The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.19688 of 2021 In the matter of an application under Articles 226 & 227 of the Constitution of India ……………… OUAT Workers Union …. Petitioner -versus- Union of India & Others …. Opposite Parties For Petitioner :M/s. L. Pangari, Sr.Advocate For Opp. Parties :M/s. P.K. Parhi, D.S.G.I (for Opp. Party No.1) M/s. A. Pal, Adv. (for Opp. Party Nos.2 & 3) M/s. P.K. Mohanty, Adv. (for Opp. Party No.4) M/s. S.S. Mohanty, Adv. (Opp. Party No.5) M/s. M.K. Balabantaray, AGA (for Opp. Party Nos.6 & 7) PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 09.05.2023 and Date of Judgment: 27.06.2023 -------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. This Writ Petition has been filed by the OUAT Workers Union inter alia with a direction on the Opp. Parties to implement the provisions of ESI and EPF Scheme for the // 2 // workman working under OUAT from the date of their entitlement. 2. It is the case of the Petitioner that even though around 400 DLR/NMR/Casual employees are working under OUAT for the last 20 years, but when no step was taken to extend the benefit of ESI and EPF in favour of such DLR/NMR/Casual employees, the Union submitted a 8 point Charter of Demands before the Vice Chancellor, Orissa University of Agriculture and Technology (OUAT) on 28.12.2016 under Annexure-1. In the said Charter of Demands available at Annexure-1, the Union in Paragraph 7 of the same makes the following demand: <7. That, the management should introduce EPF & ESI Scheme to all the above workmen according to the EPF & ESI Act.= 2.1. It is contended that on receipt of the Charter of Demands available at Annexure-1, Opp. Party No.4 vide his letter dt.18.09.2017 under Annexure-2 requested Opp. Party No.2 to implement the provisions of ESI Scheme for the workmen working under OUAT and to provide the compliance. Similarly, vide letter dt.20.09.2017 under Annexure-3, Opp. Party No.5 requested Opp. Party No.3 to implement the provisions of EPF Scheme in favour of workmen working under OUAT. It was clearly indicated in Page 2 of 23 // 3 // the said letter that non-enrolment of employees of the Union as PF members is contrary to the provisions of EPF & MP Act, 1952. 2.2. It is contended that on receipt of the communications issued by the ESI and EPF authority under Annexures-2 & 3, Opp. Party No.3 vide her letter dt.10.04.2018 requested the Dean/Principal, OUAT to indicate the financial implication for extending the benefit of ESI and EPF in favour of the NMR/DLR/ Casual employees working under the OUAT. On the face of such communications issued under Annexures-2 to 4, when no action was taken by the University in registering the establishment under the provisions of EPF Act, Opp. Party No.5 once again vide letter dt.25.04.2018 under Annexure-5 requested Opp. Party No.3 to take immediate step for enrolment of the workmen under the provisions of EPF & MP Act, 1952. 2.3. On receipt of Annexure-5, Opp. Party No.3 once again requested the authorities of OUAT to furnish the names and number of casual labourers working under their control. Not only that, when OUAT did not take any action to extend the benefit of ESI & EPF in favour of the workmen, a conciliation was taken up by the Conciliation Officer-cum- Page 3 of 23 // 4 // District Labour Officer, Khurda at Bhubaneswar. In the said conciliation proceeding, the management of OUAT as reflected in Annexure-7 also agreed to cover all the DLR/NMR workers under the provisions of EPF and ESI Scheme within a period of one month. 2.4. It is contended that in spite of the undertaking given before the Conciliation Officer-cum-District Labour Officer, when no action was taken by the University to extend the benefit of EPF & ESI, Opp. Party No.5 once again vide letter dt.14.12.2018 under Annexure-8 requested Opp. Party No.3 to enroll the workmen under the provisions of EPF & MP Act, 1952 or else suitable action will be taken in the matter. 2.5. As in the meantime, Government in the Department of EPF & ESI vide letter dt. 23.05.2019 requested the Opp. Party Nos.4 & 5 to clarify regarding coverage of EPF & ESI Scheme to the workers engaged under OUAT under Annexure-9, Opp. Party No.5 vide letter dt.30.05.2019 under Annexure-10 clearly indicated that employees working under OUAT are entitled to be covered under the provisions of EPF & ESI Act in terms of the notification issued by the Government on 25.08.2011. Similarly, vide letter dt.03.06.2019 under Annexure-11, Opp. Page 4 of 23 // 5 // Party No.4 also indicated the coverage of the employees of OUAT under the provisions of EPF & ESI Scheme. In spite of issuance of such clarification by the Government, when no action was taken to include the workmen under the provisions of EPF & MP Act, Opp. Party No.4 vide letter dt.08.07.2019 under Annexure-12 requested the Opp. Party No.2 to take immediate action to enroll the workmen working in OUAT under the provisions of EPF & MP Act, 1952. 2.6.
