Contempt case full order of The Hon`ble Mr.Justice S.VAIDYANATHAN CONT P(MD) No.1225 of 2020 IN WP(MD) No.1380 of 2015              

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

( Civil Appellate Jurisdiction )

Thursday, the Twenty Seventh day of January Two Thousand and Twenty

Two

PRESENT

The Hon`ble Mr.Justice S.VAIDYANATHAN

CONT P(MD) No.1225 of 2020

IN

WP(MD) No.1380 of 2015

 

N.KANNAN       … PETITIONER/PETITINER

VS

• SHANTHI

CHIEF ENGINEER  (CONSTRUCTION AND MAINTENANCE)

HIGHWAYS DEPARTMENT AND THE

MANAGING DIRECTOR (ADDL.CHARGE)

TAMILNADU STATE CONSTRUCTION CORPORATION LTD.,

INTEGRATED CHIEF ENGINEER’S OFFICE,

HRS CAMPUS, SARDAR PATEL ROAD,     GUINDY, CHENNAI-600 005.

• K.SELVAN

CHIEF ENGINEER (HIGHWAYS)

INTEGRATED  CHIEF ENGINEER’S OFFICE

HRS CAMPUS,  SARDAL PATEL ROAD ,     GUNIDY, CHENNAI – 600005.

• SAURABH SWAMI,

THE REGIONAL PROVIDENT FUND COMMISSIONER-II,

EMPLOYEES PROVIDENT FUND ORGANIZATION,

R-40-A-1,  3RD FLOOR,  TNHB OFFICE COMPLEX      MUGAPPAIR (EAST), CHENNAI-600 037.

• SHASHIKANT DAHIYA

THE ASSISTANT PROVIDENT FUND COMMISSIONER

EPF ORGANIZATION,  SUB REIGIONAL OFFICE,

PB NO. 588,  SREE COMPLEX,’D’ BLOCK, 18  MADURAI  ROAD,     TRICHY 620 008.

 

• PRABHAKAR,

THE COMMISSIONER ,

HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS DEPARTMENT,

GOVERNMENT  OF TAMILNADU,

NO.119,  UTHAMAR GANDHI SALAI,     NUNGAMBAKKAM HIGH ROAD, CHENNAI-600 034.  6  K.SIVARAMKUMAR

THE ASSISTANT COMMISSIONER,

HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS DEPARTMENT

GOVERNMENT OF TAMILNADU,

O/O.THE ASSISTANT COMMISSIONER

SACHIDHANANDA MOOPPANAR SALAI,

THANJAVUR … CONTEMNORS/RESPONDENTS

Petition filed praying that in the circumstances stated therein and in the affidavit filed therewith the High Court may be pleased to punish the contemnors/ respondents for their willful disobedience and violation of the valuable orders passed by this Honourable High

Court made in  WP(MD).No. 1380/2015 dated 18.01.2019

Prayer in WP(MD). 1380/ 2015 :

Writ Petition  filed under Article 226 of the Constitution of India, praying this Court To issue a writ of Mandamus directing the respondents 1 to 3 to settle the petitioner’s contribution of Provident Fund Amount of Rs.60,820/- (approximately) along with employer contribution with due interest on both the items and 12% subsequent interest per annum for the inordinate and abnormal delay, to settle the amounts, till such time it is fully paid and settled.

ORDER :   This petition coming up for orders on this day, upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of Mr.ANANTH C.RAJESH, Advocate for the petitioner and of Mr.S.P.MAHARAJAN, Special Government Pleader  for respondents 1 and 2,  Mr.JOHN XAVIER,Advocate for the 3^rd Respondent and Mr.SIDDHARTHANAN,  Additional Government Pleader for the Respondents 5 & 6, the court made the following order:-

Heard Mr.Ananth C.Rajesh, learned counsel for the petitioner, Mr.S.P.Maharajan, learned Special Government Pleader appearing for respondents 1 and 2, Mr.John Xavier, learned counsel for R3, Mr.Siddharthanan, learned Additional Government Pleader for R5 & R6 and Mr.Saurabh Swami, Provident Fund Commissioner.

