KURUVILLA T T Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner is the proprietor of M/s. Aleppey Parcel Service, a proprietary concern having branches in different parts in the State of Kerala. Hereinafter, the said proprietary concern is referred to as the 'establishment'. The establishment is registered under the Motor Transport Workers Act (for short the 'Act') with No. LBR-04-08-2/2000. There are 311 employees working in the establishment in different categories such as office staff, booking clerk, cash clerk, depot clerk, watch man, attendant, drivers and cleaners of the motor vehicles belonging to the establishment, according to the petitioner. The further contentions of the petitioner are as hereunder:-

(2.) I have heard the learned counsel for the petitioner, the learned Central Government counsel, the learned Government Pleader, the learned standing counsel appearing for the second respondent and the learned standing counsel for respondents 4 and 5.

(3.) The rival pleadings adverted to hereinbefore, would bring forth certain incontrovertible factual position. The establishment is already covered under the EPF Act with EPF Code No. KR/21099 with effect from 21.5.2004. The workers who are directly connected with the operation of the road motor transport service under the petitioner's establishment were brought under the purview of Kerala Motor Transport Workers Welfare Fund as per Ext. P2 and at the same time, the other staff belonging to different categories not directly connected with it were brought under the purview of EPF Act as per Ext. P3. Though the petitioner had challenged the coverage of the establishment under the EPF Act on receipt of coverage notice dated 14.2.2005, he gave up the challenge during the enquiry under section 7A and later, it was made absolute. In this context, it is to be noted that even after obtaining time for filing a reply affidavit to the statement filed by the second respondent, on request, the petitioner has not chosen to refute the specific statements of the second respondent adverted to hereinbefore. Now, the stand taken by the petitioner is that both the Welfare Fund Act and EPF Act are applicable to petitioner's establishment and therefore, selection of one Act for the workers directly connected with the operation of road motor transport service and the other Act for the rest of the employees unconnected with it, is permissible. It is to be noted that the specific contentions raised by the second respondent in the light of Ext. R2(b) and R2(c) are not at all disputed by the petitioner. As already noticed hereinbefore, going by the specific contentions raised by the second respondent which are supported by the documents, the petitioner had actually withdrawn his challenge against coverage under the EPF Act but, yet to comply with the provisions of that Act inasmuch as by not enrolling all its permanent employees who fall under the definition 2(f) of the EPF Act in terms of paragraph 26 of the Scheme which makes such enrollment, as member of the provident fund inevitable from the respective dates of their joining in the service of the establishment. In such circumstances, the question is whether a selective option in respect of certain categories of employees is permissible It is to be noted that it is not the individual employee under an establishment or a proprietary concern who is brought under the purview of the EPF Act through a coverage notice. Indisputably, it is the concern or the establishment is brought under the EPF Act subject to the satisfaction of the conditions of coverage under section 1(3)(b) of the EPF Act. The said section reads thus:-