Legal Reasoning
though there is no dispute that NMR/DLR/Casual workmen working under OUAT are eligible for their coverage under the provisions of EPF & ESI Act, but Opp. Party Nos.2 & 3 are sitting over the matter and not taking any decision to extend the benefit. It is contended that since Opp. Party No.6 vide letter issued under Annexures-14 & 15 has clearly held that the casual Labourers engaged in OUAT are liable for their coverage under the provisions of EPF & ESI Act, the authorities of OUAT have no other option than to extend the benefit. However, on the face of all the communications Page 7 of 23 // 8 // available under Annexures-2 to 19, the workmen are yet to get the benefit of EPF & ESI Scheme. 3. Mr. A. Pal, learned counsel appearing for the Opp. Party Nos.2 & 3 on the other hand made his submission basing on the stand taken in the counter affidavit so filed by the OUAT. 3.1. It is contended that EPF & ESI Act is not applicable to the casual labourers working under the OUAT as they are all seasonal Agricultural workers engaged as per the requirement. It is also contended that Industrial Dispute Act, 1947 is not applicable to OUAT as OUAT is not an industry. It was also contended that OUAT is an University involved in the teaching research and extension of education in the field of agriculture and allied subjects. It is also contended that casual labourers are hired by the Project Iinvestigator and most of the employer so hired are seasonal in nature based on the commodities and requirement of the Projects. It is also contended that Project Investigators are the authorities to hire such manpower and they are under the administrative control of different Deans/Directors. The casual labourers so hired by the Project Investigators do not have any fixed number and they differ from season to season and from year to year as per agricultural operations. Page 8 of 23 // 9 // 3.2. It is also contended that payments of wages to those casual labourers are made from the contingency head of the concerned research Project. Since the casual labourers are working under the Project Investigators and not by the Registrar or Vice Chancellor, they can not be treated as employees working under OUAT. It is contended that as provided under Section 16 of the EPF/MP Act, 1952 the provisions of the said Act applies to every establishment which is a factory engaged in any industry specified in Schedule-I and in which twenty or more persons are employed, and to any other establishment employing 20 or more persons or class of such establishments which the Central Govt. may, by notification in the official Gazette specify in this behalf. It is however contended that Section 16 of the EPF and MP Act does not apply to certain establishment. The exception given to Section 16 is applicable to any other establishment belonging to or under the control of the Central Government or a State Government and whose employees are entitled to the benefit of contributory Provident Fund or Old age pension in accordance with any scheme or rule framed by the Central Government or the State Government governing such benefits. It is accordingly contended that in absence of Page 9 of 23 // 10 // specific notification issued by the Central Government to include OUAT, with regard to applicability of the provisions of the Act, OUAT is not covered under the provisions of EPF & MP Act, 1952. 3.3. Regarding applicability of the provisions of ESI Act, Mr. Pal contended that as per Section 1(4) & (5) of the Act, it shall apply, in the first instance, to all factories including factories belonging to the Government other than seasonal factories. It is accordingly contended that there has to be specific notification by the State Government to include OUAT for the applicability of the provisions of ESI Act. Since there is no such notification bringing OUAT within the ambit of ESI Act, the prayer made by the Petitioners’ Union to extend the benefit of ESI Act to the casual laborers does not arise. It is also contended that vide letter dt.26.11.2022 under Annexure-A/2 to the counter, Government-Opp. Party No.6 has been moved to give its opinion in the matter of implementation of EPF and ESI in respect of casual workers working in different agriculture and allied research projects under OUAT and no such clarification has yet been issued by Opp. Party No.6. Page 10 of 23 // 11 // 4. To the aforesaid submission of Mr. Pal, Mr. Pangari, learned Senior Counsel contended that as per the provisions contained under Section 2(f) of the EPF and MP Act, DLR/NMR/Casual employees are employees coming under the establishment of Opp. Party No.2. Section 2(f) of the EPF & MP Act, 1952 reads as follows: 8employee9 means any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of )an establishment) and who gets his wages directly or indirectly from the employer, and include any6 persons- Employed by or through a contractor in or in connection with the work of the establishment; Engaged as an apprentice, not being an apprentice engaged under the Apprentice Act, 1961 (52 of 1961) or under the standing orders of the establishment.