Financial Service Executives Welfare Association and Muraleedharan C.V. v. S.K. Roy and T. Sidharthan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 7TH DAY OF SEPTEMBER 2016/16TH BHADRA, 1938** **Con.Case(C).No. 1682 of 2015 (S) --------------------------------** **WA 1707/2014, DATED 9/3/2015 --------------** ## **PETITIONER(S)/APPELLANTS:** **------------------------** **1. FINANCIAL SERVICE EXECUTIVES WELFARE ASSOCIATION, REG. NO. EKM/TC/145/2014,REPRESENTED BY THE SECRETARY, SAJITH T., SREELAKSHMI, NEAR OLD M.C. ROAD, KODIMATHA, KOTTAYAM.** **2. MURALEEDHARAN C.V.,** - **FINANCIAL SERVICE EXECUTIVE, L I C OF INDIA, RESIDING AT CHAMPARAYIL, AROOR P.O., ALAPPUZHA.** **BY ADVS.SRI.N.DHARMADAN (SR.) SMT.D.P.RENU** **RESPONDENT(S)/RESPONDENTS 1 AND 2:** **----------------------------------** **1. S.K.ROY,** **(AGE AND FATHER'S NAME NOT KNOW TO THE PETITIONERS), CHAIRMAN, L I C OF INDIA, YOGAKSHEMA, P.B. NO. 19953, JEEVEN BHIMA MARG, NARIMAN POINT, MUMBAI - 400 021.** **2. T. SIDHARTHAN,** **(AGE AND FATHER'S NAME NOT KNOW TO THE PETITIONERS), ZONAL MANAGER, ZONAL OFFICE, L I C BUILDING, 153, ANNA SALAI, P.B. NO. 2540, CHENNAI - 600 002.** **R1,2 BY ADVS. SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.S.EASWARAN** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 07-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** **Con.Case(C).No. 1682 of 2015 (S) --------------------------------** ## **APPENDIX** |**PETITIONER(S)'**|**ANNEXURES**| |---|---| |**-----------------------**|| |**ANNEXURE I**|**CERTIFIED COPY OF JUDGMENT IN WA.1707/14 DT.9/3/15**| ||**OF THIS HON'BLE COURT**| |**ANNEXURE II**|**A TRUE COPY OF THE LETTER DT.6/8/15 BY ADDL.CENTRAL**| ||**PROVIDENT FUND COMMISSIONER**| |**ANNEXURE III.**|**A TRUE COPY OF REPRESENTATION DATED 17/3/15 BY THE**| ||**PETITIONERS**| |**ANNEXURE IV**|**TRUE COPY OF REMINDER DT.20/5/15 BY THE PETITIONERS**| |**ANNEXURE V**|**TRUE COPY OF REMINDER DT.15/6/15 BY THE PETITIONERS**| |**RESPONDENT(S)'**|**ANNEXURES**| |**-----------------------**|| ||**NIL.**| ||**/ TRUE COPY /**| ||**P.S. TO JUDGE**| **PJ** ## **A.M. SHAFFIQUE & P.V.ASHA, JJ.** ====================== C.O.C.No.1682 of 2015 =============== Dated this, the 7[th] day of September, 2016 ## **J U D G M E N T** ## _**Shaffique, J.**_ The appellants in WA No.1707/2014 has filed this contempt case _inter alia_ alleging non compliance of directions issued by this Court as per judgment dated 9/3/2015. 2. Writ Appeal was filed by the petitioners challenging judgment dated 17/11/2014 in WP(C) No. 9608/2014 by which the writ petition was dismissed. In the writ petition, the petitioners _inter alia_ sought for a direction to the respondents, LIC and the Additional Provident Fund Commissioner to proceed with Exts.P6 and P7 and grant the benefit of PF, gratuity etc., and other reliefs. By the above judgment, Division Bench of this Court observed that the judgment of the learned Single Judge requires modification in so far as the claim of provident fund and other facility to members of Financial COC No.1682/2015 -:2:- ## Service Executives (for short FSEs) are concerned. Therefore, the writ appeal was disposed of modifying the judgment in the following manner:- _“i) The judgment of the learned Single Judge is upheld in so far as it dismisses the Writ Petition for the reliefs claimed in the Writ Petition, except relief No.(f)._ _ii) Respondents 1 to 7 are directed to extend the benefit of Provident Fund as per Exhibit P6 letter dated 06.08.2012 of the Additional Central Provident Fund Commissioner. The entire process of extending the said benefit of Provident Fund be completed within a period of three months from the date of receipt of a copy of this judgment by the first_ _respondent._ _iii) The petitioners are given liberty to submit a detailed representation to the first respondent with regard to the claim of maternity leave and other facilities, if any to the members of FSEs, who may consider and take a decision within a period of three months from the date of receipt of a copy of this judgment by the first respondent.”_ 3. In the contempt case, it is contended that no action was taken by the respondents to implement the directions in the judgment despite the expiry of time as COC No.1682/2015 -:3:- specified in the judgment. 4. It is contended that against the judgment, the petitioners preferred Special Leave Petition No.14641/2015 challenging the denial of regularization of FSEs. The respondents sought for extension of time for complying with the judgment and a further three months' time was granted, which expired on 10/9/2015. This was extended by another two months as per interim order dated 15/9/2015 in IA No.1205/2015. Still, no action was taken to comply with the judgment. The extension of time granted by this Court expired on 9/11/2015 and since further action was not taken pursuant to the judgment, alleging wiflful contempt, the contempt case is filed. 