- (1.) CHALLENGE in the present writ petition is to the order dated 28.06.2010 (Annexure P1) whereby the Appellate Tribunal dismissed the appeal of the petitioner -Establishment and upheld the order dated 16.07.2008 (Annexure P2) whereby a finding was recorded that respondent No.4 -Sh H.K.Sood was working as an employee from 20.11.1995 to 31.12.2007 and was entitled for the membership of the Provident Fund from the due date and the petitioner -Establishment was directed to deposit its share of Provident Fund and the like dues. The subsequent order dated 26.12.2008 (Annexure P3), passed by respondent No.2, whereby the amount was determined as Rs. 2,27,546/ - was also subject matter of challenge along with the order whereby the review application was dismissed by the said authority on 11.02.2009 (Annexure P4).
(2.) THE controversy, in nutshell, is that respondent No.4 - Sh H.K.Sood was appointed as Sales Advisor on 16.11.1995, by the petitioner -Company, for a consolidated sum of Rs. 4500/ - per month, as per Annexue P5 and it was mentioned in the said letter that he was not in permanent employment with the company. The said appointment, which was, thereafter, mentioned as a retainership, was extended on various occasions and retainership fees was revised to Rs. 5000/ - per month vide letter dated 10.05.1997. On 30.05.1998, it was revised to Rs. 6500/ - per month and on 01.05.1999, to Rs. 7500/ - per month and similarly, on 01.06.2000, to Rs. 8000/ - per month and eventually in the year 2007, the said respondent was getting Rs. 16,000/ -, as retainership plus entitlement to local conveyance to the tune of Rs. 3,500/ - per month and re -imbursement of medical expenses, not exceeding Rs. 12,000/ - per annum. That due to a dispute between respondent No.4 and the petitioner -Company, a complaint dated 17.03.2008 was filed by him with the Provident Fund authorities that he was not provided provident fund membership and not enrolled as a member and accordingly, notice was issued by the authorities, calling the petitioner -Company to attend the enquiry proceedings.
(3.) THE plea taken by the petitioner -Company was that respondent No.4 was a retainer and received a particular amount, every month, for his services rendered. However, the Regional Provident Fund Commissioner, after examining the documents on record and hearing the submissions, rejected the plea on the ground that the Establishment had not submitted the required documents, relating to the year 1995 till April, 2003, regarding the statement of accounts, making payment to the said respondent. Accordingly, the petitioner -Company was directed to deposit Provident Fund and like dues, within a period of fortnight. The amount was assessed on 26.12.2008, as a sum of Rs. 2,27,546/ - in exercise of the powers under Section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for short, the 'EPF Act') for a period from 20.11.1995 to 31.12.2007. A review application was filed before the said authority which was dismissed on 11.02.2009. Resultantly, the appeal was filed before the Appellate Tribunal, which rejected the plea of the petitioner -Company on the ground that definition of an employee under Section 2(f) of 1952 Act is very wide and covers any employment, through a contractor and even an apprentice, engaged under the Apprentices Act, 1961. The submission that there was no control over the retainer was also rejected and the said respondent was held to be entitled to the benefit of the EPF Act.;