Workers engaged through subcontractors may not claim direct employment status without evidence; entitlement to provident fund dues requires enquiry by the Provident Fund Commissioner.

JUDGMENT :

SWP No.1696/2012

1. The petitioners, who claim to be President and Secretary of Bridge Superstructural Association, have filed this writ petition on behalf of members of the Union. According to the petitioners, the Union comprises 70 members. A direction has been sought upon the respondents to absorb/confirm and regularize the members of the Union against the available posts in respondent No.2-company. A further direction has been sought upon the respondents to comply with the provisions relating to payment of provident fund and to deposit the remaining portion of the provident fund in the Court.

2. Briefly stated, case of the petitioners is that the members of the Union were engaged on various jobs by respondent No.2 which include Supervisors, Technicians, Computer Analysts and Helpers. Their salaries were drawn through bank accounts operated for this purpose in J&K Bank Solina. They were assigned various jobs by respondent No.2-company. It has been submitted that the Site Managers of the respondent company informed the petitioners about discontinuation of services of the employees, as a result of which they are not getting salary. A number of representations are stated to have been made by the petitioners wherein it was highlighted that the employees have completed six years of service on the project and, as such, they are entitled to be suitably adjusted on regular posts on the establishment of the respondent company. It has been submitted that the employees have acquired knowledge and skill of the jobs and they have also acquired the status of permanent workmen, as a result of which they deserve to be confirmed and regularized.

3. The employees are stated to have approached the Additional Provident Fund Commissioner, Kashmir, through representations stating therein that they have been making contributions towards provident fund but the same has not been credited to the account. It has been submitted that when the employees approached Additional Provident Fund Commissioner and sought direction upon the respondent company to deposit its share of provident fund, upon directions by the Additional Provident Fund Commissioner, Kashmir, the respondent company agreed to make deposit of provident fund contribution. It has been further submitted that despite undertaking to make contribution to provident fund, the respondent company failed to abide by the undertaking and ultimately warrants were issued by the Additional Provident Fund Commissioner, Kashmir, against the officers of the respondent company, whereafter an amount of Rs.90,97,061/ has been deposited by the respondent company as contribution towards provident fund. The petitioners contend that by doing so, the respondent company has accepted the status of the employees, however, the respondent company vide its various communications has tried to wriggle out of its responsibility by claiming that the employees have been engaged through contractors whereas the fact of the matter is that the respondent company is the employer of all these employees. It has been further submitted that the provident fund deposited with the Additional Provident Fund Commissioner has not been released in favour of the employees which compelled them to file writ petition bearing SWP No.1358/2011 in which a direction was passed for release of legitimate wages of the employees.

4. It has also been submitted that the Additional Provident Fund Commissioner sought information from the respondent company but the same has been withheld by the company which has delayed the release of provident fund dues to the employees. It has been contended that the action of the respondent company is mala fide and actuated with political considerations, as a result of which the employees have been left high and dry. It has been submitted that the employees have been ousted from their employment by the respondent company without adopting due process of law. In short, case of the petitioners is that the workers empl