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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
AMIT B. BORKAR, J.
Central Board of Trustees and Others – Petitioners
Vs.
The Akola Janta Commercial Co-Operative Bank Ltd. – Respondent
Writ Petition No. 6188 of 2005
Decided On : 07-07-2022
Employees Provident Fund - Challenge to order under Articles 226 and 227 - Employees Provident Fund and Miscellaneous Provisions Act, 1952 - Section 2(f), Section 7(A) - The court discussed the applicability of the Act to Multi-State Co-operative Societies, the meaning of 'per incuriam', and the binding nature of previous judgments and statutory provisions. The court quashed the impugned order and remanded the dispute for inquiry under Section 7(A) of the Act of 1952.
Fact of the Case:
The petitioners challenged the order passed by the Employees Provident Fund Appellate Tribunal, New Delhi, arguing that the pigmy agent would not be considered an employee under Section 2(f) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952.
Finding of the Court:
The court quashed the impugned order and remanded the dispute back to the Assistant Provident Fund Commissioner for inquiry under Section 7(A) of the Act of 1952.
Issues: The issues involved the applicability of the Act to Multi-State Co-operative Societies and the meaning of 'per incuriam'.
Ratio Decidendi: The court discussed the meaning of 'per incuriam' and the binding nature of previous judgments and statutory provisions. It held that the judgment of the Co-ordinate Bench was not rendered in ignorance of the judgment of the Supreme Court or failed to notice any statutory provision.
Final Decision: The impugned order was quashed and set aside, and the dispute was remanded back to the Assistant Provident Fund Commissioner for inquiry under Section 7(A) of the Act of 1952.
JUDGMENT :
AMIT B. BORKAR, J.
1. Heard.
2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioners are challenging the order dated 29.08.2005 passed by the Employees Provident Fund Appellate Tribunal, New Delhi holding pigmy agent would not be employee within the meaning of Section 2(f) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (for short “the Act of 1952”).
3. Shri H.N. Verma, learned Advocate for the petitioners, submitted that issue involved in the present petition is squarely covered by the judgment of the learned Single Judge of this Court in Writ Petition No. 5154/2016 in the case of Sanmitra Urban Cooperative Bank Ltd. Vs. Assistant Provident Fund Commissioner, 2019 (6) Mh.L.J. 567. Therefore, he prayed for remanding the proceedings to the Provident Fund Commissioner for holding an enquiry under Section 7(A) of the Act of 1952 in the light of parameters laid down by the Division Bench of this Court in the case of The Pachora Peoples’ Co-operative Bank Ltd. Vs. The Employee Provident Fund Organization, 2014 (4) Mh.L.J. 436.
4. Shri R.L. Khapre, learned Senior Advocate submitted that the respondent-bank being registered under Multi-State Co-operative Societies Act, provisions of the Act of 1952 would not be applicable. Therefore, the judgment of the learned Single Judge of this Court in the case of Sanmitra Urban Co-operative Bank Ltd. (supra) would not be applicable to the facts of the present case. According to him, even otherwise, the judgment in Writ Petition No. 5154/2016 in the case of Sanmitra Urban Co-operative Bank Ltd. is per incuriam. It, therefore, does not apply to the facts of the present case. In support of his contention, he placed reliance on the following judgments:-
(i) Sanmitra Urban Co-operative Bank Ltd. Akola Vs. Assistant Provident Fund Commisisoner, Akola 2019 (6) Mh.L.J. 567
(ii) Director of Settlements, A.P. Vs. M.R. Apparao (2002) 4 SCC 638
(iii) The Pachora Peoples’ Co-operative Bank Ltd. Vs. The Employee Provident Fund Organization, 2014 (3) ABR 249
(iv) The Pachora Peoples’ Co-operative Bank Ltd. Vs. The Employee Provident Fund Organization, 2017 (2) Mh.L.J. 946
(v) Punjab National Bank Vs. Manjeet Singh, (2006) 8 SCC 647
(vi) Assistant General Manager Vs. K. P. Haridas, AIR Online 2019 SC 2109
(vii) State of Haryana Vs. Ranbir @ Rama, AIR 2006 SC 1796
(viii) Delhi Administration Vs. Manoharlal, AIR 2002 SC 3088
(ix) Anpal Singh Vs. State of U.P. AIR 2019 SC 5652
(x) Ravinder Kaur Grewal Vs. Manjit Kaur, AIR 2019 SC 3827
5. I have carefully considered the submissions made on behalf of both sides. Insofar as the contention of the petitioners that respondent-bank being registered under the Multi-State Co-operative Societies Act is concerned, whether the said bank is registered under the provisions of the Multi-State Co-operative Societies Act or not is the matter to be adjudicated by the Provident Fund Commissioner. Petitioners have placed on record the Registration Certificate of the respondent to demonstrate that Society is registered under the provisions of the Multi-State Co-operative Societies Act. The certificate was not placed before the Commissioner. Respondent has invited my attention to the Notification dated 10.02.2016 applying the provisions of the said Act to all banks employing 20 or more persons as the class of establishments.
6. In my view, this Court is not expected, for the first time, to conclusively adjudicate upon the issue of applicability of provisions of the said Act to Multi-State Co-operative Societies. The material in the form of registration certificate and notification dated 10.02.2016 are produced before this court. These documents were not available with Provident Fund Commissioner while passing impugned order. It is, therefore, necessary for Provident Fund Commissioner while adjudicating the rights of the respondent on merits that the issue of applicability of said act be decided .
7. Learned Senior Advocate for the r
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