- (1.) Heard learned counsels.
(2.) The petitioner Industrial Unit is aggrieved by the order Annex.11 dt. 27.12.2010 passed by the Regional Provident Fund Commissioner-II Jodhpur and appellate order Annex.13 dt. 08.09.2011 passed by Employees' Provident Fund Appellate Tribunal New Delhi, Camp at Jaipur holding that the petitioner Unit is covered by the provisions of EPF Act, 1952 and since number of employees found at the time of survey were more than 20, it was covered by the provisions of the said Act and was liable to pay provident fund contribution in respect of such 20 workman.
(3.) Learned counsel for the petitioner, Mr. K.K. Shah submitted that from the evidence produced before the authorities concerned, only 15 employees were regular employees of the petitioner Unit and remaining 5 persons were casual labours doing masonry work in the industrial unit and they could not fall within the definition of 'workman' for the purpose of determining whether the petitioner unit falls within the definition of 'establishment' as defined under Sect. 1(3)(a) of the said Act. He relied upon the Full Bench decision of this Court in the case of Bikaner Cold Storage Company, Bikaner vs. Regional Provident Fund, Commissioner, Employees' Provident Fund, Raj. in which the Full Bench of this Court held as under:- "Mere casual or temporary persons employed in an establishment, not connected with the normal or regular work of such establishment, cannot be counted for the purpose of determining as to whether the establishment was governed by the provisions of clause (a) of sub-sec.(3) of sec.1 of the Act. But it is also not necessary that only the workmen who are permanent employed and whose names are borne on the muster rolls of the factory should alone be considered for the aforesaid purpose. The number of persons, who are ordinarily regularly employed in the establishment, should be counted for the purposes of sec.1 (3)(a) of the Act, as distinct from merely temporary or casual employees engaged for some abnormal or emergent purpose other than the normal work of such establishment. It shall naturally depend upon the facts of each case to find out as to whether the so called temporary workmen were regularly employed in connection with the normal and usual course of business of that establishment or they were engaged in the performance of some work which h ad no relation with the normal and regular course of business of the establishment. Applying the aforesaid principles to the facts of the present case, we find that out of 21 persons, who were said to have been employed on 18.03.1964 in the factory of the petitioner, 8 persons were merely temporary labourers employed for the purpose of carrying on the repairs of the factory building and it cannot be held that they were employed for the normal business of the establishment. Even if casual or temporary workers are engaged occasionally or intermittently to meet some temporary expediency or unusual or emergent situation, such temporary or casual workmen cannot be considered to be employees of the concern for the purpose s of sec.1(3) (a) of the Act.";