= (i) (ii) 4.1. It is also contended that as provided under Section 1(3) (b) of the EPF & MP Act, the provisions of the Act subject to the provisions contained in Section 16 applies to any other establishment employing 20 or more persons or class of such establishment which the Central Government may by notification in the official Gazette specify in this behalf provided that Central Government may after giving not less than two months notice of its intention so to do by notification in the official Gazettee apply the provisions of this Act to any establishment employing such number of persons less than 20 as may be specified in the Notification. Page 11 of 23 // 12 // 4.2. It is contended that in terms of the provisions contained under Section 1(3) (b) of the Act, Central Government vide its notification dt.09.02.1982 has made the provisions of the Act applicable to Universities like Opp. Party No.2. The Notification dt.06.03.1982 issued by the Government of India under Section 1(3)(b) of the Act is quoted hereunder. “1. Short tile, extend and application.- 3. Subject to the provisions contained in Section 16, it applies- (b) to any other establishment employing twenty or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette, specifiy in this behalf: provided that Central Government may, after giving not less than two months9 notice of its intention so to do, by the notification provisions of this Act to any establishment employing such number of persons less than 20 as may be specified in the Notification. the Official Gazettee apply in For the purpose of Section 1(3) (b) of the Act vide notification No.S.O.986 dated 09.02.1982 exercising power under Section 1(3) (b) of EPF and MP Act, 1952, the Central Government has made the provisions of the Act applicable to Universities like the OP. NO.2. The notification dated 06.03.1982 issued by the Government of India under Section 1(3) (b) of the Act is extracted below:- <S.O.986- In exercise of the powers conferred by clause (b) of sub-section (3) section 1 of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), the Central Government hereby specified the following classes of establishments in each of which twenty or more persons are employed, as establishments to which the said Act shall apply, namely:- (i) (ii) Any University Any College, whether or not affiliated to a University (iii) Any school, whether or not recognized or aided by the Central or State Government (iv) Any scientific institution Page 12 of 23 // 13 // (v) Any institution in which research in respect of any matter is carried on (vi) Any other institution in which the activity of is knowledge training or imparting systematically carried on.= 4.3. It is also contended that as per the provisions contained under Section 16(b) of the EPF and MP Act, the provisions of the said Act shall not apply to any other establishment belonging to or under the control of the Central Government or a State Government and whose employees are entitled to the benefit of Contributory Fund or Old age pension in accordance with any Scheme or Rule framed by the Central Government or the State Government governing such benefit. It is contended that since the workman working under OUAT are neither entitled to the benefit of contributory provident fund or old age pension rule, the bar contained under Section 16(b) of the Act is not applicable to the claim of the workman. 4.4. Mr. L. Pangari, learned Senior Counsel in support of his submission as well as the claim made in the Writ Petition relied on a decision of the Hon’ble Apex Court in the case of Pawan Hans Ltd. and Others Vs. Aviation Karmachari Sanghathan & Others, Civil Appeal No.353 of 2020 decided on 17.01.2020. Hon’ble Apex Court in Paragraph 6 of the said judgment has held as follows. Page 13 of 23 // 14 // “6. Discussion and analysis 6.1. It is first required to be seen whether the appellant Company is excluded from the applicability of the provisions of the EPF Act and the EPF Scheme framed thereunder as contended by them. 6.2 As per Section 1(3) of the EPF Act, the EPF Act is applicable to every establishment in which 20 or more persons are employed, which is either a factory engaged in any I, or an establishment which the Central Government may by notification in the Official Gazette specify in that behalf. Section 1(3) of the EPF Act reads as: industry specified in Schedule Section. 