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SUPREME COURT OF INDIA
NAVIN SINHA, SURYA KANT, JJ.
M/S. PANTHER SECURITY SERVICE PRIVATE LIMITED – APPELLANT
VERSUS
THE EMPLOYEES’ PROVIDENT FUND ORGANISATION AND ANOTHER – RESPONDENT(S)
CIVIL APPEAL NOs.4434-4435 OF 2010
Decided on : 02-12-2020
Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 – Section 7A – Private Security Agencies (Regulation) Act, 2005 – Section 11 – Applicability of EPF Act to Private Security Agencies – Provisions of EPF Act are applicable to a private security agency engaged in expert service of providing personnel to its client, if it meets requirement of EPF Act – Appellant is engaged in specialised and expert services of providing trained and efficient security guards to its clients on payment basis – Contention that appellant merely facilitated in providing Chowkidars cannot be countenanced – Appellant is employer of such security guards and who are its employees and are paid wages by appellant – Merely because client pays money under a contract to appellant and in turn appellant pays wages of such security guards from such contractual amount received by it, it does not make client employer of security guard nor do security guards constitute employees of client – Appellant is squarely covered by Notification dated 17.05.1971 – Appeal dismissed and interim order restraining coercive steps for enforcement of demand notice vacated. (Paras 9, 12 and 13)
Facts of the case:
Appellant is engaged in the business of providing private security guards to its clients on payment basis. The appellant is registered under the Private Security Agencies (Regulation) Act, 2005. The appellant is aggrieved by order of High Court, affirming the order dated 28.07.2008 of Assistant Provident Fund Commissioner, Kanpur under Section 7A of Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 holding appellant liable for compliance with the provisions of the EPF Act and to deposit statutory dues within 15 days. The dues of the appellant as quantified by order dated 15.04.2009 are Rs.42,01,941/, and statutory interest under Section 7Q at Rs.30,44,224/-.
Findings of Court:
The provisions of the Act of 2005 make it manifest that the appellant is the employer of such security guards and who are its employees and are paid wages by the appellant. Merely because the client pays money under a contract to the appellant and in turn the appellant pays the wages of such security guards from such contractual amount received by it, it does not make the client the employer of the security guard nor do the security guards constitute employees of client. Appellant therefore is squarely covered by the Notification dated 17.05.1971.
Result : Appeals dismissed.
JUDGMENT :
NAVIN SINHA, J.
The appellant is engaged in the business of providing private security guards to its clients on payment basis. The appellant is registered under the Private Security Agencies (Regulation) Act, 2005 (hereinafter referred to as “the Act of 2005”). The appellant is aggrieved by the order of the High Court, affirming the order dated 28.07.2008 of the Assistant Provident Fund Commissioner, Kanpur under Section 7A of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as “the EPF Act”) holding the appellant liable for compliance with the provisions of the EPF Act and to deposit statutory dues within 15 days. The dues of the appellant as quantified by order dated 15.04.2009 are Rs.42,01,941/-, and statutory interest under Section 7Q at Rs.30,44,224/-.
2. Shri S. Sunil, learned counsel for the appellant submitted that the appellant was not covered by G.S.R. No.805 dated 17.05.1971 issued under Section 1(3)(B) of the EPF Act, since it was not engaged in rendering any expert services. It merely facilitated in providing Chowkidars to its clients at the request of the latter. The appellant only levelled a service charge for facilitation. The salary was paid to the Chowkidars by the client who engaged their services. The appellant had only 5 persons on its rolls. The EPF Act was therefore not applicable to it. Placing reliance on Section 2(e) (ii) and (f) of the EPF Act it was submitted that since the salary was paid by the client and who had the ultimate control over the security guards deployed with them, the appellant was not the employer of these security guards and neither were they employees of the appellant. Reliance was placed on Krantikari Suraksha Rakshak Sanghatana vs. Bharat Sanchar Nigam Limited and others, (2008) 10 SCC 166 and Saraswath Films vs. Regional Director, Employees’ State Insurance Corporation, Trichur, (2010) 11 SCC 553.
3. Ms. Divya Roy, learned counsel for the respondents submitted that the appellant renders expert services by way of providing trained personnel as security guards. It is fully covered by the Notification dated 17.05.1971. Despite repeated notices the appellant never furnished its wage and salary registers. The balance sheets seized for the financial years 2003-04, 2004-05, 2005-06 and 2006-07, during raid, reveals a very large amount paid towards salaries and wages running into several lacs which cannot be the wage bill of five employees. The letter dated 03.04.2001 written by the appellant to the New India Assurance Company Limited seeking Group Janta Personnel Accident Insurance Policy of one lac each was in respect of 79 security personnel. It was lastly submitted that the appellant did not approach the Tribunal under Section 7I of the EPF Act against the order passed under Section 7A, where all disputed facts could have been examined and instead filed a writ petition directly.
4. The writ petition and review application filed by the appellant were both dismissed.
5. We have considered the submissions on behalf of the parties and are of the opinion that the appeal lacks merit, for reasons to be enumerated hereinafter.
6. By G.S.R. No. 805 dated 17.05.1971 issued under Section 1(3)(b) of the EPF Act and published in the Gazette on 25.09.1971 the provisions of the EPF Act were made applicable to specified establishment and which reads as follows :
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