Dinesh Maheshwari, J. - (1.) In this appeal by special leave, the appellants (writ petitioners) have called in question the judgment and order dated 07.05.2008 in FMA No. 537 of 2007 whereby, the Division Bench of High Court at Calcutta has reversed the order dated 07.04.2006, as passed by the learned Single Judge in W.P. No. 2982(W) of 2005. 1.1. By the aforesaid order dated 07.04.2006, the learned Single Judge of High Court allowed the writ petition filed by the appellants while upholding their contentions that the employees of Railways, who had withdrawn full amount of provident fund while retiring and who were engaged by them on lump sum honorarium basis, should be treated as "excluded employees" for the purpose of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as 'the Act'/'the Act of 1952') and the Employees' Provident Funds Scheme, 1952 (hereinafter referred to as 'the Scheme of 1952'). However, in the Letters Patent appeal preferred by the Central Provident Fund Commissioner and the Regional Provident Fund Commissioner, the Division Bench of High Court totally disagreed with the learned Single Judge; and dismissed the writ petition while holding that the said employees, who retired after serving an exempted employer, would not fall within the category of excluded employees on re-employment and would be covered by the Act and the Scheme of 1952.
(2.) The basic question arising for determination in this appeal is as to whether the retired employees of Railways, who had withdrawn all the superannuation benefits, including full amount of accumulations in their provident fund accounts, are to be treated as "excluded employees" in terms of Paragraph 2(f) of the Scheme of 1952? If to be treated as "excluded employees", the said retired employees of Railways, on being re-employed by the appellants, may not be required to join the Fund created under the said Scheme of 1952 and consequently, the appellants may not be obliged to make any contribution in that regard.
(3.) The relevant factual aspects leading to the question aforesaid are not of much controversy and could be briefly summarised as follows: 3.1. The appellant No. 1, a Private Limited Company, had been engaged in manning the Captive Railway System of the respondent No. 4-Damodar Valley Corporation ('DVC'). The appellant No. 2 is said to be a Director of the appellant No. 1-company. The appellants would submit that their only connection with DVC had been a contract to supply the personnel for manning the cabins and gates on the railway-road; and they were receiving the remuneration for supplying the aforesaid personnel, who were retired employees of the Indian Railways and were engaged on a lump sum honorarium basis. 3.2. By his letter dated 18.02.2002, the Assistant Provident Fund Commissioner Circle-IV, Calcutta informed the appellant-company that the number of employees of its establishment being twenty-eight in the month of May, 1999, the establishment came within the purview of the Act of 1952 with effect from 01.05.1999. In reply, the Director of the appellant-company stated in his letter dated 05.03.2002 that all the persons engaged by the company, except two of them, were the retired Railway employees above 58 years of age; that all of them were working only on retainer basis; and that they were not covered under the Employees' Provident Fund Scheme. The said Assistant Provident Fund Commissioner, in his letter dated 03.05.2002, refuted the contentions of the appellants while referring to Paragraph 26 of the Scheme of 1952 and while asserting, inter alia, that on and from 01.11.1990, an employee is eligible for enrolment as a member of the Scheme of 1952 from the date of joining an establishment covered under the Act of 1952; that there was no age bar for an employee to become a member of the Scheme of 1952; and that the employees in question were not excluded employees in terms of the Scheme of 1952. 3.3. It appears that the appellant-company applied for exemption under Section 17 of the Act and Paragraph 27 of the Scheme of 1952 on the ground that the persons concerned were retired Railway employees but then, no decision was taken on such representations. On the other hand, by yet another letter dated 22.05.2002, the appellant-company elaborated on its contentions that the employees in question, being retired employees of Railways, did not come within the purview of the Act of 1952 and were to be treated as "excluded employees" under Paragraph 26 of the Scheme of 1952. It was stated that these employees, whilst in the service of Railways, were not covered under the Scheme of 1952 but were covered under the General Provident Fund ('GPF') Scheme and had withdrawn all the superannuation benefits including Provident Fund ('PF') and pension and hence, they were not covered under the Act of 1952. It was also claimed that these employees were in receipt of more favourable benefits than those available under the Scheme of 1952 and had expressed their unwillingness to become the members of the Scheme of 1952. However, the authorities related with the Employees' Provident Fund Organisation (the contesting respondents herein) maintained that the employees of an establishment were eligible for enrolment as members of the Scheme of 1952 irrespective of age; and the employees of the appellant company were not "excluded employees", as defined in the Scheme of 1952. 3.4. The appellant-company having failed to remit the requisite contribution in relation to the employees concerned, the competent authority under the Act of 1952 commenced proceedings under Section 7A thereof, for determination of the money due from the appellants. By its order dated 31.12.2004, the competent authority, after having heard the appellants, determined the amount payable by the appellant-company under various heads while holding, inter alia, that the provisions of the Act of 1952 were not repugnant to the GPF Scheme; that a person was entitled to draw double or multiple pension/s; and that the retirement of the employees from Railways would not take them within the definition of "excluded employees". Aggrieved, the appellants preferred the writ petition before the High Court at Calcutta [W.P. No. 2982(W) of 2005].;