1. (3)Subject to the provisions contained in Section 16, it applies4 (a) to every establishment which is a factory engaged in any industry specified in Schedule I and in which twenty or more persons are employed, and (b) to any other establishment employing twenty or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette, specify in this behalf: Provided that the Central Government may, after giving not less than two months’ notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any establishment employing such number of persons less than twenty as may be specified in the notification.= Section 1(3) is subject to Section 16 of the EPF Act. Sub- section (1) of Section 16 enlists those establishments which are excluded from the applicability of the EPF Act. As per clause (b) of sub-section (1), an establishment belonging to or under the control of the Central or State Government, and whose employees are entitled to the benefit of contributory provident fund in accordance with any scheme or rules framed by the Central or State Government governing such benefits, is excluded from the purview of the EPF Act. Sub-section (1) of Section 16 reads as: to apply Section 16. establishments.4 Act not to certain (1) This Act shall not apply4 (a) to any establishment registered under the Cooperative Societies Act, 1912 (2 of 1912), or under any other law for the time being in force in any State relating to cooperative societies employing less than fifty persons and working without the aid of power; or (b) to any other establishment belonging to or under the control of the Central Government or a State Government and whose employees are entitled to the benefit of contributory provident fund or old age pension Page 14 of 23 // 15 // in accordance with any scheme or 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; to the (2) If the Central Government is of opinion that having financial position of any class of regard 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 of retrospectively, establishments from the operation of this Act for such period as may be specified in the notification.= This Court in Provident Fund Commr. v. Sanatan Dharam Girls Fund Commr. v. Sanatan Dharam Girls Secondary School, (2007) 1 SCC 268 : (2007) 1 SCC (L&S) 167] laid down a twin-test for an establishment to seek exemption from the provisions of the EPF Act, 1952. The twin conditions are: School [Provident Secondary class that or First, the establishment must be either <belonging to= or <under the control of= the Central or the State Government. The phrase <belonging to= would signify <ownership= of the Government, whereas the phrase <under the control of= would imply superintendence, management or authority to direct, restrict or regulate. Second, the employees of such an establishment should be entitled to the benefit of contributory provident fund or old age pension in accordance with any scheme or rule framed by the Central Government or the State Government governing such benefits. If both tests are satisfied, an establishment can claim exemption/exclusion under Section 16(1)(b) of the EPF Act. Applying the first test to the instant case, the Central Government has a 51% ownership in the appellant Company, while the balance 49% is owned by ONGC, a Central Government PSU. As per Section 2(45) of the Companies Act, 2013, a <government company= means any company in which not less than 51% of the paid-up share capital is held by the Central Government. Since 51% of the shares of the appellant Company are owned by the Central Government, the first test is satisfied as the appellant Company can be termed as a government company under Section 2(45) of the Companies Act, 2013. With respect to the second test, it is relevant to note that the Company had its own Scheme viz. the Pawan Hans Employees Provident Fund Trust Regulations in Page 15 of 23 // 16 // force. The Company however restricted the application of the PF Trust Regulations to only the <regular= employees. The PF Trust Regulations of the Company were not framed by the Central or the State Government, nor were they applicable to all the employees of the Company, so as to satisfy the second test. The Regional Provident Fund Commissioner, Bandra issued letter dated 24-5-2017 addressed to the Company wherein it was stated that the benefit of contributory to provident contractual/casual employees of the Company; and was directed to implement the provisions of the EPF Act. fund was provided being not The relevant extract from the letter is set out hereinbelow: <approximately 370-400 employees have been engaged by M/s Pawan Hans Ltd. on contract basis in various cadres. But no social security benefit is being extended to them. The EPF & MP Act, 1952 under Section 2(f) lays down that any person employed for wages in any kind of the work establishment and includes a worker engaged by or through a contractor. There is no distinction between a person employed on permanent, temporary, contractual or casual basis under Section 2(f) of the EPF & MP Act, 1952. in connection with the work of in or to You are, implement therefore, requested the provisions of the EPF & MP Act, 1952 in respect of all the contractual/causal employees engaged by M/s Pawan Hans Ltd. who are still not getting benefits of PF and pension.= In our view, the Company does not satisfy the second test, since the members of the respondent Union and other similarly situated contractual workers were not getting the benefits of contributory provident fund under the PF Trust Regulations framed by the Company, or under any scheme or any rule framed by the Central Government or the State Government. Consequentially, the exemption under Section 16 of the EPF Act would not be applicable to the appellant Company. In view of the above discussion, we hold that the Company has failed to make out a case of exclusion from the applicability of the provisions of the EPF Act. 6.3. The next issue which arises for consideration is whether the members of the respondent Trade Union are entitled to the benefit of provident fund under the PF Trust Regulations or under the EPF Act. Clause 1.3 of the Regulations would show that the PF <all Trust Regulations were made applicable employees= of the appellant Company. Clause 2.5 of the Regulations, defines an <employee=, to include any employee who is employed for wages/salary to Page 16 of 23 // 17 // to or though letters refer indirectly from the appointment in any kind of work, monthly or otherwise, or in connection with the work of the Company, and who gets the his wages/salary directly Company. Clause 2.5 excludes only a person employed by or through a contractor in connection with the work of the Company, and any person employed as an apprentice or trainee. In the present case, the respondent Union submitted that even the employees as <contractual= employees, they were not engaged through any contractor. They were being paid directly by the Company, which is evidenced from the pay-slips issued to them. It was submitted that about 250 contractual employees receive wages directly from the Company, and are eligible to be included under the PF Trust Regulations framed by the Company. 6.4. We find that the members of the respondent Union have been in continuous employment with the Company for long periods of time. They have been receiving wages/salary directly from the Company without the involvement of any contractor since the date of their engagement. The work being of a perennial and continuous nature, the employment cannot be termed to be <contractual= in nature. In our considered view, Clause 2.5 of the PF Trust Regulations would undoubtedly cover all contractual employees who have been engaged by the Company, and draw their wages/salary directly or indirectly from the Company. 6.5 As per Section 2(f) of the EPF Act, the definition of an <employee= is an inclusive definition, and is widely worded to include <any person= engaged either directly or indirectly the work of an establishment, and is paid wages. [Provident Fund Office v. Godavari Garments Ltd., (2019) 8 SCC 149 : (2019) 2 SCC (L&S) 483] connection with in to direct In view of the above discussion, we find that the members of the respondent Union and all other similarly situated contractual employees, are entitled to the benefit of provident fund under the PF Trust Regulations or the EPF Act. Since the PF Trust Regulations are in force and are applicable to all employees of the Company, it would be preferable the respondent Union and other similarly situated contractual employees are granted the benefit of provident fund under the PF Trust Regulations so that there is uniformity in the service conditions of all the employees of the Company. 6.6 The question which now arises is the date from which the benefit of provident fund is to be extended to the contractual employees. This Court vide order dated 24- 10-2019 had passed the following order: the members of that Page 17 of 23 // 18 // 8Provident fund is normally managed on actuarial basis; the contributions received from employer and the employee are invested and the income by way of interest forms the substantial fund through which any pay-out is made. For all these years the Fund in question was subsisting on contributions made by the other employees and, if at this stage, the benefit in terms of the judgment [Aviation Karmachari Sanghatana v. Pawan Hans Ltd., 2018 SCC OnLine Bom 2644 : (2019) 160 FLR 135] of the High Court is extended with retrospective effect, it may create imbalance. Those who had never contributed at any stage would now be members of the fund. The fund never had any advantage of their contributions and yet the fund would be required to bear the burden in case any pay-out is to be made. Even if employees concerned are directed to make good contributions with respect to previous years with equivalent matching contribution from the employer, the fund would still be deprived of the interest income for past several years in respect of such contributions.9 In order to have clear perspective in the matter and to see if there could be any solution to the problem as posed above, we call upon the petitioner to depute a person who is well versed in the matter and who has been managing the Provident Fund Scheme of Pawan Hans Ltd. to have a dialogue with Respondent 3 before 15-11-2019 (a representative of the respondent(s) is also at liberty to remain present during such discussion) so that a workable solution could then be presented by such person and the representative of Respondent 3 before us on the next occasion. 