Epf & Writ Petition - Pdf Download

My friend is a construction contractor and currently holding a work order dated May 2014 to complete a construction work of two floors from a construction company. For this work order, he had submitted the quotation in the month of January 2014.

He had quoted the labor rates without considering provident fund applicability to site workers/casual labors; this was done in view of the stay order granted by the High Court on 8th September 1997 against the applicability of the provisions of the amended para 26 (ii) of the Employees Provident Fund Schemes 1952 to the temporary and casual construction site workers as per the writ petition no. 2593/1997 filed by Builders Association of India.

On 28/08/2014 in the case of Builders Association Of India v/s Union Of India, Delhi High Court has given a judgment and has made Provident fund scheme applicable to temporary and casual site workers.

Now, this construction company is withholding the payments of the contractor stating that he has to register under EPF Act and then only they will release 20% of his labor payments. But the contractor has not been engaging laborers more than 20, and the EPF Act is not applicable to him.

Questions:

1. Whether the construction company's stand is correct to withhold the labor payments of the work order which is dated before this new judgment of the High Court?

2. Can the contractor get his 20% withheld money back by stating that the PF is not applicable to this work order now because the labor rates and work order were decided previous to this judgment?

Dear N Saroj,

I read your post carefully and completely. I read the entire matter of Builders Association of India v/s Union of India, Delhi High Court which was decided in August 2014.

You are a new member on this forum and you are representing your friend who is in building construction contracting. You have not mentioned the place of work of construction by your friend. From your profile, I could gather that you are a consultant from Pune, Maharashtra.

You have mentioned in your thread the matter of Builders Association of India (writ petition no. 2593/1997) HC Mumbai: Nagpur Bench, but neither you nor your friend has an update on it. This matter was decided in February 2006, vacating the stay order stated by you against the writ petitioners.

The matter between Builders Association of India v/s Union of India, Delhi High Court which was decided in August 2014, the judgment states that the action initiated by the respondents against the petitioners under the provisions of the Act is liable to be continued in accordance with the law.

Under the circumstances, my answers to your questions are as follows:

The stand of the construction company, i.e., PE, is very much correct in withholding the bills of your friend irrespective of the date of the work order.

The contractor, i.e., your friend, cannot take any stand but to comply with the law. You cannot say that the PF Law is not applicable to your/your friend's work order. You cannot say that the labor rates and work order were decided previous to the judgment of Delhi HC even if the work of you/your friend is being carried out in Delhi.

I need not say at least to you that ignorance of the law is no excuse. You said that the rates were quoted in light of writ petition no. 2593/1997 which was decided long back.

1. Sir(s), the copy of judgment of the honourable High Court as mentioned by the initiator of this thread has not been enclosed to examine the issue.

2. It is also not mentioned in the remarks whether the petitioner Builder Association of India has filed any appeal in the honourable Supreme Court of India or not. If so, what is the order of the honourable Supreme Court of India has not been mentioned.

3. Further, I personally feel that in such issues where the matters are being contested in the Higher Courts like High Court/Supreme Court, the seniors or experts have no scope of recording their opinion since the matter is examined in detail by the honourable Courts. So far as I understand, no court will ever pronounce any judgment against the law enacted by the legislature (in this case EPF & MP Act, 1952 as reported) until and unless the law under consideration is not challenged as violative of any provisions of the Constitution of India. If no appeal has been filed in the honourable Supreme Court of India, the compliance of the order of the honourable High Court is required to be made to avoid the levy of any penalty, interest, or damages, etc.

Dear Harsh Kumar ji,

Please find the attachment of the judgment in Builders Association of India Vs UOI dated 28.08.2014 to examine the issue as you stated in your post.

Construction company's stance is correct even in view of Sandeep Dweller's case of Bombay High Court referring to the Apex court decision in Hariharan's case much prior to the Delhi High Court decision. The casual workers were engaged by contractors relating to the regular business of the construction company in that case, and a similar position appears here notwithstanding the contractors engaged fewer than 20 persons.

With regard to the second question, the money cannot be taken back as the matter was sub judice, and after the final decision, all liabilities determined finally are related back to the inception of the case. Even during interim orders, directions were given to implement the scheme with regard to those workers.