The court upheld the eligibility criteria introduced in the Notice Inviting Tender, emphasizing that it was for the benefit and betterment of the workers/employees working under the contractor.

Jyotirmay Bhattacharya, J.

1. Twenty-seven writ petitioners filed a writ petition on common cause. They are engaged in carrying on business of maintenance/ EPR/ completion and finishing services such as glazing, plastering, flooring, wall tailing, installation, electrical fittings, etc. and the number of workers in their establishments is below

20. They engaged sub-contractors for labour for execution of the said job. They provide service to the Headquarter, Commercial Works Engineers Military Engineer Services in Kolkata and other branches.

2. Pursuant to a notification and/or circular issued by the Director (Contractor) for Engineer-in-Chief on 6th November, 2015, an eligibility clause was inserted by the concerned authority in the notice inviting tender whereby submission of a scanned copy of permanent provident fund registration number was made compulsory for participating in the tender process.

3. The writ petitioners filed a writ petition challenging the notification and/or circular which issued by the Director of Contract for Engineer-in-Chief on 6th November, 2015. The text of the said notification and/or the circulation is set out hereunder:

“During evaluation of ‘T’ bid (Cover-1) of e-tendering, uploading of copy of Provident Fund Code number in addition to other documents required shall be mandatory. It should be clearly mentioned in NIT that contractor not in possession of this number shall be disqualified in ‘T’ bid evaluation and his finance bid shall not be opened.”

4. Fact remains that though the writ petitioners did not have EPF Code before filing the writ petition but during the pendency of the writ petition they applied for the EPF Code and after obtaining the EPF Code they participated in the tender process on submission of their scanned copy of permanent Provident Fund Registration Number. Some of the writ petitioners were ultimately found successful in the tender process and contracts were awarded to them. Some of them were unsuccessful. As such contracts were not awarded to them.

5. The learned single judge of this court rejected the writ petition by holding that the condition for obtaining EPF Code imposed in the Notice Inviting Tender as an eligibility criteria for participating in the tender process is not against the interest of the workers/employees working under the contractor. It was held that such condition was introduced in the Notice Inviting Tender for the benefit and betterment of the workers/employees who are working under the contractor. It was further held that since the condition is for Social Security of the workmen, the petitioners could not have any grievances. Holding as such, the writ petition was dismissed.

6. The legality and/or the correctness of the said order is under challenge in this mandamus appeal before us.

7. The learned counsel appearing for the writ petitioners-appellants submits that under the Employees’ Provident Fund & Miscellaneous Provisions Act, 1952 the principal liability to deposit the employees’ contribution is upon the ultimate employer and the primary liability to pay such contribution is not imposed on the contractor. He further submits that since the writ petitioners employed less than twenty labours under them, they are not even liable either to deduct employees contribution under the said Act or to deposit the same with the Provident Fund Authority.

8. He by relying upon the decisions of the Hon’ble Supreme Court in the case of Bharat Heavy Electricals Ltd. –vs-Employees’ State Insurance Corporation, reported in (2008) 3 SCC 247 and Orissa Cement Ltd. & Ors. – vs- Union of India & Ors., reported in 1962 Supp. (3) SCR 837 tried to impress upon us that the eligibility criteria which was introduced in the NIT in pursuance of the circular and/or notification issued by the Director (Contract) for NC is contrary to the scheme of the Employees’ Provident Fund & Miscellaneous Provisions Act, 1952. He thus invites us to interfere with the order impugned.

9. Here is