O R D E R
1. W.P.24409 of 2010 was filed by the TASMAC Transport Contractor represented by its President. The other four writ petitions were filed by individual transport contractors engaged by the respondent TASMAC. The challenge in all the five writ petitions are to the circular issued by the respondent TASMAC dated 23.06.2010.
2. By the impugned circular, the Chief General Manager (Finance) informed the Transport contractors, who engages the workers for loading and unloading of IMFS/Beer products and when they pay the unloading charges all statutory payments arising out of unloading charges have also to be borne by them. It was also informed that as per transport tender condition and contract executed by transport contractors the rate is inclusive of all statutory levies such as service tax, EPF etc and the primary responsibility of the transport contractor is to take care of all statutory requirements in respect of loadmen such as covering the loadmen under the Employees Provident Fund and Miscellaneous Provisions Act (for short EPF &MP; Act) or any other act. Transport contractors must register themselves under the EPF and MP Act, enroll the loadmen under the Act, make monthly contributions, file monthly and annual returns. It was also declared by the 3rd respondent that TASMAC is no way connected with loadmen. TASMAC is neither directly nor indirectly engage those loadmen ; it is the responsibility of the contractors to make contribution under the EPF in respect of load men. It was informed that it is the responsibility of District Managers and Managers of IMFS depot to ensure the compliance of EPF related matters by transport contractors. Due to the negligence of District Managers and Depot Managers if any payment is to be made to EPF authorities or there is loss an account of attachment of Bank accounts, if any, the District Manager and Depot Manager will be held personally responsible. The petitioners contending that the conditions imposed is illegal, chosen to move this court with these writ petitions.
3. W.P.No.24409/2010 was admitted on 28.10.2010 and the other writ petitions were admitted on 18.11.2010. Pending writ petitions, interim stay was granted.
4. The contentions raised by the petitioner in all the five writ petitions was that the circular issued by the respondent is violative of the provisions of the Provident Fund Act. There was no relationship between the transport contractors and the load men, who was attached to the Trade Union represented by the fourth respondent. The Transport contractors need not pay any amounts towards the load men engaged by the second respondent as the load men were recruited by the District Managers and Depot Managers. The transport contractors were neither directly nor indirectly involved in their recruitments. The unloading charges paid by the IMFS and Beer manufacturers is higher than the Handling and Loss charges paid by the Transport Contractors. While the transport contract period is only for the period of one year, but the loadmen engaged in the Depots are one and the same that too for nearly thirty years. The respondent TASMAC being the Government owned company, they should be in-charge of welfare measures including contributions to the Provident Fund. Under such circumstances, they sought for quashing of the impugned circular.
5. It is not clear as to how the petitioners could challenge a circular issued by the Tamil Nadu State Marketing Corporation Limited (TASMAC). Admittedly, the petitioners are contractors for running transport service and the condition imposed on the Notice Inviting Tender (NIT) can never be a subject matter of challenge except under the touchstone of Articles 14 and 16 of the Constitution. In the impugned circular, all that it has been indicated was that even in the original term of contract, the liability to pay the Provident Fund vests only with the particular contractor. Therefore, the impugned circular reinforces the said point. For some reason, if the petitioners have not engaged the loading and unloading workers, they can certainly take such stand as found in the affidavit. In those circumstances, it is for the respondent TASMAC to decide the relationship between the petitioners and the respective load men, but certainly on that ground the impugned order cannot be quashed.
6. In this context it is necessary to point out that TASMAC itself moved this Court in W.P.No.8659 of 2008 challenging the notice issued by the Provident Fund Department dated 29.02.2008. In that writ petition, they have made three contractors as party respondents. This court dismissed the said writ petition by citing Regulation 30 of the Employees Provident Fund Scheme, 1952 to the effect that even liability arising out of employees engaged through contract vests with the principal employer. Therefore, there is no scope for interfering with the impugned notice. When once the stand of the respondent TASMAC is that the loading and unloading workers are not engaged by them, safeguard need be made insisting their respective contractors to get themselves registered under the Provident Fund Act as a separate employer, for the purpose of contributing the amounts towards EPF, in respect of labour engaged by them.
7. The circumstances pleaded by the petitioners have raised piquant situation resulting in loading and unloading workers were engaged either by the TASMAC or by the contractors. Certainly, it cannot be held those employees are engaged on self employment basis. It must be noted that the employees engaged by the TASMAC are squarely covered by the Employees Provident Fund and Miscellaneous Provisions Act, 1952 and it was covered by the notification issued by the Circular dated 30.04.1962. If once the principal employer is covered then any employees engaged by the contractors in connection with the work of the Principal employer are indirectly covered by the EPF Act. In case of non payment of contribution and if the PF authorities fixed the responsibility on the principal employer, it is always open to the Principal Employer to safeguard their liability by entering into a specific contract with the contractors, by whom the labourers are out-sourced so as to get their liability removed.
8. In such circumstances, the contractors cannot come to this court and dispute their liability in respect of registration under the provisions of Employees Provident Fund Act in respect of the employees engaged by them.
9. In this context, it is necessary to refer to the judgment of the Supreme Court in Bandhua Mukti Morcha v. Union of India and others reported in (1984) 3 SCC 161, in paragraph 18, held that liabilities to implement the labour laws vest on the Government also. The said passage may be usefully extracted below:- "18:-We may point out that in addition to the rights and benefits conferred upon him under the Inter-State Migrant Workmen Act and the Inter-State Migrant Workmen Rules, an inter-State migrant workman is also, by reason of Section 21, entitled to the benefit of the provisions contained in the Workmen's Compensation Act, 1923, the Payment of Wages Act, 1936, the Employees' State Insurance Act, 1948, the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, and the Maternity Benefit Act, 1961. The obligation to give effect to the provisions contained in these various laws is not only that of the jamadar or thekedar and the mine lesses and stone crusher owners (provided or course there are 5 or more inter-State migrant workmen employed in the establishment) but also that of the Central Government because the Central Government being the "appropriate Government" within the meaning of Section 2(1)(a) is under an obligation to take necessary steps for the purpose of securing compliance with these provisions by the thekedar or jamadar and mine lesses and owners of stone crushers. "
10. In that case, the Supreme Court had specifically directed the Government to see to it that the employees are covered by the various labour enactments including the Provident Fund Act. In case where the Government engages the employees by out-sourcing the work, it was directed that they must make appropriate safeguards for covering those uncovered employees under various labour enactments by stipulating such terms in the contract itself.
11 In such circumstances, this court is not inclined to interfere with the impugned circular. Accordingly, the writ petitions stand dismissed. No costs.