Bombay High Court
Bhandara District Central Co-Op. ... vs Chairman, Employees Provident ... on 26 September, 2017
Bench: S.C. Gupte
Judgment 1 wp993.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 993 OF 2015
Bhandara District Central Co-operative Bank Ltd.
Co-operative Society duly registered under the
provisions of Maharashtra Co-operative Societies
Act, 1960, through its General Manager,
Bhandara, Tahsil & District : Bhandara.
.... PETITIONER.
// VERSUS //
1. The Chairman, Employees Provident Fund,
Appellate Tribunal, New Delhi.
2. The Assistant Provident Fund Commissioner,
132-A, Near Saint Tukdoji Square, Raghuji
Nagar, Nagpur, Tahsil & District : Nagpur.
.... RESPONDENTS
.
___________________________________________________________________
Shri A.M.Ghare, Advocate for Petitioners.
Shri R.S.Sundaram, Advocate for Respondent Nos.1 & 2.
___________________________________________________________________
CORAM : S.C.GUPTE, J.
DATED : SEPTEMBER 26, 2017.
ORAL JUDGMENT :
1. Heard learned counsel for the parties.
2. The controversy in the present matter concerns Daily Deposit
Collection Agents appointed by the petitioner bank who go by the
Judgment 2 wp993.15.odt
nomenclature "Pigmy Agents". These agents have been appointed under a
contract which sets out the terms of their engagement. The question before
the Employees Provident Fund Authority, namely, Regional Provident Fund
Commissioner-II, in the proceedings under Section 7A of the Employees
Provident Fund and Miscellaneous Provisions Act, 1962 ("Act"), was whether
or not these Pigmy Agents are covered by the definition of "employee" under
Section 2(f) of the Act. Relying on the judgment of the Supreme Court in the
case of Indian Banks Assocn. Vs. Workmen of Syndicate Bank, reported in AIR
2001 SC 946, the Provident Fund Commissioner held these Pigmy Agents to
be the employees of the petitioner bank. Based on the material placed before
the Provident Fund Commissioner, in the light of the judgment of the
Supreme Court in Indian Banks Association's case (supra), the Commissioner
came to the conclusions (1) that the Deposit Collectors were working in
connection with the work of the establishment; (2) that the Deposit
Collectors were being paid directly by the bank in connection with the work
in the establishment, and (3) that there was a distinct and clear relationship
of employer and employee between the Bank and the Deposit Collectors.
Based on these findings, the Commissioner concluded that the Deposit
Collectors were, in fact, employees within the meaning of Section 2(f) of the
Act.
3. The judgment of the Hon'ble Supreme Court in the Indian Bank
Assocn.'s case was passed in the context of the definition 'workman' under the
Industrial Disputes Act. On the basis of the terms of engagement of the
Judgment 3 wp993.15.odt
Deposit Collectors in that case, the Court concluded that there was a
relationship of master and servant between the deposit collectors and the
concerned bank. This judgment was considered by a Division Bench of our
Court in the case of Pachora Peoples' Co-operative Bank Vs. Employees
Provident Fund Organization. Though the Division Bench initially held that
the issue of Pigmy Agents or Deposit Collectors was no longer res integra and
there was a clear relationship of employer and employee between the
Deposit Collectors and the Bank, on a review of that judgment the Division
Bench laid down the various factors which must be considered by the
Employees Provident Fund Authorities, whenever a case of Pigmy Agents or
Deposit Collectors is brought before them with a view to see if these
depositors are employees of the concerned bank. The aspects on which the
Employees Provident Fund Authorities are expected to adjudicate in all such
cases are set out by the Division Bench in the following words:
"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?"
Judgment 4 wp993.15.odt
4. The impugned order of the Provident Fund Commissioner has
not dealt with many of these aspects. For example, there is no discussion as
to (i) whether the Pigmy Agents in this particular case are under an
obligation to work only for the petitioner bank or its branches and for no
others and (ii) whether or not these agents were permitted to work
elsewhere or undertake any other business, job or profession and (iii)
whether they were primarily dependent upon their work for the petitioner
bank.
5. Now that we have in place particular aspects of the inquiry, as
formulated by a Division Bench of our Court, it is in the interest of justice
that the matter is remanded to the Provident Fund Commissioner for a fresh
consideration in accordance with law including the judgment of our Court in
the case of Pachora Peoples' Bank Ltd. (Supra).
6. Rule is, accordingly, made absolute by quashing and setting
aside the impugned order of the Regional Provident Fund Commissioner and
remanding the inquiry under Section 7A of the Act to him for fresh
consideration in accordance with law, particularly keeping in view the
judgment of this Court in the case of Pachora Peoples' Co-operative Bank
Ltd.vs. Employees Provident Fund Organization, delivered on 11th January,
2017.
Judgment 5 wp993.15.odt
7. The Regional Provident Fund Commissioner shall hear the
parties and dispose of the inquiry within a period of three months of
communication of this order.
8. Either party may bring this order to the notice of the Regional
Provident Fund Commissioner. All parties to act on a copy of this order, duly
authenticated by the Sheristedar of this Court.
JUDGE
RRaut..