5. When the above matter came up for hearing on 18/12/2015, the learned counsel appearing for 1[st] respondent submitted that steps have already been initiated for payment of provident fund. Time was sought for filing an affidavit explaining the time frame in which the payment of COC No.1682/2015 -:4:- the provident fund shall be made. Pursuant to order dated 18/12/2015, an affidavit was filed by the respondents on 15/1/2016 _inter alia_ submitting that in view of the pendency of the Special Leave Petition, it was decided to wait for the said outcome as several policy decisions have to be taken before implementing the direction. It is stated that on 30/11/2015, tenders/enquiry were invited for engaging Pay roll contractor for extending the provident fund benefits to the contractual FSEs. Tendering process has to be conducted based on guidelines issued by the Central Vigilance Commission. Tenders were finalised on 8/1/2016 appointing M/s.Team Lease Services as Pay roll contractor for extending provident fund benefit to FSEs. It is stated that to complete the process of remitting provident fund of the FSEs with Employees Provident Fund Organization, it would take atleast further six months. 6. The petitioners filed reply affidavit disputing the aforesaid facts. A further affidavit was filed on 14/6/2016 by COC No.1682/2015 -:5:- the respondents. The above matter again came up for orders on 01/02/2016 when a submission was made by learned counsel for respondents that the provident fund will be credited in the respective Provident Fund account of the members of the petitioners' association by the 1[st] week of March, 2016. This submission was taken note of as per order dated 01/02/2016. Pursuant to the said direction, an affidavit is filed on 8/3/2016 _inter alia_ stating that the petitioner association had provided a list of members before this Court in the writ petition. From the list so made available, LIC has completed registration in respect of 25 persons in the list and have remitted the contribution payable in respect of the said persons from the year 2008-09 till 2015-16. Copy of details of registration along with payment of contribution of PF amount was also produced as Annexure R2(c). A reply affidavit was filed by the petitioner stating that no such remittance was made by LIC in respect of the PF account of members of the association in the provident fund account COC No.1682/2015 -:6:- maintained by the LIC in Kerala. It is stated that the Provident Fund Code referred in the document is with respect to the PF Code of West Bengal, Durgapur which is not intended to be disbursed to the members of the association as directed by this Court. It is further stated that on enquiry through _e-mail_ with Durgapur P.F Code shown in the list, petitioners could not get any details of the account of PF amount for disbursal to the members of the petitioner association. Another affidavit is filed by the respondents on 14/6/2016 reiterating the fact that the amount due under the PF has been deposited with the Employees Provident Fund. Further, the representation dated 17/3/2015 for including the provision of maternity benefits for FSEs in the FSE Scheme 2007 at par with regular cadre of employment in the Corporation has not been allowed by the competent authority as per its decision dated 2/12/2015. Another reply affidavit was filed by the petitioners on 13/6/2016 reiterating the fact that LIC had not deposited any provident fund with COC No.1682/2015 -:7:- the Provident Fund Commissioner, Sub Regional Office Durgapur. They referred to an _e-mail_ communication, Annexure X, by which Employees PF Organization had sent a letter to LIC by which direction had been issued to extend PF benefit to all eligible employees engaged in any manner. According to them, they have sought for information from the Regional Provident Fund Commissioner for necessary details in this regard. They also denied the fact that Annexure III representation dated 17/3/2015 raising issues regarding the maternity benefit was not disposed of as alleged. 7. The respondents thereafter filed affidavit on 4/7/2016 reiterating the fact that the amount in so far as the members of the petitioner association has already been deposited with the EPF Organization. They also produced receipts evidencing payment for the years 2008-09, 200910, 2010-11, 2011-12, 2012-13, 2013-14, 2014-15 and 2015- 16. Further it is stated that in response to letter dated COC No.1682/2015 -:8:- 26/4/2016, Annexure (X), the LIC has already addressed to the concerned authority notifying that the entire payment has been made. Ext.R2(l) is the said letter issued by the LIC to the Assistant Provident Fund Commissioner, EPF Organization Durgapur, West Bengal. It is therefore submitted that once the amount has been deposited, it is for the employees to seek for withdrawal of the same as per the procedure prescribed. The respondent also produced copy of reply dated 13/6/2016 by which the representation dated 17/3/2015 has been considered and a copy of the order was also sent to the Association. They also produced copy of the reply dated 13/6/2016 along with postal track record showing receipt of letter as Annexures R2(m) and (n). A reply affidavit is filed on 8/7/2016. 8. During the pendency of the contempt case, the petitioners filed IA No.106/2016 in the writ appeal to extend the time for complying with the directions. By order dated 24/5/2016, this Court had granted six months' time from COC No.1682/2015 -:9:- 13/1/2016 to comply with the directions in the judgment. 