2. When the matter is taken up for hearing, Mr.Saurabh Swami,Provident Fund Commissioner submitted that the Hindu Religious and Charitable Endowments is not covered by the Employees Provident Fund and Misc. Provisions Act, 1952 (in short ‘the EPF Act’) and hence, their hands are tied and they are not in a position to proceed against the HR & CE Department. It is further stated that the employee has been absorbed by the HR&CE Department from Tamil Nadu State Construction Corporation (TNSCC) and the amount payable to the employee had already been paid.
3. As per the proceedings recorded in the last occasion, itwould be clear that the employee was not placed under Contributory Pension Scheme (CPS), while he was working in the HR&CE Department and TNSCC as well, thereby, Government Order referred to by the Commissioner was given a go-bye by both the employers. For example, the EPF Act, 1952, is not applicable to the any Nationalized Bank. In case, a Contractor, who is covered by the Contract Labour (R&A) Act, 1970 and was awarded a contract by the Bank has not remitted the contribution due to the employees employed by or under him, the Bank, even though exempted from EPF Act, 1952, is liable to pay the contribution in the capacity as Principal Employer and the responsibility of the Principal Employer to pay the dues of the Contractor / immediate Employer continues and the Principal Employer cannot contend that once the Act, 1952 is not applicable, it cannot be made applicable indirectly. The exemption under EPF Act, 1952 to the Principal Employer is completely different from the responsibility under the Act, 1970 and the EPF Act, 1952 applies to Bank in the capacity of the Principal Employer.
4. In the present case on hand, as HR&CE Department has given ago-bye to the Government Orders, as stated supra, and the employee was treated as a non CPS employee, naturally, the Provident Fund amount will have to be paid and the pension needs to be disbursed to him by taking into account the entire services rendered both under the TNSCC as well as the HR & CE and the Provident Fund pension needs to be extended.
5. This is a peculiar situation where the TNSCC and the HR & CEare trying to shirk from their responsibility so as to wash off their hands in the matter and the EPF Organization has got wide power, under the Act, to adjudicate and determine the amount, by taking into consideration the entire services and in the present case, the EPFO is now trying to wake up after initiation of contempt proceedings.
6. TNSCC has filed a compliance report dated 09.04.2021, enclosing copies of documents. From that, they want to elicit as if the employee had requested for return of money that has been paid and that he was already under CPS. There are seven signatures found in the letter, in which the name of the employee, viz., Kannan does not find place at all. Thus, prima facie, it appears that TNSCC has come forward with a false compliance report, which attracts the provisions of Sections 191 and 199 of IPC to be proceeded against in terms of Sections 195 r/w 340 Cr.P.C. However, before a decision is taken, an opportunity of being heard should be given to TNSCC. Though it has been stated that TNSCC, vide communication dated 05.07.2019, has made a request to the Government to comply with the orders of this Court dated 18.01.2019, by marking a copy of the order to the Additional Chief Secretary to the Government, Finance Department, there are no details available to that effect.
7. D.Sivaraman, who was appointed as an Amicus Curiae forassisting this Court, submitted that for some of the employees, who retired as early as in 2005, Provident Fund amount has not been settled and it is not known as to why there was a delay in payment of contribution to them.
8. In response to the above, Mr.Saurabh Swami, Provident FundCommissioner, who appeared-in-person through Video Conference stated that the employee has been paid the amount due to him and EPFO does not find ways and means to recover the amount from him.
9. It is apparent that the direction issued by this Court hasnot been complied with and that both the employers flouted the Law viz., EPF Act, 1952 and no Government Order can take away the right of the Provident Fund Commissioner under the EPF Act, unless the said Government Order has been implemented in letter and spirit. The Authorities under the EPF Act have got vide powers even to prosecute the violators and send the violators to the Civil Prison. It is very unfortunate that in the present case, even though orders have been passed three years ago, no enquiry has been conducted and the Minutes of Meeting, showing the participation of the employee and employers viz., HR & CE and TNSCC has been produced before this Court.
10. The Provident Fund Commissioner would submit that, if amonths’ time is granted, they will conduct enquiry, calling for the records and pass final orders by determining the amount payable to the employee by way of Provident Fund and Pension, including the applicability of the Act to HR & CE, taking note of the fact that HR&CE has not treated the employee one falling under CPS.
