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Rajasthan High Court · body

1997 DIGILAW 766 (RAJ)

D. C. M. Limited v. Regional Provident Fund Commissioner

1997-07-02

V.K.SINGHAL

body1997
Honble SINGHAL, J.–The petitioner has challenged the order of determination of dues under Section 7-A of the Employees Provident Fund and Misc. Provisions Act, 1952 dated 6.5.1986 by which the liability in respect of Good Work Regard and Contractors Employee was determined. (2). The submission of the learned counsel for the petitioner is that good workreward has been paid to the employees for the over time which does not fall within the definition of basic wages as defined under Section 2(b) of the Employees Provident Fund and Misc. Provisions Act, 1952. It is also submitted that the words `any other similar allowance payable to the employee have also been used u/S. 2(b)(ii) and as such even if the amount does not fall within the category of `overtime allowance then it is `any other similar allowance. The second point which has been raised is with regard to liability which has been fixed on account of Contractors employee and good work. It is stated that those employees were neither employed by the petitioner company nor are known to the petitioner and few of the contractors are already covered under the Act and are paying dues. It isalso stated that the notice has not been given for all the contractors while the liability has been determined in respect of various contractors and thus, the petitioner is deprived of basic principles of audi alterem partem. (3). In this regard it may be observed that in the order of determination dated 6.5.1986 the Commissioner observed that the petitioner has not furnished the parti-culars relating to contractors employees, their pay etc. except to the extent that few of their transport contractors have been stated to be already covered under the Act and the other two do not own any truck but only arrange trucks from the market whenever required. (4). Written submissions were made on 18.10.1985 in respect of the period1967-68 to 1984-85 for the payments towards Good Work Reward. The payment for the notice period upto 1983 were Rs. 1,70,06,156. In respect of employees engaged through transport contractors for transport and handling of material the notional wages were computed at a figure of Rs. 1,21,86,720/- in which margin of 25% was given and thus total liability i.e. liability of provident fund on account of Good WorkReward was fixed at a figure of Rs. 28,53,895/- and in respect of Contractors employees Rs. 20,41,801/-. (5). 1,21,86,720/- in which margin of 25% was given and thus total liability i.e. liability of provident fund on account of Good WorkReward was fixed at a figure of Rs. 28,53,895/- and in respect of Contractors employees Rs. 20,41,801/-. (5). The basic contention which has been raised in the present matter and the facts also do not appear to be in dispute and the nomenclature of Good Work Reward was used by the petitioner company for the work done by the workmenbeyond normal working hours and even beyond over time hours. Though, there had been some factual dispute also, but I am not going on that matter and assuming that Good Work Reward was paid for the work done by the employees beyond normal working hours and over time hours, the question arises as to whether such payment could be considered to be over time and if it is not for the over time whe-ther then it could be said to be similar allowance having the nature of over time. (6). The words `over time allowance have not been defined under the Act of 1952. Under Section 59 of the Factories Act, 1948 the provisions exist for making the payment of extra wages for over time. It provides that where a worker works in a factory for more than nine hours in any day or for more than forty-eight hoursin any week, he shall, in respect of overtime work, be entitled to wages at the rate of twice his ordinary rate of wages. Section 51 refers to the weekly hours and no adult worker shall be required or allowed to work in a factory for more than forty-eight hours in any week. Section 64 provides the power to make rules and it has been left to the State Government to make the rules for over time. Sub-section(4) of Sec. 64 provides that in making such rules the State Government shall not exceed, the limits which have been given therein and total number of hours of work in any day is restricted to 10 hours. There are other restrictions also and in a week the total number of over time hours cannot exceed 12, even they cannot be more than 50 hours for over time work. There are other restrictions also and in a week the total number of over time hours cannot exceed 12, even they cannot be more than 50 hours for over time work. According to the learned counsel for the peti-tioner if the work is undertaken beyond outer limit which has been fixed under Sec.64(4) of the Act of 1948, it remains in the nature of over time and for which the company could be made liable under the Factories Act, but so far as the Act of 1952 is concerned, it is submitted that it should be considered to be over time allowance and if it is not over time allowance, then it is similar allowance payable to an emplo-yee and, therefore, the exclusion clause u/S. 2(b) would apply so as to determine any liability on good work reward. (7). I have considered over the matter. The liability under the Act is not depending on the phraseology used by the employer. For taking the work beyond the hours fixed under the Factories Act, one may call it as over time allowance,other may call it as extra works allowance or extra hours allowance and there can be different nomenclature for that purpose. The question which has to be determined is whether the payment which has been made to a workman/employee in respect of the period which does not fall within normal duty hours or within over time hours would be said to be over time allowance or is a payment of similar na-ture to fall it within the category of similar allowance payable. Basic wages includes all the emoluments which are earned by an employee while on duty. The exception has been provided in clause (i)(ii)(iii) of Sec. 2(b). Since, the Act of 1952 has not defined the over time allowance the expression used under the Factories Act, 1948 therefore, has to be seen, Under the Factories Act, the working beyond time speci-fied for over time is completely prohibited and such a payment is not considered the over time allowance. Section 59 of the Act of 1948 has provided the rate of double wages for over time. Neither there is any provision in this Act with reference to the working of an employee beyond over time prescribed under the Factories Act. A work which is completely prohibited by an Act cannot be considered to befalling within the perview of that Act. Neither there is any provision in this Act with reference to the working of an employee beyond over time prescribed under the Factories Act. A work which is completely prohibited by an Act cannot be considered to befalling within the perview of that Act. Even othersise, the Act of 1952 is beneficial legislature and is meant for the welfare of the workmen. The employer may act in its interest to take work which is forbidden by the Act. If such work is taken then he cannot complain that the employee is not to be benefitted by the contribution of the provident fund. Firstly, the work which is forbideen or persi illegal and does not fall within the definition of