6. List the matter on 29-11-2019 at 10.30 a.m.= 6.7 The learned ASG submitted that no workable solution could be worked out at the meeting held between the representative of the appellant Company, Respondent 3, and the representative of the respondent Union. The learned ASG however offered that the appellant Company was willing to extend the benefit under the PF Trust Regulations to the members of the respondent Union and other similarly situated employees, from the date of the impugned judgment. 6.8. Respondent 3-the Regional Provident Fund Commissioner submitted that since the Company had remained out of the purview of the EPF Act, the direction to deposit contribution from the date of eligibility of the contractual employees till the date of remittance was not workable, and could not be sustained.= 4.5. Making all these submissions Mr. Pangari, learned Senior Counsel contended that since Government of India Page 18 of 23 // 19 // vide its Notification dt.06.03.1982 has already held that the provisions of EPF & MP Act is applicable to any University which also includes OUAT, the benefits of EPF and MP Act is required to be extended in favour of the workmen belonging to the Petitioner Union. Similarly in view of the notification issued by the State Government on 24.08.2011, so published in the Gazette on 25.11.2011, the provisions of ESI Act is also applicable to the workmen working in OUAT. Accordingly it is contended that the prayer as made in the Writ Petition is required to be allowed by this Court. 5. To the aforesaid submission of Mr. L. Pangari, Mr. Pal learned counsel appearing for the OUAT made further submission, taking into account the stand taken by the Opp. Party Nos.2 & 3 in the affidavit filed on 08.05.2023. It is contended that since the employees of OUAT are covered under the Old age Pension Scheme and Family Pension Scheme Scheme similar to the employees of the Orissa Government and OUAT vide notification dt.21.05.2014 has approved and implemented the contributory Pension Scheme to OUAT employees, no further order is required to be passed in the matter. 5.1. It is also contended that in view of the bar contained under Section 16(b) of the EPF Act, the casual employees Page 19 of 23 // 20 // working under the University are not entitled to be covered under the Provisions of EPF Act. 6. Mr. Sisir Sundar Mohanty, learned counsel appearing for the Opp. Party No.5 on the other hand while supporting the case of the Petitioner contended that the workmen working in OUAT are liable to be covered under the provisions of EPF & MP Act and in spite of various communications issued by the Opp. Party No.5 directing the Opp. Party Nos.2 & 3 to register the workmen under the provisions of EPF & MP Act, no concrete decision is being taken by the University. 7. Similarly Mr. P.K. Mahony, learned counsel appearing for Opp. Party No.4 also while supporting the case of the Petitioners’ Union contended that the workmen working in the OUAT are also liable to be covered under the ESI Act, in view of the notification issued by the Government on 25.08.2011 vide Notification No.7752-SS-II-42/2011/LE. 8. I have heard Mr. L. Pangari, learned Senior Counsel appearing for the Petitioner, Mr. P.K. Parhi, learned DSGI appearing for Opp. Party No.1, Mr. A. Pal, learned counsel appearing for Opp. Party Nos.2 & 3, Mr. P.K.Mohanty, learned counsel appearing for Opp. Party No.4 and Mr. S.S.Mohanty, learned counsel appearing for Opp. Party No.5 Page 20 of 23 // 21 // along with Mr. M.K. Balabantaray, learned Additional Govt. Advocate appearing for Opp. Party Nos.6 & 7. 9. On the consent of the learned counsel appearing for the parties with due exchange of the pleadings, the matter was
Arguments