9. Heard the learned senior counsel Sri.N.Dharmadan appearing for the petitioners and Sri.S.Easwaran, learned counsel appearing for LIC 10. Primarily, the question is whether the respondents have committed wilful contempt of the directions issued by this Court. The law in this regard is well settled. We would like to refer to the judgment in _**Ram Kishan v. Tarun Bajaj**_ [(2014) 16 SCC 204], wherein, the Apex Court had, while considering a case of contempt, crystallized the position of law at paras 11 to 15 as under:- _**“11.** The contempt jurisdiction conferred on to the law courts power to punish an offender for his wilful disobedience/contumacious conduct or obstruction to the majesty of law, for the reason that respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen that his rights shall be protected and the entire democratic fabric of the society will crumble down if the respect of the judiciary is undermined. Undoubtedly, the contempt jurisdiction is a powerful weapon in the hands of the courts of law_ COC No.1682/2015 -:10:- _but that by itself operates as a string of caution and unless, thus, otherwise satisfied beyond reasonable doubt, it would neither be fair nor reasonable for the law courts to exercise jurisdiction under the Act. The proceedings are quasi-criminal in nature, and therefore, standard of proof required in these proceedings is beyond all reasonable doubt. It would rather be hazardous to impose sentence for contempt on the authorities in exercise of the contempt jurisdiction on mere probabilities. (Vide V.G. Nigam v. Kedar Nath Gupta, Chhotu Ram v. Urvashi Gulati, Anil Ratan Sarkar v. Hirak Ghosh, Bank of Baroda v. Sadruddin Hasan Daya, Sahdeo v. State of U.P. and National Fertilizers Ltd. v. Tuncay Alankus.)_ _**12.** Thus, in order to punish a contemnor, it has to be established that disobedience of the order is “wilful”. The word “wilful” introduces a mental element and hence, requires looking into the mind of a person/contemnor by gauging his actions, which is an indication of one’s state of mind. “Wilful” means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bona fide or unintentional acts or genuine inability. Wilful acts does not encompass involuntarily or negligent actions. The act has to be done with a “bad purpose or without justifiable excuse or stubbornly, obstinately or perversely”. Wilful act is to be distinguished from_ COC No.1682/2015 -:11:- _an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished. “Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct.” (Vide S. Sundaram Pillai v. V.R. Pattabiraman, Rakapalli Raja Ram Gopala Rao v. Naragani Govinda Sehararao, Niaz Mohammad v. State of Haryana, Chordia Automobiles v. S. Moosa, Ashok Paper Kamgar Union v. Dharam Godha, State of Orissa v. Mohd. Illiyas and Uniworth Textiles Ltd. v. CCE.)_ _**13.** In Lt. Col. K.D. Gupta v. Union of India this Court dealt with a case wherein direction was issued to the Union of India to pay the amount of Rs 4 lakhs to the applicant therein and release him from defence service. The said amount was paid to the applicant after deducting the income tax payable on the said amount. While dealing with the contempt application, this Court held that: (SCC p. 567, para 4)_ _“4. … withholding the amount cannot be held to be either mala fide nor is there any scope to impute_ COC No.1682/2015 ## -:12:- _that the respondents intended to violate the direction of this Court.”_ _**14.** In Mrityunjoy Das v. Sayed Hasibur Rahaman the Court while dealing with the issue whether a doubt persisted as to the applicability of the order of this Court to the complainants held that it would not give rise to a contempt petition. The Court was dealing with a case wherein the statutory authorities had come to the conclusion that the order of this Court was not applicable to the said complainants while dealing with the case under the provision of the West Bengal Land Reforms Act, 1955._ _**15.** It is well-settled principle of law that if two interpretations are possible, and if the action is not contumacious, a contempt proceeding would not be maintainable. The effect and purport of the order is to be taken into consideration and the same must be read in its entirety. Therefore, the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act. [See Sushila Raje Holkar v. Anil Kak and Three Cheers Entertainment (P) Ltd. v. CESC Ltd.]