- (1.) This Letters Patent appeal has been filed by the Central Provident Fund Commissioner impugning the judgment of the learned Single Judge in W.P. No. 2982(W) of 2005 dated 07.04.2006. Since the issue raised herein is intrinsically legal, we may notice only the skeletal facts.
(2.) The writ petitioner no. 1, a Private Limited Company (hereinafter referred to as the Company) is engaged in manning the Captive Railway System of Damodar Valley Corporation (hereinafter referred to as the DVC), the pro-forma respondent no. 4. Its only connection with DVC is a contract to supply personnel for manning the cabins and gates on the railway road. It receives the remuneration for supplying the aforesaid personnel. It had engaged 28 persons who were retired employees of the Indian Railways on a lumpsum honorarium basis. By letter dated 18th February, 2002, the Company was informed that its establishment came under the purview of the Employees Provident Fund Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act). In reply, the Company by letter dated 5th March, 2002 informed that all its employees were retired Railway staff and working only on contract basis. They were all over 58 years of age and, therefore, would not be covered under the Act. By another letter dated 22nd May, 2002, the Company elaborated that the employees being retired employees did not come within the purview of the Act. It was stated that these employees whilst in the service of the Railways were not covered under the Employees Provident Fund Scheme 1952 (hereinafter referred to as the 1952 Scheme) but were covered under the General Provident Fund (GPF) and drew all the superannuation benefits including Provident Fund (PF) and pension. They could not be treated as employees covered under the Act. In other words, it was claimed that these employees were entitled to be treated as 'excluded employees', under Paragraph 26 of the 1952 Scheme. It was claimed that these employees are in receipt of benefits which are more favourable than the benefits available under the 1952 Scheme. They have, therefore, expressed their unwillingness in writing to become members of the 1952 Scheme. The department was, however, of the opinion that the employees of an establishment are eligible for enrolment as members of the 1952 Scheme irrespective of age. It concluded that the employees of the Company were not 'excluded employees' as defined under the 1952 Scheme. Therefore, they were required to be covered under the Act irrespective of the fact that they were getting Pension under the relevant GPF Rules. Faced with this situation the Company by way of abundant caution applied for exemption under Section 17 of the Act and Paragraph 27 of the 1952 Scheme on the ground that the employees are retired Railway personnel. No decision was taken on the representation of the Company. In the meantime, the competent authority under the Act, commenced proceedings under Section 7A of the Act against the Company. After hearing the petitioners, the competent authority by order dated 31st December, 2004, determined the amount payable by the petitioner under various heads. Aggrieved by the aforesaid order, the Company challenged the same by way of writ petition.
(3.) In the order impugned in the writ petition, the Provident Fund Commissioner concluded that even a retired Government employee in private sector concern, is required to subscribe to the Act. It is held that this is evident from the fact that even the retired defence personnel working in private sector concerns are under the ambit of the Act. It has also been observed that the provisions of the EPFA are not repugnant to the GPF Act. Since a person is entitled to draw double or multiple pension, the retirement of the employees from the Railways on superannuation would not fall within the definition of 'excluded employee'.;