.”

29. From the plain reading of aforesaid provisions, it is amply clear that appeal to Tribunal has been provided under the Act, which has been enacted by the Parliament, against the order passed by RPFC. Hence, when there is statutory provision of appeal, the matter ought not to be dealt with by this Court. View of this Court gets fortified by the decision of Hon'ble Apex Court rendered in the case of Sumedico Corporation & Anr. Vs. Regional Provident Fund Commissioner as reported in (1998) 8 SCC381, the relevant paragraphs of which is quoted herein below: “10.Now, it must be observed that by subsequent amendment to the Act, Section 7-D was brought on the statute-book by the legislature and a statutory remedy of appeal before the Appellate Tribunal was made available for challenging the order under Section 7-A of the Act. Such a Tribunal is also established vide a notification dated 30.06.1997. We have already made necessary observations in this connection in our judgment and order passed today in Civil Appeals Nos. 5540-5541 of 1983. Consequently, in the light of our observations in the aforesaid 21 decision, it must be held that the present appellant also is required to be relegated to the statutory remedy of appeal before the Appellate Tribunal, Delhi functioning under Section 7- D of the Act. For that purpose, we grant two months' time to the appellant to file appropriate statutory appeal against the impugned Section 7-A order. Once this appeal is filed, it will be open to the appellant to put forward all the legally permissible contentions against the Section 7-A order including the contention, if any, pertaining to the jurisdiction of the authority passing such orders. All these contentions will be examined by the Tribunal on their own merits after hearing the parties concerned. 11.We express no opinion on the merits of the controversy centering round the impugned Section 7-A order. It is obvious that the High Court has not observed anything on merits of the order against the appellant. Therefore, the Tribunal will led by the contesting parties before it and in the light of all legally permissible contentions canvassed for its consideration.”

30. The Hon'ble Apex Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors as reported in AIR1999SC22has been pleased to hold that the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution , in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. But,from perusal of the record, it is manifestly clear that in case of lack of jurisdiction or usurpation of jurisdiction, the High Court can exercise jurisdiction in spite of availability of alternative remedy, but, in the instant case, it is nobody's case that Provident Fund Commissioner does not have the jurisdiction to decide the employer- employee relationship and to decide the quantum of provident fund amount, if it requires under the Act. But, from perusal of the record, it appears that the RPFC has by going through the 22 evidences/depositions of witnesses and documents available on record decided the matter vide order dated 09.10.2015, which is under challenge.

31. It is well settled proposition that High Court under Article 226 of the Constitution of India has ample power to issue directions, orders or writs as it is a basis feature but, ignoring the fact that aggrieved person has an efficacious alternative remedy or statute provides for alternative remedy, the writ Court should not ordinarily departs from the general rule, entertain such application, ignoring statutory dispensation or usurp the power of appellate authority and acts as an appellate authority.

32. In this regard, it would be apposite to refer the relevant paragraphs of the decision rendered in the case of Nivedita Sharma vs. Cellular Operators Association Of India & Ors as reported in (2011) 14 SCC337, which are quoted herein below: “11.We have considered the respective arguments/submissions. There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation—L. Chandra Kumar v. Union of India. However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by a quasi-judicial body/authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created 23 by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.

12. In Thansingh Nathmal v. Supdt. of Taxes this Court adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed:

“7. … The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.”

13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa this Court observed: (SCC pp. 440-41, para 11)

“11. … It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J.

in Wolverhampton New Waterworks Co. v. Hawkesford in the following passage: (ER p.

495) ‘… There are three classes of cases in which a liability may be established founded upon a statute. … But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. … The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.’ The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. 24 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd. and Secy. of State v. Mask and Co. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine.”

14. In Mafatlal Industries Ltd. v. Union of India B.P. Jeevan Reddy, J.

(speaking for the majority of the larger Bench) observed: (SCC p. 607, para 77)

“77. … So far as the jurisdiction of the High Court under Article 226—or for that matter, the jurisdiction of this Court under Article 32—is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment.”

15. In the judgments relied upon by Shri Vaidyanathan, which, by and large, reiterate the proposition laid down in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, it has been held that an alternative remedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute is under challenge.

16. It can, thus, be said that this Court has recognised some exceptions to the rule of alternative remedy. However, the proposition laid down in Thansingh Nathmal v. Supt. of Taxes and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field.”

2. 33. In view of the specific provisions of appeal under the Statute in particular under the Act of 1952, which has been enacted by parliament; and judicial pronouncement made in above-referred cases, this Court feels it expedient not to delve into or dwell upon the merit of the matter, or go into the legality ad propriety of the case, lest it should adversely affect the case of the respective parties. Therefore, this Court precludes form commenting on the merit of the matter as it would adversely affect the case of the parties.

34. In such view of the matter, the writ petitions are disposed of with liberty to the petitioners to approach appropriate forum to avail the alternative remedy of appeal provided under the statute. In the event, the petitioners approach the Tribunal, the appellate authority shall decide the case on its own merit, and do well with the appeal preferred by the petitioners and decide the matter as expeditiously as possible since the parties have been in litigating terms for more than three decades.

35. With the aforesaid observations and directions, both the writ petitions are disposed of.

36. Resultants, all the Interlocutory Applications, also stands disposed of. (Pramath Patnaik, J.) Alankar/-


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