Madras High Court
The Assistant Provident Fund ... vs The Joint Registrar/Special ... on 22 July, 2021
W.P.No.20952 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.07.2021
:CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.No.20952 of 2012
The Assistant Provident Fund Commissioner
Employees Provident Fund Organisation
Regional Office,
Bhavishya Nidhi Bhavan
Dr. Balasundaram road,
Coimbatore-641018. ... Petitioner
-vs-
1. The Joint Registrar/Special Officer
M/s. The Coimbatore District Central Co-op Bank Ltd.,
State Bank Road,
Coimbatore.
2. The Presiding Officer,
Employees Provident Funds Appellate Tribunal,
7th Floor, 60 Skylark Buildings,
Nehru Palace, New Delhi- 110 019. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India, praying for
issuance of a Writ of Certiorari to call for the records of the 2nd respondent relating to
the order passed in ATA.No.849(13)2011 dated 07.05.2012 in so far as it allowed the
appeal partly in holding that jewel appraisers are not employees of the 1st Respondent
Bank and quash the same.
For Petitioner : Mr.J.Satyanarayana Prasad
For Respondents : Mr.R.Manoharan (R2)
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W.P.No.20952 of 2012
ORDER
The Petitioner has come forward with the present Writ Petition challenging the
order of Employees Provident |Fund T|ribunal dated 07.05.2012, by which the Tribunal
held that Jewel Appraisers does not fall within the definition of employee under Section
2(f) of the Act and as such no PF liability can be fixed on the appellant in respect of the
Jewel Appraisers and thereby partly allowed the Writ Petition.
2. Heard the learned counsel for the petitioner as well as the learned counsel
appearing for the second respondent.
3. The learned counsel appearing for the petitioner submitted that the second
respondent while coming to the conclusion that the jewel appraisers are not employees
failed to note that the jewel appraisers have to report to duty and attend the bank during
the normal banking hours and do the job of the appraisal and further the Jewel loan is
given throughout the year and on all working days and therefore they cannot take leave
without prior permission of the Bank and therefore it cannot be said that they are not the
employees of the Bank. He further submitted that before sanctioning/granting of jewel
loan, the quality and weight of the jewel to be pledged will be necessarily assessed and
weighed by the Jewel Appraisers and the said work has to be done in the presence of the
bank officials and therefore the fact that they are the employees of the bank cannot be
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W.P.No.20952 of 2012
denied. He relied on the Judgment of the Hon'ble Supreme Court in the case of Indian
Banker Association Versus Workmen of Syndicate Bank and Ors reported in AIR
2001 SC 946, wherein the Hon'ble Supreme Court while holding that the deposit
collectors of the bank as the employees have held that the commission received by them
are nothing but wages and therefore the remuneration paid by the appellant bank to the
Jewel appraiser is nothing but wage, which may vary from month to month depending
on the productivity and thus the nomenclature of the term "Commission" is in reality
wages paid to the jewel appraisers for work done by them and therefore the learned
counsel for the petitioner submitted that the commission which is said to be paid to the
jewel appraisers by the bank are nothing but wages and mere use of the word
"Commission" will not charge the nature and scope of employment. He therefore prays
to set aside the order of the second respondent.
4.Per contra, the learned counsel appearing for the first respondent Bank
submitted that the jewel appraisers are not drawing any wages and only getting
Commission and further they are not in regular employment of the Bank and the
Employees Provident Fund Act is applicable only to the persons falling in the category
of 'Employee' as defined under Section 2 (f) of the EPF & MP Act and not to those who
are employed casually or render their services as and when desired by the Bank and
therefore at no stretch of imagination they can be treated as employees, moresoin the
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W.P.No.20952 of 2012
light of the Judgment of the Hon'ble Supreme Court reported in the case of The
Regional Provident Fund Commissioner Versus T.S.Hariharan reported in 1971 1
LLJ 416, . It is further submitted that the Enforcement Officer have gone into the box
and submitted the prime activities of the bank, which includes issuance of jewel loans
and out of the charges collected from the customers 30% of the amount is retained by
the Bank and the remaining portion of 70% alone is paid to the Jewel appraisers and it
was also deposed that the entire transaction is taking place every day and during the
normal banking hours, the presence of the jewel appraiser is indispensable and
inevitable and in his absence, he will be substituted by the appraiser(s) from other
branches of the same bank. Therefore, the learned counsel for the first respondent
submitted that the jewel appraisers are not regular employees.
