*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY + Writ Petition Nos.11107/2009, 6536, 6557, 6558 & 6567 of 2011 COMMON JUDGMENT: %30-03-2011 # M/s Mallikarjuna Transport & another ..petitioners And $ The Singareni Collieries Company Limited & others ..Respondents !Counsel for the petitioners : Sri V. Ravi Kiran Rao ^Counsel for respondents : Sri Deepak Battachargee, SC for Coal Mines Provident Fund Sri Nandigam Krishna Rao, SC for Singareni Collieries Co. Ltd. < Gist: > Head Note: Citations: THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition Nos.11107/2009, 6536, 6557, 6558 & 6567 of 2011 COMMON JUDGMENT: In this batch of writ petitions, common question arises for consideration. Hence, they are disposed of, through a common judgment. The petitioner in W.P.No.11107 of 2009 is M/s Mallikarjuna Transport, and in all other writ petitions, it is Sri Srinivasa Transport. The petitioners were assigned the contract by M/s Singareni Collieries Company Ltd., (for short ‘the Company’) for transporting of coal from an Incline to the dumping units, for different periods. In every contract, the particulars as to lead, Kilometers, approximate quantity of coal to be transported, the rate per tonne for each of the destinations, and, ultimately, the total value of the contract are furnished. It is also stipulated that, it shall be the obligation of the contractor to engage machines or trucks, workmen, and to make contributions under different enactments. The Company made deductions of different kinds from the bills payable to the petitioners. One such deduction is the contribution to Coal Mines Provident Fund (for short ‘CMPF’), at 10.5/6% of the bill. The petitioners challenge this deduction, on the ground that most of the workers engaged by them are on daily or weekly wage basis; none of them are members of the CMPF, and that there is no basis for it. It is stated that the necessity to make deduction of contribution would arise, only when an employee of the petitioners has become a member of the CMPF, and contribution must be credited to the account of the employee. The petitioners submit that there is absolutely no basis for making deduction for such huge amounts, from time to time. The Company filed a counter-affidavit. It is stated that the deduction is being made, as required under Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948 (for short ‘the Act’), and the petitioners cannot escape from the statutory liability. It is also stated that a Scheme was framed in the year 1948, and the details thereof are mentioned. It is stated that the Commissioner of Coal Mines Provident Fund, which is a party in the writ petitions, has to decide such issues, and that the petitioners cannot avoid their obligation to make contribution. Sri V. Ravi Kiran Rao, learned counsel for the petitioners advanced arguments on behalf of the petitioners. He submits that the activity undertaken by the petitioners cannot be treated as the one, in the ‘coal mine’, much less, the workers engaged by them are covered by the definition under Section 2(b) of the Act. Learned counsel submits that, in exercise of power under the Act, a scheme was framed by the Central Government, providing for constitution of a fund, for the benefit of the coal mines employees, and a Trust, to operate it. After referring to the relevant provisions, learned counsel submits that, it is only when an employee becomes the member of the CMPF, that the obligation would arise, either for the principal employer, i.e. the Company, or the Contractor, to make the contribution. He has also placed reliance upon the judgment of the Supreme Court to contend that a transport contractor cannot be treated as an employer, much less his activity, as that of a coal mine. Sri Deepak Battachargee, learned Standing Counsel for the Coal Mines Provident Fund and Sri Nandigama Krishna Rao, learned Standing Counsel for the Singareni Collieries, on the other hand, submit that the work entrusted to the petitioners is very much an activity pertaining to coal mine, and that the employees engaged in it are covered by the provisions of the Act. According to them, once the deduction of the contribution is effected, it would be extended to the persons for whose benefit it was deducted, at a later point of time. The Act was brought into existence for the benefit of the workers in the coal mines. In exercise of power under the Act, the Central Government framed the Coal Mines provident Fund, Family Pension, and a Trust, to operate the same. The salient features of the Scheme are that, the employees, who are engaged in the coal mines, are to be made members of the CMPF, and are issued cards, apart from being assigned numbers. That in turn create obligation on the part of the employee and the employer to make contribution to the fund. The benefits arising out of the fund in favour of the members are also enlisted. The allotment of account numbers, issuance of cards, the renewal thereof, etc., are provided for under Clauses 39, 40, 41 and 42 of the Scheme. The membership in the fund is coextensive with the employment in the coal mines. It is not in dispute that the petitioners are assigned the work of transporting coal, which is already extracted from the mines. A serious doubt arises, as to whether the activity assigned to them can be treated as the one, in ‘coal mine’. The definition of ‘coal mine’, under Section 2 (b) takes in its fold, vast number of activities enlisted from Clause (i) to (xiii). In these writ petitions, it is not necessary to make a final pronouncement, as to whether the transport activity of coal falls within that definition. Even where an activity is referable to a ‘coal mine’, the necessity for an employer to make contribution to the CMPF arises, only when an employee is made a member of the fund. The parameters for an employee to become a member of the fund are stipulated under the Scheme. Nowhere in the correspondence between the parties, it is evident that any effort was made by the respondents, to ascertain these facts. The contributions are being deducted, just on the basis of the number of workers, that are supposed to be engaged. It is only when such worker is made the member of the fund, that a meaningful contribution can be made. If deduction is made, without the worker being the member of the fund, it amounts to an illegal collection, if not undue enrichment on the part of the respondents. The Act does not contemplate the deductions being made, even where, neither account numbers are assigned, nor membership cards are issued to the employees. As and when a responsible officer undertakes such an exercise, the question, as to whether the activity being undertaken amounts to that of a coal mine; can also be examined. It would be premature for this Court to make any pronouncement on such questions. Hence, the writ petitions are disposed of, directing that, a) the Regional Commissioner or any Officer authorized by him shall first issue a notice to the petitioners to decide whether the activity undertaken by the petitioners comes within the definition of Coal Mine. It shall be open to the petitioners to submit explanation; b) in the event of the activity being declared as the one in coal mine, the employees shall be enrolled as members, subject to their fulfillment of the prescribed conditions, the respondents shall assign account numbers and issue cards; and the deductions shall be made with reference to the account numbers and cards so issued, periodically; c) till such time, no deductions shall be made, but if it is held that the petitioners are liable, at a later point of time, they shall be under obligation to pay the arrears also; d) the amount deducted from the petitioners, so far, shall be kept in FDRs and the manner in which it shall be utilized shall be decided, depending upon the outcome of the exercise undertaken above; and e) the authority of the coal mines provident fund shall ensure that it does not deduct any amount, without reference to a particular employee, who is admitted to the provident fund. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.30-03-2011. Note: L.R copy to be marked. (B/O) KO