IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 OP.No. 28603 of 2002(E) --------------------------------- PETITIONER: ------------------ M/S.M.M.COMBINES, KOTTAMUKKU, KOLLAM, REPRESENTED BY ITS PARTNER, SUJTIH.S. BY ADV. MR.K.SUBASH CHANDRA BOSE MR.A.PRAVEEN RESPONDENTS: ---------------------- 1. THE REGIONAL PROVIDENT FUND COMMISSIONER - I, EMPLOYEES' PROVIDENT FUND ORGANISATION, (MINISTRY OF LABOUR. GOVT. OF INDIA) REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. THE ASSISTANT PROVIDENT FUND COMMISSIONER, -DO- 3. DHANYA, CONSUMERS PVT., LTD., MAIN ROAD KOLLAM - 601001. R1 AND R2 BY ADV. MR.N.N. SUGUNAPALAN, STANDING COUNSEL, P.F THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 16/02/2009, THE COURT ON 19/02/2009 DELIVERED THE FOLLOWING: C.K. ABDUL REHIM, J. ~~~~~~~~~~~~~~~~~~~~~~ O.P. No. 28603 OF 2002 ~~~~~~~~~~~~~~~~~~~~~~ Dated this the 19th day of February, 2009 JUDGMENT The challenge in the writ petition is against Exhibit P16 order, by which a review petition filed under Section 7B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (herein after called the Act for short) was dismissed. The petitioner had earlier approached this court challenging the order passed under Section 7A of the Act. The brief facts are as follows. On the basis of a coverage proposal submitted by the officials, pursuant to an inspection conducted at the premises of the petitioner and the third respondent, the third respondent was requested to cover 17 employees directly engaged by them as well as 6 employees engaged by the petitioner on contract basis for and on behalf of the third respondent, under the Scheme. The third respondent challenged the proposal under Section 19 A of the Act. But it is noticed that they were relegated to the PF Commissioner directing to corporate to facilitate the assessment of dues. The contention of the petitioner is that when the Provident Fund Authorities made an attempt to club the employees of the petitioner with that of employees of the third respondent, the O.P. No. 28603 of 2002 : 2 : petitioner objected to the same by submitting various representations. But Ext.P10 communication was issued holding that petitioner is liable to remit employees' and employers' contributions with respect to the workers engaged by them for and on behalf of the third respondent. Further, the petitioner was served with Ext.P13 demand notice for payment of the contributions. At this stage, the petitioner filed the earlier writ petition, O.P. No. 147 of 1998, challenging the determination order whereby they were fetched with liability under Section 7 A of the Act. The contention was that the employees engaged by the petitioner for doing packing works also for other firms, cannot be considered as employees of the third respondent alone. However, the above original petition was not pursued on merits. On the basis of the submission of the petitioner that they are intending to file a review petition under Section 7 B against the impugned order, the writ petition was disposed of through Ext.P15 judgment, directing the petitioner to file review petition within 2 weeks and further directing the first respondent to consider the review petition, treating the same as one filed without delay. 2. Ext.P16 is the order passed by the first respondent in the review petition, pursuant to Ext.P15 judgment. In the review petition the petitioner could not produce any documents O.P. No. 28603 of 2002 : 3 : in support of their claim. The question which was mainly adjudicated is as to whether the employees of the petitioner who were working for third respondent are liable to be enrolled as members of Employees Provident Fund, covered under the third respondent. It is specifically pointed out by the first respondent that by virtue of the order of determination issued under Section 7 A, no attempt was made to club the petitioner and the third respondent in the matter of coverage. It is made clear that employees of petitioner can do work for others also, which is not prevented under any statue. But, while issuing the order under Section 7 A for the specific period, the authority took a view that as long as the employees of petitioner are engaged for doing the work of third respondent such employees have to be enrolled as members of E.P.F and recovery of E.P.F contributions have to be effected and remitted to the E.P.F organization, along with the contributions of the employees directly employed by the third respondent. In other words, the authority found the employees on the rolls of the third respondent are direct employees of third respondent themselves and the employees whose service are utilised through the petitioner will be treated as contract employees of the third respondent. In this regard while dismissing the review petition the first respondent also took note of the findings arrived by O.P. No. 28603 of 2002 : 4 : the tribunal, on the petition filed under Section 19 A by the third respondent, which reads as follows: “The disputed fact is that M/s M.M. Combines whether worked solely for the petitioners or they do work for others also. One Shri. Manoj, Partner of M/s M.M. Combines examined himself before the Regional P.F. Commissioner. He admitted that the 7 workers are mainly doing the work of M/s Dhanya Consumers (P) Ltd and they are not technically qualified. He further stated that the firm utilised their workers for other work also but not paying extra wages for the same. This witness was cross examined by the petitioner. In cross examination he stated that he is paying extra salary to the workers for any work extracted from them in respect of other companies. There is no evidence to show that M/s M.M. Combines did any job or others also.” Along with the counter affidavit filed by the first respondent, Ext. R1 (a) agreement was produced. By virtue of Ext.R1(a), it is evident that the petitioner was doing cleaning and packing work for and on behalf of the third respondent on contract basis. 3. The standing counsel appearing for the respondent 1 and 2 had drawn my attention to the definition of employee in Section 2 (f) of the Act, which includes any person O.P. No. 28603 of 2002 : 5 : “employed by or through a contractor in or in connection with the work of the establishment”. Taking note of the definition of the employee and taking note of the finding arrived by the tribunal, the first respondent in Ext.P16 held that the petitioner was not successful in maintaining the review petition with any new materials or facts. 4. Pointing out to the provisions of Section 7 B, the first respondent found that the review petition from an order of determination passed under Section 7 A is maintainable only if the petitioner is able to prove that there was discovery of some new important matter of evidence, which after the exercise of due diligence was not within the knowledge or could not be produced by him at the time when order was passed or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, the order passed is liable to be reviewed. It was observed in Ext.P16 order that the review petition does not contain any new facts or materials and that the review petitioner could not able to produce any new evidence on record warranting reconsideration of the order passed earlier. 5. The disputed question regarding the liability is mainly that of a question of fact as to whether the employees of the petitioner were engaged on contract basis for an on behalf of the O.P. No. 28603 of 2002 : 6 : third respondent. On the basis of the inspection report and other materials available, the authority found that the these employees were being engaged by the petitioner for doing works for and on behalf of the third respondent. The petitioner had not challenged the finding entered by the authority in the order issued under Section 7 A in any statutory appeal. He was also not successful in producing any convincing materials or evidence to contradict the findings, in the review petition. The challenge with respect to the disputed facts could not be entertained and adjudicated upon by this Court in this proceeding instituted under Article 226. I do not find any illegality, irregularity or impropriety with respect to Ext.P16 order, impugned in this original petition. Hence, Ext.P16 warrants no interference. In the result, the original petition is dismissed. C.K. ABDUL REHIM, JUDGE kmd