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2019 Supreme(Del) 132
IN THE HIGH COURT OF DELHI AT NEW DELHI
ANU MALHOTRA, J.
Partha Sarathi Saha (Proprietor of M/s. Sri Krishna Automobiles) – Petitioner
Versus
Assistant Provident Fund Commissioner – Respondent
WP (C) No. 8466 of 2017, CM No. 34859 of 2017
Decided On : 07-01-2019
For the Petitioner: Mr. Abheek Saha.
For the Respondent: Mr. Satpal Singh.
The judgment establishes that an establishment employing 20 or more persons, including indirect employees employed through a contractor, falls within the ambit of the EPF & MP Act 1952.
Headnote:
Employees Provident Fund - Applicability of EPF & MP Act 1952 - Section 7A - [FACT OF THE CASE] The petitioner seeks to set aside the order dismissing the appeal against the order of the APFC, SRO, Agartala. The establishment was found to have employed 20 persons, including 3 security personnel indirectly through a service provider, and was held to be covered under the EPF & MP Act 1952. [FINDING OF THE COURT] The court found that the establishment fell within the ambit of the Act and dismissed the appeal. [ISSUES] The main issue was whether the establishment was covered under the EPF & MP Act 1952. [RATIO DECIDENDI] The court relied on the definition of 'employee' under Section 2(f) of the Act, which includes indirect employees employed through a contractor. The court also considered the balance sheet and payments made to the security personnel. [FINAL DECISION] The petition and accompanying application were dismissed.
ANU MALHOTRA, J.
1. The petitioner Mr. Partha Sarathi Saha, proprietor of M/s Sri Krishna Automobiles vide the present petition seeks the setting aside of the order dated 09.05.2017 of the Ld. Employees Provident Fund Appellate Tribunal, New Delhi in ATA No. 480 (2) 2013 vide which the appeal ATA No. 480 (2) 2013 filed by the petitioner herein against the order dated 01.07.2013 passed by the APFC, SRO, Agartala in Order No. NE/AGT/ENF/ 8209/7A/2012/13/3698 in proceedings under Section 7A of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the ‘Act’) was dismissed.
2. The facts put forth through the impugned order are to the effect:
“The Appellant establishment was brought under the purview of the Act w.e.f. 01.10.2012. The appellant being aggrieved, filed a Review Petition dated 06.11.2012 before the Assistant PF Commissioner, SRO, Agaratala, which was rejected. Thereafter, the appellant filed an application on 27.02.2013 before the APFC, Agaratala praying for initiation of inquiry under Section 7A of the Act and also to decide the applicability of the provisions of the Act to the appellant establishment. Accordingly 7-A Inquiry was initiated. The appellant contended before the APFC that the establishment was employing 17 persons and two security personnel from M/s Brave Security Private Service which was subsequently re-named as M/s New Brave Security Private Service. It was contended that the Security personnel were out sourced from M/s New Brave Security and their salaries were not being paid from the appellant establishment. Therefore, they should not be considered as employees of the establishment.
The EO representing the department submitted that the establishment was employing 17 employees, three security personnel and one Sweeper.
The EO submitted that as per the Profit & Loss Account and Balance Sheet of the establishment for the year 2010-11, the Security personnel were being paid from the appellant establishment and therefore, they should be considered as employees of the appellant establishment.
Upon consideration of the submissions and depositions made on behalf of the appellant-establishment and the EC's submissions and after persuing the documents produced by the parties, the APFC came to a finding that the establishment employed 17 persons directly and three security personnel indirectly through M/s New Brave Security Private Service during October 2010. Therefore, the establishment employed 20 persons and thus provisions of the EPF & MP Act 1952 will apply to the appellant establishment w.e.f. 01.10.2010 under Section 1 (3)(b) of the Act.”
3. The order dated 01.07.2013 of the Assistant Provident Fund Commissioner, SRO, Agaratala in relation to the enquiry conducted in terms of Section 7A (a) of the ‘Act’ in respect of the petitioner through Sri Krishna Automobiles indicates that a notice no. NE/AGT/ENF/8209/7A/12-13/3730 dated 05.03.2013 was issued to the petitioner establishment directing the employer to appear in person or through an authorized representative on 19.03.2013 and present the case in as much as the petitioner disputed the applicability of the ‘Act’ to the establishment Sri Krishna Automobiles and moved an application dated 27.02.2013 to decide the applicability of the ‘Act’ to the establishment under Section 7A (a) of the Act.
4. Documents received during the enquiry by the APFC/SRO/Agaratala were to the effect:
(i) Investigation Report for applicability dated 30.08.2012.
(ii) Letter of Enforcement Officer dated 11.04.2012 and 01.06.2012 issued to Shri Partha Sarathi Saha.
(iii) List of employees of Sri Krishna Automobiles for Sep. 2010 to Oct. 2010.
(iv) Letter from the proprietor of New Brave Security Pvt. