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Gobinda Nayak Vs. D. Mishra and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 2543 of 1983
Judge
Reported in1984(II)OLR741
ActsEmployees' Provident Fund Act, 1952
AppellantGobinda Nayak
RespondentD. Mishra and ors.
Appellant AdvocateP. Palit, ; J. Patnaik, ; R. Mohapatra and ; A.K. Bhagat, Advs.
Respondent AdvocateK.C. Mohanty, ; S.S. Mohanty and ; Addl. Standing Counsel
DispositionApplication allowed
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - it has been contended that the aforesaid recovery is bad in law......dam project and also other projects. he has prayed for issue of a writ of mandamus directing opposite party no. 1 to make immediate payment of the special construction allowance to each workman working in the rengali dam project.2. the facts relevant for disposal of this writ application are as follows:--the construction work of the rengali dam project began in the year 1972 and for the purpose, a large number of workers were employed in various sections of the project. it is not disputed that the establishment and its workmen came within the ambit of the employees provident funds and misc. provisions act, 1952 and the scheme framed thereunder. the employees' provident funds and misc. provisions act, 1952 (for short the act') and the scheme were made applicable to the aforesaid.....
Judgment:

P.C. Misra, J.

1. The petitioner in this writ application is the General Secretary of the Rengali Workers' Co-ordination Committee representing the entire working people of Rengali Dam Project and also other projects. He has prayed for issue of a writ of mandamus directing opposite party No. 1 to make immediate payment of the special construction allowance to each workman working in the Rengali Dam Project.

2. The facts relevant for disposal of this writ application are as follows:--

The construction work of the Rengali Dam Project began in the year 1972 and for the purpose, a large number of workers were employed in various sections of the project. It is not disputed that the establishment and its workmen came within the ambit of the Employees Provident Funds and Misc. Provisions Act, 1952 and the Scheme framed thereunder. The Employees' Provident Funds and Misc. Provisions Act, 1952 (for short the Act') and the Scheme were made applicable to the aforesaid establishment in November, 1980. Yet, the Chief Engineer of the project did not make payment of the contribution as required under the Act and the Scheme. Ultimately the Regional Provident Fund Commissioner, opposite party No. 2, brought to the notice of opposite party No. 1 that unless statutory contributions were deposited the penal consequences envisaged under the Act and the Scheme would follow, After a series of correspondence made between opposite parties Nos. 1 and 2, opposite party No. 1 finally agreed to deposit the statutory contributions and admitted that the provisions of the Act and the Scheme would be operative in the project from November, 1980. Initially there was objection from the side of opposite party No. 1 to make any payment of the employees' share under the Scheme which was overruled by opposite party No. 2. Opposite party No. 2, however, agreed to exempt opposite party No. 1 from making any payment towards the employees' shave till November, 1981 as opposite party No. 1 was first put to notices for the said liability in that month. Opposite party No. 1 started depositing the employees' share from June, 1982 deducting the same from the dues of the employees. He, however, expressed his unwillingness to make any deposit for the period from December, 1981 till May, 1982 and sought for clarification from opposite party No. 2 in that behalf. The correspondences which passed on between opposite parties Nos. 1 and 2 in this connection have been annexed to this writ petition as Annexures-1, 2 and 3. Ultimately opposite party No. 1 deposited the dues representing the employees' share of the provident fund for the aforesaid period in August, 1983 and decided to recover the same from the future wages and allowances of the employees. Thereafter a controversy arose when the petitioner representing the entire working people raised objection to such recovery on the ground that; the same was not permissible under the law. Opposite party No. 2 also issued necessary guidelines in the matter in a communication to opposite party No. 1 indicating the legal position that the employees' share of contributions for the back period was not recoverable either from their current or from their arrear dues and that the employer was liable to pay the both. In spite of the aforesaid communication, opposite party No. 1 directed the respective Executive Engineers not to release the special construction allowance due to the employees for the period from March, 1983 to July, 1983 and withhold the same for the purpose of making recovery of the amount deposited by the employer towards the employees' share for the period from December, 1981 to May, 1982. It is also alleged that the additional clearness allowance for the months from September, 1982 till June, 1983 which was sanctioned for payment was not paid to the workmen and was directed by opposite party No. 1 be clubbed with the aforesaid construction allowance for the months from March, 1983 to July, 1983 for recovery of the employees' share of the provident fund paid by the employer for the back period. It has been contended that the aforesaid recovery is bad in law.

3. In the counter affidavit filed cm behalf of opposite party No. 1, the factual position averred in the writ petition has not been disputed. It has, however, been stated that Cl. 30 ' of the Employees' Provident Funds Scheme read with Section 6 of the Act makes the employed liable to pay the contributions both towards the employer's share and the employees' share and the employees' share is recoverable from their wages. Some emphasis has been placed on the use of the expression the first instance in Clause 30 (1) of the Scheme. The case of opposite party No. 1 is that the amount deposited by the employer representing the employees' contributions for the period from December, 1981 to May, 1982 is recoverable from the wages and other allowances which the employees are to get in future.

4. At the time of issuing notice of admission, this Court by order, dated 5. 12. 1983, directed that the additional dearness allowance for the months from September, 1982 to June, 1983 would be released in favour of the employees which would be subject to the final decision of the writ petition.

5. Having heard the learned counsel for both the parties at length, we find no basis in law to support the proposed deductions sought to be made by the employer from the dues of the employees. Clause 32 of the Scheme among other things provides that no such deduction shall be made from any wage of the employee other than that which is paid in respect of the period or part of the period in respect of which the contribution is payable. The First Proviso to Clause 32 of the Scheme thus offers a specific bar against the deduction of the employees' share of provident fund contribution in respect of the back period from the future wages or dues of the employees. Consequently, the direction of opposite party No. 1 for withholding the payment of special construction allowance for the months from March, 1983 to July, 1983 and also the additional dearness allowance as indicated earlier is against the statutory provisions and is, therefore, liable to be struck down.

6. In the result, the writ application is allowed and a writ of mandamus be issued directing opposite party No. 1 to make payment of the special construction allowance and the additional clearness allowance to each workman working in the Rengali Dam Project without any deduction whatsoever on account of the provident fund contribution paid for the months from December, 1981 to May, 1982. In the facts and circumstances of the case, we do not make any order as to costs.

G.B. Patnaik, J.

7. I agree.


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