- (1.) In this writ petition, the petitioner prays for an order for quashing the notice dated 11.2.2009 as contained in Annexure - P2; the direction dated 25.2.2009 as contained in Annexure - P5; the direction dated 24.3.2009 as contained in Annexure -P6; the direction dated 30.4.2009 and the order dated 24.6.2009 as contained in Annexure - P10. The only point that falls for consideration in this case is as to whether the initiation of the provisions of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 as against the petitioner was maintainable or not. The initiation of the proceedings commenced by the impugned notice dated 11.2.2009 as contained in Annexure - P2 and which, inter alia, called upon the predecessor-in-interest of the petitioner, namely, M/s. Hutchison Telecom East Ltd., to pay the amounts said to be payable by them in respect of M/s. Insmart Agencies Private Ltd, (covered under the Employees' Provident Fund and Miscellaneous Provisions Act, 1952) and who had failed to remit their dues said to be to the extent of Rs. 42,66,850/-.
(2.) According to Mr. Samaraditya Pal, learned Senior Counsel appearing for the petitioner, the notice to show cause dated 25.2.2009 would establish that the authorities have proceeded on the assumption that the petitioner was the principal employer of M/s. Insmart Agencies Private Ltd. It is however seen that it was a mere Direct Sales Agent of M/s. Hutchison Telecom East Ltd. and it was so appointed by an agreement dated 28.7.2004 and therefore, the said agency cannot be categorized or brought within the definition of the word "Employee" of the petitioner qua the aforesaid statute.
(3.) There appears to be substantial substance in what Mr. Pal has argued. The Long and Short Title of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 clearly lays down that the said beneficial legislation operates in an area when only employers and employees tread. It also operates where there is a master- servant relationship between an employer and an employee. The word "Employee" has been defined under section 2(f) and it clearly lays down that an "employee" would mean a person who is employed for wages and would obviously therefore mean that he would be answerable to the "employer" within the disciplinary folds/service conditions prescribed by its/ his employer. A Direct Sales Agent Agreement, by no stretch of imagination can bring an agency within the ambit of a service condition nor will it make the said agency answerable to disciplinary proceedings. It therefore cannot be equated to an "employee". That being the position, the assumption on the part of the authorities to apply the provisions of the said Act was therefore, totally irregular.;