TMI Blog2018 (9) TMI 2045X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Government and to the extent of 49% is that of the ONGC. The affairs of the Respondent No.1 are regulated and controlled by its Memorandum and Articles of Association. The affairs of the Respondent No.1 are managed by the Board of Directors and that the Board of Directors functions independently and not at the behest or directions or control of the Central Government - It is questionable whether the Respondent No.1 would classify as an airline owned or controlled by the Central Government. In the matter of application of the PF Act which is undoubtedly a social welfare legislation, a liberal interpretation is required to be adopted so as not to deprive the benefit of the said social welfare legislation to the employees like the members of the Petitioner Union. Since Section 16(1)(b) excludes an employee who has the benefit of a Provident Fund Scheme whose terms and conditions are not less favourable than the one available under the PF Act. The contract employees of the Respondent No.1 cannot be denied the benefits of the Provident Fund on both counts i.e. on the ground that they are ineligible as they are the employees of the airline controlled by the Central Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % and the balance 49% is held by Oil and Natural Gas Corporation. The Respondent No.1 in that sense is a Central Public Sector undertaking registered under the Companies Act 1956. Since the majority of the shareholding is that of the Government of India, Central Government can be stated to have stake in the affairs of the Respondent No.1. The Respondent No.1 was incorporated with the primary objective of providing helicopter support services to the oil sector for its off shore exploration operations, services in remote and hilly areas and charter services for promotion of tourism. The Respondent No.1 has a total work force of 840 employees working in the Western and Eastern Region. Out of the said 840 employees, 570 employees have issued appointment letters on regular basis and 270 employees are appointed on contract basis. Out of the said 270 employees who are employed on contract basis, 139 employees are members of the Petitioner union and all are working in the Western and Eastern Region. 4 In so far as the Provident Fund is concerned, the Respondent No.1 has framed rules and has instituted the Pawan Hans Employees Provident Fund Trust Regulations for the benefit of employees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ident Fund Scheme under the Regulations. This was in the teeth of the fact that the definition of an employee under the PF Act is wide so as to cover even the employees who were engaged on contract basis. It is on account of the denial of Provident Fund to the employees of the Respondent No.1 who were appointed on contract basis that the case for filing the above Petition has arisen. 5 Submissions on behalf of the Petitioner by the Learned Counsel Mr. S. C. Naidu (i) That there is a failure on the part of the Respondent Nos.2 and 3 in enforcing the provisions of the PF Act in respect of the employees who have been working for years together and have been shown as contract workmen. (ii) That the Respondent No.1 is an establishment which has been notified by the Central Government and as per the provisions of the Provident Funds Act, and is required to extend coverage under the said Act to 270 workmen which include the members of the Petitioner Union. (iii) That the objection of the Respondent No.1 that the Notification dated 22 3 2001 does not apply to the Respondent No.1 is misconceived and misfounded. (iv) That the Respondent No.1 is not controlled by the Central Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anager (HR Admin) of the Respondent No.1. 6 Submissions on behalf of the Respondent No.1 by the Learned Counsel Mr. Abhay Kulkarni (i) That the Petitioner itself has admitted in the above Petition that the Central Government has control over the affairs of the Respondent No.1 in view of the fact that the majority shareholding is of the Government of India and hence the Respondent No.1 is an airline owned or controlled by the Central Government. (ii) In view of the fact that the Respondent No.1 is an airline owned or controlled by the Central Government the Notification dated 22 3 2001 is issued under Sub Section 3(b) of Section 1 of the PF Act, would have no application in so far as the Respondent No.1 is concerned as the airline owned or controlled by the Central or State Government are specifically excluded from the application of the said notification. (iii) That the Provident Fund Scheme which is in existence in the Respondent No.1 would not be applicable to the members of the Petitioner Union as they are admittedly contract workmen and therefore not covered by the said scheme. (iv) That the judgment of the Apex Court in Hindustan Steel Works Construction Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule framed by the Central Government or the State Government governing such benefits; or (c) to any other establishment set up under any Central, Provincial or State Act and whose employees are entitled to the benefits of contributory provident fund or old age pension in accordance with any scheme or rule framed under that Act governing such benefits; (2) If the Central Government is of opinion that having regard to the financial position of any class of [establishments] or other circumstances of the case, it is necessary or expedient so to do, it may, by notification in the Official Gazette, and subject to such conditions as may be specified in the notification, exempt [whether prospectively or retrospectively,] that class of [establishments] from the operation of this Act for such period as may be specified in the notification. [17. Power to exempt.- (1) The appropriate Government may, by notification in the Official Gazette, and subject to such conditions as may be specified in the notification, [exempt, whether prospectively or retrospectively, from the operation] of all or any of the provisions of any Scheme- (a) any [establishment] to which this Act applies i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to the benefit of a contributory Provident Fund or old age pension in accordance with the scheme. An establishment can be exempted by the appropriate Government if the employees of the said establishment are in enjoyment of a Provident Fund Scheme which is not less favourable than the one under the PF Act. Since much store has been laid by the Respondent No.1 on the Notification dated 22 3 2001, it would be necessary at this stage to refer to the said Notification. The said Notification is reproduced hereinunder for the sake of ready reference: S.O. 746 In exercise of the powers conferred by clause (b) of section (3) of Section 1 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), the Central Government hereby specifies the following establishments employing 20 or more persons as the class of establishments to which the said Act shall apply with effect from 1st April 2001, namely: (i) an establishment engaged in rendering courier services; (ii) an establishment of aircraft or airlines other than the aircraft or airlines owned or controlled by the Central or State Government. (iii) as establishment engaged in renderin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Government directed the Provident Fund Commissioner to instruct the Regional Provident Fund Commissioner to carefully review the cases of the departmental undertakings and statutory bodies which fall in the category specified in Section 16(1)(b) and Section 16(1)(c) and to take further action as indicated in the said letter. In the context of the present Petition clause (4) of the action that could be taken is relevant. The said clause is therefore reproduced hereinunder for the sake for ready reference: (iv) There may be establishments which employ large member of casual / contingent staff, who are not entitled to the benefit of provident fund or pension. The casual / contingent staff of such establishment will continue to be covered under the Act, but their regular employees who are entitled to the benefit of provident fund or pension should be excluded from the purview of the Act. 11 Another letter which assumes importance is the letter dated 24 5 2017 addressed by the Regional Provident Fund Commissioner, Bandra to the Joint General Manager (HR and Admin) of the Respondent No.1. The said letter was addressed in the context of the Employees Enrolment Campaign2017 laun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f one of the members of the Petitioner Union one Mr. M Elangovan, indicates that the said member is being paid directly by the Respondent No.1 and therefore the employees of the Respondent No.1 who are engaged on contract basis since last 20 years can be said to be covered by the definition of employee and would therefore be entitled to the benefits of the scheme. However, they are sought to be denied the benefit of the scheme under the Trust Regulations on the ground that they are contract employees. 15 In our view, since Section 16(1)(b) excludes an employee who has the benefit of a Provident Fund Scheme whose terms and conditions are not less favourable than the one available under the PF Act. The contract employees of the Respondent No.1 cannot be denied the benefits of the Provident Fund on both counts i.e. on the ground that they are ineligible as they are the employees of the airline controlled by the Central Government and to the benefits of the Scheme under the Trust Regulations on the ground that they are contract employees. In our view, such an interpretation would result in gross injustice to the members of the Petitioner Union and other similarly situated as them wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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