Bombay High Court
Amt Zilla Mahila Sahakari Amt vs The Assistant Provident Fund ... on 16 March, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.3714 OF 2004
The Amravati Zilla Mahila Sahakari
Bank Limited, a Cooperative Bank
registered under the Maharashtra
Co-operative Societies Act, 1960,
having its registered office at Jawahar
Road, Amravati, through its Chief
Executive Officer - Shri Subhash s/o
Shyamrao Mahore, R/o Amravati. .... PETITIONER
VERSUS
The Assistant Provident Fund Commissioner,
Sub-Region Office, Ridge Road, Sant
Tukdoji Square, Raghuji Nagar, Nagpur. .... RESPONDENT
______________________________________________________________
Dr. R.S. Sundaram, Advocate for the respondent.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 16
MARCH, 2017.
th
ORAL JUDGMENT :
Shri A.P. Chaware whose name appears on record as
Advocate for the petitioner alongwith Shri V.M. Deshpande (elevated
as Judge of this Court), Ms. Mrinal Elkar, Advocate states that Ms.
Mrinal Elkar and he had signed the Vakalatnama alongwith Shri
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V.M. Deshpande as they were assisting Shri V.M. Deshpande at that
time as juniors. Shri A.P. Chaware, Advocate submits that he has no
instructions from the petitioner to argue the matter.
Heard Dr. R.S. Sundaram, Advocate for the respondent.
The petitioner/Co-operative Bank has challenged the orders passed by
the subordinate authorities under the provisions of the Employees'
Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter
referred to as the "Act of 1952") concluding that the petitioner/Co-
operative Bank is liable to pay/deposit an amount of Rs.35,96,602/-
towards provident fund and allied benefits for the pigmy deposit
collectors employed with the petitioner/Co-operative Bank.
2. The challenge on behalf of the petitioner/Co-operative
Bank is substantially on the ground that the pigmy deposit collectors
cannot be said to be employees on wages as per the provisions under
Section 2(f) of the Act of 1952. The petitioner has raised ground in
the petition that the petitioner/Co-operative Bank is not having control
over the pigmy deposit collectors and many of them are working with
other co-operative banks as pigmy deposit collectors.
3. The Division Bench of this Court settled the issue by the
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judgment given in the case of Pachora Peoples' Co-op. Bank Ltd. vs.
Employees Provident Fund Organisation (Ministry of Labour,
Government of India) reported in 2014(4) Mh.L.J. 436 holding that
the pigmy deposit collectors would be the employees of the bank and
they will be covered by the employer-employee principle. However,
an Application No. 186/2016 was filed seeking review of this judgment
which is decided by the Division Bench of this Court at Aurangabad
Bench on 11-01-2017. Though the review application is dismissed, the
Division Bench has clarified about the factors to be considered in the
enquiry by the authorities under the Act of 1952 and these are
summarised in paragraph No.32 of the order as follows :
"32. We are, therefore, of the view that the following
factors must be considered by the EPF Authorities in such
cases :-
(a) The EPF Authorities should collect necessary
documents by inspection of records of the
Establishment/Industry.
(b) A direction to the Management to produce the
documents as may be found necessary, should be
issued whenever the EPF Authorities realize that
Management is holding back certain documents.
(c) The appointment orders/contract letters or
agreements in between the Banks and the pigmy
agents/deposit collectors should be made available
for scrutiny and should be taken into consideration.
(d) Based on the above documents, the EPF Authorities
must adjudicate on the following aspects :
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(i) Whether, the contracts/appointment orders
have a semblance of employer-employee
relationship ?
(ii) Whether, there is supervision, control and
direction of the Bank over such agents ?
(iii) Whether, these agents are under an
obligation to work only for a particular Bank
or it's Branches ?
(iv) Whether, these agents are permitted to work
elsewhere or undertake any other business,
job, profession or calling ?
(v) Whether, such agents are primarily
dependent upon the work of collecting
deposits for a particular Establishment ?
(e) Interrogate the pigmy depositors to elucidate
information about their exact nature of duties.
(f) Based on the documents and an analysis upon
considering the above mentioned factors, the APFC
will have to arrive at a conclusion supported by
reasons that such pigmy agents can be termed as
"workmen" and share employer-employee
relationship with the Bank and are being paid
wages disguised as commission. The said
commission amount would then be termed as basic
wages under Section 2(b) of the EPF Act."
4. The learned Advocate for the respondent has pointed out
from the order passed by the Assistant Provident Fund Commissioner,
the finding recorded after considering the memorandum of agreement
between the bank and the pigmy deposit collector and the other
documentary evidence on record, which show that the petitioner/
Co-operative Bank is having absolute control over the pigmy deposit
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collectors and the evidence on record establishes that there is an
employer-employee relationship. The learned Advocate for the
respondent has pointed out Clauses 12 and 13 of the agreement
between the co-operative bank and one of the pigmy deposit collector,
to the effect that the pigmy deposit collector employed by the co-
operative bank will not work or render any service of similar type or
nature for any other bank, co-operative society, nidhi, friendly society
or association etc. and the pigmy deposit collector shall not appoint
any sub-agent for collecting the amount or for doing any other work as
mentioned in the agreement.
5. Considering the above facts, the findings recorded by the
Assistant Provident Fund Commissioner and the proposition laid down
in the above referred judgment, I see no reason to interfere with the
impugned order.
The petition is dismissed. In the circumstances, the parties
to bear their own costs.
By the order passed on 07-06-2006, while granting interim
stay as prayed for by the petitioner/co-operative Bank, this Court
imposed condition that the petitioner/Co-operative Bank shall give
bank guarantee for the sum of Rs.36,00,000/-.
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The petitioner shall pay/deposit the amount payable as
per the impugned order within one month, failing which the
respondent will be at liberty to encash the bank guarantee.
JUDGE
adgokar
