- (1.) Both these writ applications have been filed by same petitioners Manikanchan Jewellers Private Limited and Jagadish Chandra Basak against same respondents Union of India and five others. In these matters, petitioners have challenged orders passed at the instance of respondents under Section 7-A of The Employees' Provident Funds and Miscellaneous Provisions Act, 1952 on different dates compelling the petitioner no. 1 company for deposit of Provident Fund dues in respect of its employees. Petitioners have contended that the goldsmith Karigars who work independently on the strength of their independent trade licences have been wrongly counted as employees of the company by the authority concerned. The petitioners have prayed for setting aside the impugned orders passed under Section 7 A of the Act. They have claimed that the Karigars work for their business establishment submitted individual affidavits supporting the case of petitioners but said affidavits were not considered in the proceedings under Section 7 A of that Act. Petitioners have claimed that the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 are not applicable for their establishment.
(2.) Respondents have contested both the writ applications. The maintainability of these writ applications have been vehemently challenged by respondents drawing my attention to the provisions laid down in Section 7-I regarding appeal before Tribunal. Learned Advocate for the respondents has argued that exercising writ jurisdiction this Court should not act as appellate forum. He has taken me to the definition of 'employee' in Section 2 (f) of the Act and has argued that as per said definition the Karigars who work in connection with the business establishment against remuneration are employees of the petitioner no. 1 company. Learned Advocate for the petitioners has argued that the petitioner company may come within the purview of Section 1 (3) (b) of the Act but in no way the goldsmith Karigars can be treated as employees. He has distinguished this case from the case decided by the Hon'ble Supreme Court of India in M/s. P.N. Patel and Sons and Others etc. Vs. Union of India and Others etc., 1987 AIR(SC) 447 which has been relied by the learned advocate for the respondents. He has submitted that the cited case relates to beedi manufacturing which is included in the Schedule 1 of the Act where the petitioners' business of gold manufacturing and gold trading is not listed. Petitioners' further case as per supplementary affidavit is that in case of Beedi manufacturing excepting raw-materials of employers nothing of the employee is required whereas the goldsmith Karigars manufacture finished goods using their own tools and ancillary materials of their own in addition to raw gold supplied to them.
(3.) Petitioners have prayed for setting aside the orders passed under Section 7 A of the Act. Respondents have prayed for dismissal of the writ applications.;