over time in view of the restriction being imposed on the working hours cannot be considered to be over time and secondly if the work is obtained by the employer contrary to the Act or the Rules made then he cannot get the benefit of his own wrongs. Normally, the good work reward could be for the good work which is performed by an employee during the course of employment which may be during the normal factory hours or during over time hours, such an award would partake the same character as the basic wages are i.e. if it is paid for any good work during the normal office hours then it would be part of the basic wages and if it is in respect of over time, then it would be part of overtime, if it is neither in respect of normal working of the factory nor in respect of over time, then it would be covered by the definition which has been given u/S. 2(b) of the Act of 1952 of basic wage is exhaustive. The first line of the definition of basic wages which incorporates all emoluments which are earned by an employee while on duty, includes all such payments which are made to an employee otherthan which are specifically excluded. The specific exclusion is of over time allowance and since the allowance which has been paid cannot be considered to be over time allowance, the exclusion clause would not apply. The specific exclusion is of over time allowance and since the allowance which has been paid cannot be considered to be over time allowance, the exclusion clause would not apply. It may be observed that under the Factories Act and the Rules made thereunder separate accounts and registers have to be maintained or over time work and admittedly the present allo-wances of work done for which good work reward was given, were not incorporated in such registers and do not fall within over time permitted under the Factories Act. The Apex Court in the case of Regional Provident Fund Commissioner vs. S.D. College, Hoshiarpur and Others (1) has also considered the Act of 1952 as a beneficial welfare legislature to ensure help and other benefits to theemployees. In the case of Regional Provident Fund Commissioner vs. M/s. K.T. Rolling Mills Pvt. Ltd. (2) it was also observed that the Act was enacted to serve beneficient purpose and it does not constitute a welfare measure, as it seeks to create a fund which could be drawn upon by certain categories of employees working in factories and some establishments to meet pressing demands so alsoto provide pensions after the employees have ceased to be in service. The company which has acted contrary to the provisions of the Act cannot take benefit of its own wrong and say that the provident fund is not payable to such a worker to whom good work allowance has been paid. (8). The contention that the good work allowance is in the nature of over timeallowance and `other similar allowance which have also been excluded from the definition of basic wages. This contention has also no force because applying the theory of No Scitur Asociis i.e. The meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it. Thus only those allowances which are of the nature specified under the exclusion clause would be consi-dered to have been excluded. Since, the good work allowance have not been considered to be in the nature of over time allowance, therefore, it cannot be considered that it is of similar nature as `over time as it is contrary to the provisions of the Act. (9). Since, the good work allowance have not been considered to be in the nature of over time allowance, therefore, it cannot be considered that it is of similar nature as `over time as it is contrary to the provisions of the Act. (9). The next contention which has been raised is with regard to inclusion ofthe amount of contractors employees for which it is stated that the said employees were not the employees of the company. This matter was considered by the Apex Court in the case of Royal Taking Hyderabad and Others vs. Employees State Insurance Corporation (3) as well in the case of M/s. P.M. Patel & Sons vs. Union of India (4) and followed in the case of M/s. Mridang Cinema vs. UOI & Ors. (5) wherethe employees of independent Contractor were considered employees within the definition given under the ESI Act. The contractors employees in the present case were for loading and un-loading in respect of transport contract entered into. On the basis of the agreement which has been entered into the Contractor was to employ certain employees. The petitioner company has submitted in its reply that two of such contractors were already covered in the perview of the Act of 1952 and the employees of those two contractors have been excluded in determining the liability, of the petitioner. In respect of rest of them, no such allegation was raised. The notice which has been issued to the petitioner is for contractors employees liability and not for the transporters employees liability. The determination which has been made was on account of non-furnishing the complete details and particulars. The notices which were issued to the petitioner, cannot be considered to be vague. In a case where the information was not furnished by the assessing authority by employer he can make the assessment to the best of his judgment on the basisof information on record available with them. It is not necessary for taking the employees of the contractor within the perview of the Act as the liability of the petitioner as a principal employer, that principal employer should know as to which are those employees, nor it is necessary that they should be employed after taking the consent of the principal employer. It is not necessary for taking the employees of the contractor within the perview of the Act as the liability of the petitioner as a principal employer, that principal employer should know as to which are those employees, nor it is necessary that they should be employed after taking the consent of the principal employer. The definition of Employee u/S. 2(f) refersto 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 and includes any person employed by or through a contractor in or in connection with the work of the establishment. This definition makes it clear that even if the contractor has employed any person thenhe will be an employee of an establishment and if it is in connection with a work of the establishment then he will be the employee of the principal employer. It is not necessary that the order of employment would be issued by the principal employer. The work of transportation was in connection with the work of establishment. Learned counsel for the petitioner has submitted that the employees ofloading and un-loading are already covered and, therefore, the dispute remains for the employees of the contractor who were engaged in transportation. Since, the work is also in connection with the work of establishment though employed through a contractor, they will be considered to be employee as defined u/S. 2(f) of the Act of 1952. The contention that the notice was issued for the limited purposefor determining the liability of transportor employee alone and not of all the contractors, employees has also no substance in view of clear language of notice issued to the petitioner in which the liability is sought to be determined over the contractors employees. (10). In these circumstances, I do not feel that any mistake has been commit-ted by the respondents in determining the liability. (11). The writ petition having no force is accordingly dismissed.