_ 11. Having regard to the aforesaid law laid down by the Apex Court, the question to be considered is whether the respondents have willfully committed any contempt. As already indicated, time for compliance of the judgment had COC No.1682/2015 -:13:- been extended upto 13/7/2016 and during the aforesaid period, respondents have produced sufficient material to indicate that they have deposited the Provident Fund before the EPF Organization. They have produced receipts evidencing payment for the years 2008-09 to 2015-16 to the account of Employees Provident Fund Organization, Durgapur. Therefore, according to the respondents, the apprehension expressed by the petitioners that no such deposit had been made is totally out of place. Further, they have also produced Annexures R2(m) and R2(n) which is the reply to the representation dated 17/3/2015 in regard to the maternity benefit claim raised as per directions issued by this Court. Therefore, the contention of the respondents is that the directions issued had been fully complied with. 12. Learned counsel for the petitioners would however argue that the documents produced by the respondents as Annexures R2(d) to R2(k) series do not reflect a proper receipt as contemplated. It is argued that they are only COC No.1682/2015 -:14:- combined chalans and electronic chalan cum returns which can be produced by anybody without making actual payments to the provident fund account of the members of the association. Therefore the documents are not receipts evidencing payment. Further, the contention is that there was no legal justification for LIC to have approached the EPF Organization at Durgapur, West Bengal. 13. The contention is that there is no valid explanation for having approached the EPF Organization at Durgapur when all members of the petitioner association are employed and working in Kerala. It is therefore contended that the alleged compliance is not a compliance in terms of the judgment of this Court and therefore appropriate action has to be taken in the matter. But having perused Annexures R2(d) to R2(k) documents, we do not think that an organization like LIC would file an affidavit before this Court stating that the amounts have been deposited without taking any steps in that regard. These are documents COC No.1682/2015 -:15:- evidencing combined chalans being drawn by online process for remittance of the amounts and documents also indicate all the particulars of each of the employees with serial number, member ID, their wages, names, contribution etc,. Under such circumstances, when all particulars have been made available before this Court to prove compliance of the directions issued by this Court, we do not think that the facts projected by the petitioners would reflect a wilful contempt. 14. After the matter was heard by this Court on 8/7/2016, an application as IA No.387/16 is filed by the petitioners producing Annexures XII and XIII. These documents are produced to show that the respondents have not complied with the judgment of this Court. Counter affidavit is filed to IA No.387/2016 _inter alia_ stating that the said documents cannot be relied upon since the documents are information received under the Right to Information Act and the application is submitted by giving only the Establishment Code under the individual head without giving COC No.1682/2015 -:16:- the actual individual PF number. They also produced Annexure R2(p), a letter issued by the EPF Organization to the Divisional Manager, LIC by which it is stated that though the date of coverage is 1/9/1956, remittance is made in A/c.1 only from February 2008 onwards. The respondent was directed to clarify and confirm the actual coverage. A reply is send as Annexure R2(q) on 20/8/2016 to the EPF Organization intimating that the FSEs were given the benefit of PF only on account of the direction issued by this Court in the writ appeal judgment. It is also stated that form numbers are being issued for further requirements. The judgment of this Court only directed the LIC to extend the benefit of PF as per Ext.P6 letter dated 6/8/2012 of the Additional Provident Fund Commissioner. Ext.P6 letter is produced as Annexure II. The relevant portion reads as under:- ## _“_ _**Financial Service Executives (FSEs)** :_ _Regarding the issue of extension of PF benefits to the contractual employees - Financial Service Executives, the decision of the Corporation_ COC No.1682/2015 ## -:17:- _to bring them under the purview of the LICI's own Provident Fund Scheme is appreciated. However while implementing the scheme, it may be ensured that the PF benefits are extended right from their date of joining service, and a note of confirmation to that effect may be sent to this office. If the implementation is post-facto, i.e., from the date of the above decision, then they become eligible to be covered under EPF Act 1952, from their dates of joining service till the date of above decision.”_ 15. Therefore, when necessary arrangements had already been made to extend the benefit of PF to the petitioners and the documents relating to the same had been produced before this Court, merely for the reason that the petitioners could not get sufficient information regarding the same cannot be treated as an instance of wilful contempt. May be the respondents will have to comply with some more procedural requirements for enabling the petitioners to avail the benefit of the scheme. But the fact remains that all necessary steps have been taken by the respondents to comply with the judgment of this Court. COC No.1682/2015 -:18:- In the said circumstances, we are not satisfied that a case of wilful contempt had been made out in the case. Contempt case is, therefore, dropped. Sd/- **A.M. SHAFFIQUE, JUDGE** Sd/- **P.V.ASHA, JUDGE** Rp //True Copy// P.S. to Judge