S.K.KESHOTE, J. - (1.) These two matters are in between the same parties and arising from the proceedings initiated by the respondent Regional Provident Fund Commissioner, Nidhi Bhawan, Jyoti Nagar, Jaipur (for short, the 'respondent-Commissioner') under Section 7-A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter shall be referred to as 'the Act, 1952') and, thus, the same are taken up for hearing together and are being decided by this common order. In the writ petition, the petitioner D.C.M. Limited, Bara Hindu Rao, Delhi-6 (the appellant in the special appeal) (hereinafter shall be referred to as 'the establishment firm') challenged the order dated May 15, 1985 of the respondent-Commissioner. This order is enclosed of the writ petition as Annexure-15 at page Nos. 71-77. Under this order, the respondent-Commissioner held that the employees of the transport contractors are the employees of the establishment for the purpose of the Act, 1952 and that the Good Work Reward (for short, 'GWR') given to the employee is not in the nature of overtime. The respondent-Commissioner after recording the findings on these points against the establishment under the impugned order, ordered to proceed further to determine the amounts of provident fund due in respect of the contractor's employees as well as on the amounts paid by the establishment firm to their workers as GWR.
(2.) The writ petition came up for preliminary hearing of the Board on October 7, 1985. Shri N.K. Jain put appearance for the respondent-Commissioner. The writ petition was admitted on August 18, 1986. On that day on the stay application, after hearing the learned counsel for the parties, the Court ordered that the Regional Provident Fund Commissioner shall proceed with the determination of the amount payable as contribution. As and when the determination is made the payment of the amount of provident fund contribution on Good Work Reward employer's contribution shall remain stayed provided that the petitioner furnishes a Bank Guarantee to the satisfaction of the Regional Provident Fund Commissioner within a period of one month of the order of determination to the effect that in the event of dismissal of the writ petition, the petitioner or the Bank shall pay the amount alongwith interest at the rate of 12% per annum. The Court has not granted any stay so far as the provident fund contribution on the amount of Good Work Reward is concerned. The respondent- Commissioner under its order dated May 5, 1986 determined the amount of provident fund contribution payable by the establishment firm under the different heads on GWR and the contract employees. On GWR the amount of contribution payable by the establishment firm was fixed at a figure of Rs. 28,53,895.00 and in respect of the Contractor's employees it was Rs. 20,41,801/-. This order has been challenged by the establishment firm by filing S.B. Civil Writ Petition No. 1112/1986. In that writ petition, the learned single Judge was not pleased to grant the interim relief against the recovery of the amount of contribution determined by the respondent-Commissioner for the Contractor's employees. The writ petition was decided by the learned single Judge on July 2, 1997 against the establishment. That judgment of the learned single Judge is under challenge in the special appeal.
(3.) Shri M.D. Agarwal, the learned counsel for the establishment contended that GWR is the overtime and thus it is not included in basic wages. He read out before us clause (b) of Section 2 of the Act, 1952. It has next been contended that though the contractor's employees are covered under the Act, 1952 but the Contractors who were working with the establishment firm were covered establishment under the Act, 1952, It is urged that for those employees the covered contractors were depositing the contribution and thus for them no liability could have been fastened on the establishment. But it has been done and it resulted in double payment of the contribution. He fairly submitted that in respect of the uncovered employees the respondent-Commissioner could have ordered for payment of contribution against the establishment firm. This aspect of the matter has not been considered by the respondent Commissioner as well as the learned single Judge.;