The need for sufficient evidence to establish the principal employer-employee relationship under the Employees' Provident Funds Act

K.L. Wadane, J.

1. The appellant aggrieved by the judgment and order dated 31.01.2008 passed by the learned Single Judge of this Court in Writ Petition No. 28 of 2006 has filed the above appeal.

2. The brief facts of the case may be stated as follows:

The appellant i.e. Goa Tourism Development Corporation is a Corporation registered under the Companies Act, 1956 having its office at Panaji and the appellant is engaged in the business of promoting tourism industry in the State of Goa.

3. The appellant owns buildings in the State of Goa wherein it is running hotel business. The shops in the said buildings are leased out by the appellant to the various licensees such as respondent nos. 3 to 13. The shops are leased out by public advertisement by inviting tenders. The lease period vary from one year to three years. On expiry of the lease period, there is change in the licensee depending upon the successful bidder. The licensee on succeeding in the tender obtained the required licensees under the various statures. They procure their own material and sources, their requirement financial as well as manual as their own. Even the licensees are independent businesses. They only paid the licensee fees to the appellant and there is no interdependence or functional integrity between the appellant and respondent nos. 3 to 13. As such, they are not dependent on each other for running their business.

4. The respondent no.1 issued notice to the appellant for assessment of dues in respect of the employees employed by the licensees. The appellant objected to the same on the ground that the employee of the licensees does not come within the definition of the term “employee” and, therefore, the appellant is not the employer in respect of the licensees employees.

5. The respondent no.1 without considering the issue raised by the appellant proceeded to hold that the appellant were liable to pay the contribution in respect of the employees of the licensees on the basis of certain clauses in the license agreement.

6. The appellant therefore filed an appeal before the Provident Fund Appellate Tribunal. The learned Tribunal held that the appellant are liable to comply with the provisions of the Employees' Provident Funds Act, 1952 in respect of the licensees employees relying upon the clause 10 of the license agreement which ensures that the licensee shall comply with all the statutes that may be applicable to them. The appellant therefore filed the Writ Petition before the learned Single Judge of this Court and the learned Single Judge vide judgment and order dated 31.01.2008 pleased to dismiss the appeal of the appellant upholding the findings of the Appellate Tribunal. Therefore, the present appeal.

7. We have heard Mr. V. Palekar, learned counsel appearing for the appellant and Mr. P. P. Singh, learned counsel appearing for respondent no.1. With the help of the learned counsel appearing for both the sides, we have perused the records. After hearing both the sides and upon scrutiny of the record, the following point arises for our determination.

POINT FOR DETERMINATION	FINDING
Whether the evidence on record is sufficient to hold that the appellant is the principal employer and the respondent nos. 2 to 13 are the employees within the meaning of definition of Section 2(e) and (f) of the Act?	No.

8. Mr. V. Palekar, learned counsel appearing for the appellant has argued that the appellant is having various premises which are let out to the respondent nos. 3 to 13 for promoting the activities/business of tourism in the State of Goa. By referring the contents of the lease agreement, Mr. V. Palekar, learned counsel appearing for the appellant has argued that the relation between the appellant and the respondent nos. 3 to 13 are lessor and lessee respectively but in any way it cannot be construed that the appellant is a p