11. From a reading of the order of this Court, it is very clear that none of the directions contained in Paragraph Nos.10 and 11 appears to have been complied with. Moreover, there is no evidence of closing the EPF Account of the employee and bringing him under CPS. Though there is no need to give a month’s time to conduct enquiry, this Court must be cautious enough that the benefits accrued to the employee shall not be deprived and buried along with his body. There is no iota of evidence as to whether any enquiry has been conducted by EPFO, calling upon the employee, TNSCC and HR&CE to appear, record submissions, obtain their signatures and thereafter, a decision been taken.
12. It is further represented that pay commission arrears payable to the employee have been paid belatedly and in such an event, the contribution for that period has got to be deducted and remitted to the EPF Authorities and whether such action has been made or not can be ascertained only by way of conduct of enquiry, which the EPF Authorities have failed to do so. If the employer fails to remit the amount within a time frame, the amount cannot be recovered from the employee. The contribution towards employer and employee needs to be paid only by the employer. Since it is a blunder committed by the EPFO for not conducting the enquiry, for the enquiry that is going to be conducted or order to be passed by the EPFO, the transportation expenses for the employee, his counsel and the Amicus Curiae (III Class A/C Train Fare for the employee and his counsel and II Class A/C Train Fare for the Amicus Curiae) shall be borne by EPFO and others in equal proportion to enable them to appear for the enquiry at Chennai. However, it is open to the EPFO to conduct enquiry either at Chennai or at Madurai.
13. As stated supra, the Respondents have flouted the orders of the Court, more so, Paragraph Nos.10 and 11 and as on date, prima facie case has been established that there is disobedience of the orders of this Court, for which, the Court needs to pose only questions for the purpose of punishment. In case this Court holds that there is contempt, fine will be secondary and imprisonment will be primary. As all the Respondents are Officials of the Government, the punishment that may be imposed by this Court will give a strong signal to other citizens of this Country that they should not play with the Court and they must ensure that Court orders are implemented in letter and spirit. Unless Damocles sword is hanging on the head of the Officials, this Court cannot render justice, more so, speedy justice. On a perusal of the resolution of the 122^nd and 123^rd Board Meetings produced before this Court, there is no iota of evidence to show that there was a discussion for compliance of the orders of this Court. From the RTI reply dated 19.07.2016 of HR&CE, it appears that the remittance amount towards employee was over Rs.60,000/- and there is no reason as to why Rs.50,000/- and odd alone has been paid, as, by payment of another Rs.10,000/-, the illegality committed will not be justified, as it amounts to misappropriation of the employee’s amount by the respondents. For the sake of repetition, it is reiterated that the employee, for all the purposes, will have to be treated as the one coming under the EPF Act, 1952, not coming under CPS, as he was not admittedly placed under CPS either by HR&CE Department or by TNSCC. There is perfunctory approach by the EPFO in conducting the so-called enquiry.
14. This is a fit case to punish the Commissioner and other respondents under the provisions of the Contempt of Courts Act. However, the Commissioner seeks time to proceed with the enquiry, pass final orders determining the various factors referred to in this order, more so, in Paragraph Nos.10 & 11, apart from the order of this Court in W.P.(MD)No.1380 of 2015, which has not been questioned by way of Writ Appeal and to submit a detailed report before this Court. This Court is of the view that if there is a wilful and deliberate disobedience of the orders of this Court, in the light of the judgments of the Apex Court in Noorali babul Thanewala vs. K.M.M.Shetty and others, reported in 1990 (1) SCC 259t and Calcutta High Court in Hindusthan Lever Sramik Karmachari Congress vs. Ashish Chakraborty and Others, reported in 1991 Crl.L.J. 2890, this Court can issue directions after punishing the persons, who has wilfully and deliberately violated the order. Prima facie, the employee has to be treated as the one coming under the purview of EPF Act, 1952. Admittedly, EPFO had received the amount (whether full or in-part) towards EPF contribution and it is also not in dispute that the employee has not been placed under CPS, but only under the EPF Act. Therefore, it is incumbent upon the EPFO to extend the benefits as per the EPF Act.
15. It is relevant to point out here that there was also adirection to the Finance Secretary in Clause No.iv of Paragraph No.11 of the order for issuance of a suitable Government Order for grant of all service benefits, etc. Merely because the Finance

Secretary has not been added as a party respondent to the Writ Petition and this Petition, it will not absolve him from the liability in complying with the orders of this Court and if any contempt is filed, suitable orders will be passed thereon and he may have to face the consequences.

16. At this moment, learned Additional Government Pleader, appearing for HR&CE reiterated that as the employee was not included in CPS, contribution towards EPF was remitted to the Tamil Nadu State Construction Corporation, which, in turn appeared to have deposited the amount with EPFO.
17. With regard to applicability of the Government Order inG.O.Ms.No.172 and other Government Orders, the observation made in the earlier orders will have to be taken into account and a harmonious reading of the Government Orders has got to be given in the light of the order in the writ petition.

 

18. At this juncture, it is represented by all the parties thatsince the Writ Petition was heard in detail and the Contempt has been dealt with by me, the matter may be listed before me for further hearing. It is pertinent to mention here that as long as I hold the present portfolio or the matter being specially ordered by the Hon’ble Acting Chief Justice, I can take up the matter and once I leave the Portfolio, I cannot deal with the matter any more. But, at the same time, in case, if any one of the parties give a letter of request to the Registry and The Hon’ble Acting Chief Justice permits me to take up the matter, I have no hesitation in taking up the matter virtually / hybrid.
19. Though there is no need for this Court to elaborately dealwith the issue now, to give an opportunity to the counterpart and to avoid multiplicity of litigation, the above observations are made. Even if the order is complied with now, as there is a violation, EPFO and others will be liable to be punished under the Contempt of Courts Act. The question whether it is fine or imprisonment will be decided after affording opportunity to the Contemnor.
20. Taking note of the aforesaid discussions and as requestedby the Commissioner, enquiry shall be conducted and concluded within a period of 30 days from the date of receipt of a copy of this order and the enquiry may be conducted preferably on Saturdays, Sundays or during holidays in order to enable the Amicus Curiae, who is a practicing Advocate to appear before the Commissioner to assist him, as the Amicus Curiae has been appointed by this Court to assist this Court. The reason for appointment of Amicus Curiae is that EPFO, HR&CE and TNSCC have already complicated the issue and also messed up things, instead of finding ways and means to resolve it.
21. Registry is directed to list the matter on 04.2022, for further orders. Mr.D.Sivaraman, learned Counsel is expected to assist the Commissioner at the time of conducing enquiry.

sd/-

27/01/2022

/ TRUE COPY /

/  /2022

Sub-Assistant Registrar (C.S.)

Madurai Bench of Madras High Court,                                           Madurai – 625 023.

TO

• SHANTHI

CHIEF ENGINEER  (CONSTRUCTION AND MAINTENANCE)

HIGHWAYS DEPARTMENT AND THE

MANAGING DIRECTOR (ADDL.CHARGE)

TAMILNADU STATE CONSTRUCTION CORPORATION LTD.,

INTEGRATED CHIEF ENGINEER’S OFFICE,

HRS CAMPUS, SARDAR PATEL ROAD,     GUINDY, CHENNAI-600 005.

• K.SELVAN

CHIEF ENGINEER (HIGHWAYS)

INTEGRATED  CHIEF ENGINEER’S OFFICE

HRS CAMPUS,  SARDAL PATEL ROAD ,     GUNIDY, CHENNAI – 600005.

• SAURABH SWAMI,

THE REGIONAL PROVIDENT FUND COMMISSIONER-II,

EMPLOYEES PROVIDENT FUND ORGANIZATION,

R-40-A-1,  3RD FLOOR,  TNHB OFFICE COMPLEX      MUGAPPAIR (EAST), CHENNAI-600 037.

• SHASHIKANT DAHIYA

THE ASSISTANT PROVIDENT FUND COMMISSIONER

EPF ORGANIZATION,  SUB REIGIONAL OFFICE,

PB NO. 588,  SREE COMPLEX,’D’ BLOCK, 18  MADURAI  ROAD,     TRICHY 620 008.

 

• PRABHAKAR,

THE COMMISSIONER ,

HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS DEPARTMENT,

GOVERNMENT  OF TAMILNADU,

NO.119,  UTHAMAR GANDHI SALAI,     NUNGAMBAKKAM HIGH ROAD, CHENNAI-600 034.

• SIVARAMKUMAR

THE ASSISTANT COMMISSIONER,

HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS DEPARTMENT

GOVERNMENT OF TAMILNADU,

O/O.THE ASSISTANT COMMISSIONER

SACHIDHANANDA MOOPPANAR SALAI,     THANJAVUR.

• D.SIVARAMAN,

ADVOCATE,     MADURAI BENCH OF MADRAS HIGH COURT, MADURAI.

ORDER IN

CONT P(MD) No.1225 of 2020

IN

WP(MD) No.1380 of 2015

Date  :27/01/2022

mpk/ar

MK/VR/SAR.I/09.02.2022/8P/8C