T.Rafeeq Ahmed v. The Regional Provident Fund
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 20.01.2016
CORAM
THE HONOURABLE Mr.JUSTICE T.S.SIVAGNANAM W.P.No.11335 of 2012 and M.P.No.1 of 2012 T.Rafeeq Ahmed .. Petitioner Vs 1.The Regional Provident Fund Commissioner II, Employees Provident Fund Organisation, Ministry of Labour, Government of India, Sub Regional Office, No.31, Filterbed Road, Vellore-632001.
2.R.Sundaramurthy Union President, North Arcot District Leather Workers Union, No.16/12, Big Kammavara St., 'A' Kaspa, Ambur-635 802.
.. Respondents [Impleaded as R2 as per order of this Court dt.20.11.15 in MP.1 of 2015] Writ petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records ending with the order No.TN/VL/PGHS/EPFIGMS/ 2011-12 dated 23.2.2012 passed by the respondent commissioner and quash the same.
For Petitioner : Mr.S.Dayaleshwaran For Respondents : Mr.K.Gunasekar for R1 Ms.S.Thamizharasi for R2
O R D E R
Heard Mr.S.Dayaleshwaran, learned counsel for the petitioner; Mr.K.Gunasekar, learned Senior Counsel appearing for the Regional Provident Fund Commissioner- respondent organisation and Ms.Thamizharasi, learned counsel appearing for the 2nd respondent-Workers Union.
2. This Writ Petition has been filed challenging the order passed by the 1st respondent dated 23.02.2012, in exercise of its power conferred under Section 26[B] of the Employees Provident Fund Scheme, 1952 [hereinafter referred to as the Scheme].
3. Though elaborated submissions has been advanced by the learned counsel for the petitioner as well as the learned counsel appearing for the respondents, the dispute in the instant case lies in a narrow campus. The petitioner challenges the correctness of the findings recorded by the 1st respondent in the impugned order. The matter relates to the claim for gratuity. In fact, it is not the claim for the entire gratuity, but claim for gratuity for a period which was not reckoned while computing total length of service.
4. According to the Workers Union, who had represented the erstwhile workmen, the date on which the applications for Provident Fund have been submitted contained the date of joining as in the year 1981 or 1982 respectively and this date was given without reference to the date mentioned in the time card. The industrial establishment where the workmen were working was closed down and the partnership business has been dissolved, entire assets have been sold and all the workmen were settled, pursuant to the settlement entered into under Section 18[1] of the Industrial Disputes Act, 1946 dated 25.04.2003. Copy of the said settlement deed has been filed in the typed set of papers, from which it is seen that the settlement was entered into between the management of the Company and the workmen represented by the 3rd respondent union.
On the day when the settlement was arrived at, the partnership business appears to have been dissolved and one Hafeezur Rahman has been shown as the Proprietor of the concern. However, in the instant case, the claim made by the workmen is for payment of gratuity for an earlier period when admittedly the petitioner was in management.
5. The issue would be as to whether the date reckoned by the authority for computing the total length of service by taking the date mentioned in the time card was proper and justified ? When the statutory form viz., Form No.19 mentioned a different date, the workmen, through their union, filed a petition under Clause 26[B] of the Scheme, and the question arose as to from what date they are entitled or required to become a member under the Scheme, though those applications were said to have been filed after a period of seven years, the workmen have set out the reasons by referring to the settlement which was agreed in the year 2003 and contending that while effecting the settlement and even earlier, the date mentioned in the time card alone was
reckoned as the date of entry into service for computation of the total length of service and there cannot be any other date, only for being entitled for the benefits under the Provident Fund Scheme.
6. The 1st respondent entertained the petition, issued notice to the Management and after hearing the Management and the Workers Union, considered the oral evidence and also taking on record the documents, clearly held that the dates mentioned in the time card alone would be the relevant date for the purpose of calculation of benefit of gratuity.
7. On a perusal of the impugned order, it is seen that the petitioner has received notices, had been represented by an authorised representative and therefore, there can be no complaint of violation of principles of natural justice and it is seen that the petitioner has been afforded full and effective opportunity. That apart, the reasons assigned by the 1st respondent are cogent and proper. The law on the subject has been clearly set out, understood and the factual aspect has been analysed and the date, which was adopted while effecting settlement of dues, all other dues, was rightly taken, for the purpose of determining the date from which the benefit should be sanctioned.
8. Thus, in the absence of any perversity or arbitrariness in the approach of the 1st respondent or in the absence of any illegality, this Court while exercising its jurisdiction under Article 226 of the Constitution of India will not examine the correctness of the impugned order as if it is the 2nd Appellate Court. Thus the petitioner has not made out any ground to interfere with the impugned order.
In the result, the Writ Petition fails and stands dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
Sd/- Assistant Registrar(CS V) //True Copy// Sub Assistant Registrar gya
To The Regional Provident Fund Commissioner II, Employees Provident Fund Organisation, Ministry of Labour, Government of India, Sub Regional Office, No.31, Filterbed Road, Vellore-632001.
+1cc to M/S.S.Thamizharasi, Advocate, S.R.No.3247 +1cc to Mr.K.Gunasekar, Advocate, S.R.No.3652 W.P.No.11335 of 2012 sv(CO) srg(02/02/2016)