It is contended that in consideration of the request made by the Opp. Party Nos.4 & 5, Opp. Party No.3 vide her Office Order dt.19.07.2019 also agreed to extend the benefit of EPF & ESI in favour of the casual labourers of OUAT engaged in different establishment and who have been getting their wages in conformity with the minimum wages fixed by the Government. In the said order, it was also indicated that the benefit of EPF & ESI to the casual labourers shall be brought in force after due registration of Establishment under the provisions of EPF & ESI Act. It is also contended that vide letter dt.23.07.2019 issued by the Government in the Department of Agriculture & Farmers’ Empowerment addressed to Opp. Party No.3, it was also clearly indicated that the provisions of EPF & MP Act, 1952 as well as ESI Act, 1948 are applicable to the casual Page 5 of 23 // 6 // labourers engaged in OUAT. After issuance of Annexure-14, Opp. Party No.6 vide letter dt.25.09.2019 under Annexure-15 requested the Opp. Party No.3 to intimate the action taken report with regard to implementation of the provisions of the EPF & ESI Act in favour of the casual labourers engaged in OUAT. 2.7. It is contended that in spite of the order passed by the University under Annexure-13 and the communications made by the Government under Annexures-14 & 15, when no action was taken to extend the benefit of EPF & ESI, Opp. Party No.5 vide letter dt.04.10.2019 under Annexure-16 requested Opp. Party No.3 to take necessary action for registration of establishment under the EPF Act and to register all the coverage employees through Online under Shram Suvidha Portal. However, when no action was taken by the OUAT, Opp. Party No.6 once again vide letter dt.21.10.2019 under Annexure-17 requested the Opp. Party No.3 to submit a compliance report showing the extension of benefit of EPF and ESI in favour of the casual labourers working in the OUAT. 2.8. It is contended that in spite of all the communications so made, when no final decision was taken extending the benefit of EPF & ESI in favour of the casual labourers, the Page 6 of 23 // 7 // OUAT Workers Union moved the Opp. Party No.2 on 10.02.2020 under Annexure-18 with a request to implement the same or else the Union will go on strike. Thereafter vide letter issued under Annexures-19 & 20 though Opp. Party Nos.4 & 5 requested the University to implement the provisions of EPF & ESI but when no action was taken, the present Writ Petition was filed inter alia with the prayer to direct the University to extend the benefit of EPF & ESI in favour of the workmen working under the OUAT. 2.9. Mr. Laxmidhar Pangari, learned Sr. Counsel appearing on behalf of the Petitioner vehemently contended that on the face of the communications made from Annexures-2 to 19
Decision
finally heard at the stage of admission and disposed of by the present order. 10. Having heard learned counsel for the parties and after going through the materials available on record, it is found that the petitioner representing the casual labourers working under OUAT is before this Court with a prayer to direct the Opp. Party Nos.2 & 3 to extend the benefit of EPF and PF Act as well as ESI Act in favour of such casual employees. As found from the communications available from Annexures-2 to 17, it is quite apparent that the casual employees working under OUAT are liable for their coverage under the provisions of EPF and P.F Act as well as ESI Act. It is also found from the record that Opp. Party Nos.2 & 3 vide communications issued under Annexure-13 though decided to cover the casual employees under the ESI and EPF Scheme, but no final decision was taken in that regard. It is also found from Annexures-14 & 15 that the casual employees working under OUAT are liable for their coverage under the provisions of EPF & ESI Act. The stand taken by the University taking Page 21 of 23 // 22 // recourse to the provisions contained under Section 16(b) of the Act is not applicable as the casual employees are not getting the benefit of Contributory Provident Fund or Old Age Pension Rule. Even though it is admitted in the further affidavit so filed by the OUAT that the employees of the University are covered under the provisions of CPF and Old Age Pension Rule, but no specific averment is made therein that such benefit is also extended to casual employees to which the Petitioner Union represents. It is also found from the record that Opp. Party Nos.4 & 5 time and again though have issued direction to the University to register the Workmen under the provisions of EPF & ESI Act but the University all through on the face of Annexure-13 order is not taking any action to extend the benefit. 10.1. Therefore, in view of such materials available in the record and the decision relied on by the learned Senior Counsel appearing for the Petitioner, this Court is of the view that the NMR/DLR/Casual workmen working in OUAT are eligible for their coverage under the provisions of EPF & ESI Act. While holding so, this Court directs Opp. Party Nos.2 & 3 to extend the benefit of EPF & ESI in favour of the casual employees working in the OUAT within a period of three(3) months from the date of receipt of this order. Page 22 of 23 // 23 // The Writ Petition is accordingly allowed and as such the same stands disposed of. Orissa High Court, Cuttack Dated the 27th June, 2023/sangita (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: AUTHENTICATION OF ORDER Location: hIGH cOURT OF ORISSA, CUTTACK Date: 03-Jul-2023 18:23:27 Page 23 of 23