5. He further relied upon the Judgment of the Hon'ble Supreme Court in the case
of Indian Overseas Bank Versus Workmen reported in (2006) 3 SCC 729, wherein the
Hon'ble Supreme Court held that jewel appraisers are not regular employees.
6. Heard both sides. Perused the record.
7. The only issue that has to be decided in this Writ Petition is whether the Jewel
appraisers are regular employees of the first respondent/bank.
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W.P.No.20952 of 2012
8. For the sake of convenience Section 2(f) of the Employees Provident Fund
Act 1952 and Section 2 (S) and 2 (rr) of the Industrial Disputes Act 1947 are extracted
hereunder:
Section 2 (f) of the EPF Act.
2 (f) “employee” means any person who is
employed for wages in any kind of work, manual or
otherwise, in or in connection with the work of [an
establishment] and who gets his wages directly or
indirectly from the employer,[and includes any person,-
● employed by or through a contractor in or in
connection with the work of the
establishment;
● engaged as an apprentice, not being an
apprentice engaged under the Apprentices Act,
1961 (52 of 1961) or under the standing orders
of the establishment];
Section 2 (S) and 2 (rr) of the Industrial Disputes Act 1947
2 (s) “Workman” means any person (including
an apprentice) employed in any industry to do any
manual, unskilled, skilled and technical, operational,
clerical or supervisory work for hire or reward,
whether the terms of employment be express or implied,
and for the purposes of any proceeding under this Act
in relation to an industrial dispute, includes any such
person who has been dismissed, discharged or
retrenched in connection with, or as a consequence of,
that dispute, or whose dismissal, discharge or
retrenchment has led to that dispute, but does not
include any such person __
(rr) “wages” means all remuneration capable
of being expressed in terms of money, which would, if
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W.P.No.20952 of 2012
the terms of employment, expressed or implied, were
fulfilled, be payable to a workman in respect of his
employment or of work done in such employment, and
includes—
(i)Such allowances (including dearness allowance) as
the workman is for the time being entitled to;
(ii) the value of any house accommodation, or of supply
of light, water, medical attendance or other amenity or
of any service or of any concessional supply of food-
grains or other articles;
(iii) any travelling concession;
(iv) any commission payable on the promotion of sales
or business or both;]
but does not include--
(a)any bonus;
(b) any contribution paid or payable by the employer to
any pension fund or provident fund or for the benefit of
the workman under any law for the time being in force;
(c) any gratuity payable on the termination of his
service;]
9. A reading of definition of 'Employee' under Section 2 (f) of the EPF Act and
Section 2 (S) and 2 (rr) of the Industrial Disputes Act 1947 are not pari materia. If
a person is employed in connection with the work of the employer and who gets his
wages directly or indirectly from the employer, he shall be an employee within the
meaning of Section 2 (f) of the EPF Act, 1952. Since, there is inclusion clause in the
definition of employee, moreso if the work is in connection with the work of workmen,
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W.P.No.20952 of 2012
then the employer will have to pay the contribution.
10. Hence, I find the order of the Tribunal holding that the Jewel appraisers does
not fall within the definition of employee under Section 2 (f) of the EPF Act is not
correct. They may not be workmen under the provisions of Section 2 (S) and 2 (rr) of
the Industrial Disputes Act 1947 but the workmen under Section 2 (f) of the EPF Act,
1952 and therefore the finding of the second respondent is liable to be interfered with.
11. In view of the aforesaid position, the order passed by the second respondent
dated 07.05.2012 is set aside and accordingly the same is set aside and the matter is
remanded back to the second respondent for fresh adjudication on merits and in
accordance with law. Now that the Central Government Appellate Tribunal constituted
for the purpose of deciding EPF matters, the Central Government Appellate Tribunal,
Chennai is expected to decide the matter within a period of six months from the date of
receipt of a copy of this order. This Court makes it very clear that the period during
which this Writ Petition is pending shall not attract any interest or damages for the
contributions that may be liable to be paid.
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W.P.No.20952 of 2012
9. In the result, this Writ Petition is allowed. No costs.
22.07.2021
Index: Yes / No
Speaking order /Non speaking order
arr
To
1. The Joint Registrar/Special Officer
M/s. The Coimbatore District Central Co-op Bank Ltd.,
State Bank Road,
Coimbatore.
2. The Presiding Officer,
Employees Provident Funds Appellate Tribunal,
7th Floor, 60 Skylark Buildings,
Nehru Palace, New Delhi- 110 019.
3. The Central Government Appellate Tribunal
Chennai.
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W.P.No.20952 of 2012
S.VAIDYANATHAN,J.,
arr
W.P.No.20952 of 2012
22.07.2021
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