MMTC LIMITED Vs. EMPLOYEES PROVIDENT FUND

JUDGEMENT

(1.) By the present petitions the Petitioner impugns the identical orders passed by the Employees Provident Fund Appellate Tribunal dismissing the appeals of the Petitioner against the order of the Assistant Provident Fund Commissioner under Section 7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (in short "the EPF and MP Act?) directing the Petitioner to pay the employer?s contribution. The issue involved in the present petitions is whether the workers employed in the canteen fall within the definition of the "employee? of the Petitioner Company as defined under Section 2 (f) of the EPF and MP Act.

(2.) Briefly the facts giving rise to the filing of the present petitions are that a complaint was filed by the working President of the Canteen Mazdoor Sabha, that is, the Union alleging non-coverage of the canteen workers under the EPF and MP Act. On receipt of the complaint the Assistant Provident Fund Commissioner initiated proceedings under Section 7A of the EPF and MP Act.

(3.) The Petitioner in its reply submitted, which are also the contentions of the Petitioner before this Court, that the canteen is run by the cooperative society and the cooperative society engages its own employees, determines terms and conditions of the service of the employees and even takes disciplinary action against them, the canteen does not belong to the company and the cooperative society is a contractor. The Petitioner is neither the employer nor the principal employer of the canteen workers. It is further stated that an industrial dispute is pending adjudication before the Industrial Tribunal with regard to the demand of Canteen Mazdoor Sabha members to treat them at par with the MMTC employees and grant them the same status and benefits. The learned Assistant Provident Fund Commissioner or the Appellate Tribunal could not have decided the issue that the Petitioner was liable to pay the employer?s contribution of the provident fund without adjudication by the Industrial Tribunal. In the industrial dispute raised an award has been passed against the Union on 7 th August, 2002. It is further contended that during the pendency of the present petitions a settlement dated 21 st July, 2010 was executed between the Cooperative Society and the canteen workers and as per the settlement arrived at it was accepted that the canteen workers were employees of the Cooperative Society and had no relation with the Petitioner. The settlement also provided that the Cooperative Society shall comply with the provisions of the EPF and MP Act and deposit the contributions and other charges with the Provident Fund Authority and would apply to the Provident Fund Authority for allotment of the code. The Cooperative Society applied for the code with the Provident Fund Authorities however, it was erroneously rejected. Though the case of the Union before the Appellate Tribunal was that the society was a contractor and the Petitioner was the principal employer however, no evidence was led in this regard. During the inquiry no contract between the alleged principal employer and the Cooperative Society was proved. The learned Appellate Tribunal failed to notice that to be a principal employer, it was a condition precedent that the canteen was owned by the company and there was a contract whereby the Cooperative Society was appointed as a contractor. The Tribunal did not go into either of these questions. The Tribunal also failed to consider the award of the Industrial Tribunal wherein the parties led oral and documentary evidence. There is no finding of fact that the Cooperative Society is a contractor. The only reason why the Assistant Provident Fund Commissioner came to the conclusion that the Petitioner had overall control in the matter of running of canteen, payment of wages, fixing of the rates etc. was because the Petitioner was paying the subsidy. The purpose of the said subsidy was only to subsidies the expenses of the Society so that they could sell the eatables at a cheaper rate. Hence the impugned order of the Appellate Tribunal and the Assistant Provident Fund Commissioner be set aside. Reliance is placed on Royal Talkies, Hyderabad and others vs. Employees State Insurance Corporation through its Regional Director, Hill Fort Road, Hyderabad, 1978 AIR(SC) 1478