Partners of a partnership firm cannot be considered as employees for the purpose of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952, as they are not entitled to receive remuneration for taking part in the conduct of the business unless otherwise agreed upon.

( 1 ) THIS appeal is directed against a judgment and order dated 10. 3. 2000 passed by a learned single Judge of this Court, whereby and where under the writ application filed by the appellants herein was dismissed.

( 2 ) THE fact of the matter shorn of all unnecessary details is as follows. A partnership business was started, wherefore a deed of partnership was executed in the year 1984. The partnership business related to printing and composing work. Admittedly, a statement of number of employees, workers and labourers from January 1986 to July 1998 had been filed, from a perusal whereof it appears that during all the periods, the number of employees was less than 20. However, the five partners of the partnership firm were also getting salary.

( 3 ) ON or about 23. 8. 95, the said partnership business was converted into a private limited company. A proceeding under the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter for the sake of brevity referred to as the said Act) was initiated against the said company, and an assessment was made for the period 1984-95, inter alia, holding that there were 16 employees on the roll of the establishment, and keeping in view the fact that 5 partners had also been getting salary, the number of employees having exceeded 20, they were liable to pay provident fund in terms of the provisions of the said Act. The writ application was filed questioning the said order dated 28. 5. 99.

( 4 ) THE learned trial Judge, inter alia, noticed that 5 partners had been getting salary, and proceeded to hold that the partners were also employees.

( 5 ) MR Sanyal, learned counsel appearing on behalf of the appellants, inter alia, submitted that a distinction has to be drawn between partners of a partnership firm and directors of a private limited company. According to the learned counsel, whereas keeping in view the fact that a partnership firm is not a juristic person, but merely a conglomeration of partners over which each partner has a share in the profit thereof to the extent of his share in terms of the deed of partnership, a company incorporated and registered under the Companies Act, is a juristic person and can sue and be sued in its own name. Such a juristic person being a body corporate can own property in respect whereof the directors cannot claim any right, title and interest. Mr. Sanyal submitted that if a partner, who is getting salary in terms of the deed of partnership, is treated to be an employee, the same would lead to an absurdity, in as much as, in such a case there would not exist any relationship of employer and employee, as all the partners are employers in relation to the employees who had been employed by them. In support of the aforementioned contention, strong reliance has been placed by Mr. Sanyal upon a decision of the Supreme Court in Regional Director, Employees' State Insurance Corporation v. Ramanuja Match Industries, reported in AIR 1985 SC 278.

( 6 ) MR. Gupta, learned counsel appearing on behalf of the respondents, on the other hand, submitted that the writ application was not maintainable, in as much as, the appellants had a remedy by way of appeal in terms of section 7 (1) of the said Act. In support of the said contention, reliance has been placed in Bengal Ingot Company Ltd. v. The Regional Provident Fund Commissioner reported in 1995 (II) CHN 457. Mr. Gupta would urge that in view of the fact that now the appellant has been converted into a limited company, and the erstwhile partners have become directors and are being paid their salaries, they would come within the purview of the definition 'employee' as contained in section 2 (9) of the said Act. In support of the said contention, reliance has been placed on Employees' State Insurance Corporation v. Apex Engineering Pvt. Ltd. , reported in 1998 (I)LLJ 274.

( 7 ) IN the instant case, the basic fact of the matter is not in dispute. As noticed hereinbefore, admittedly the respondent aut

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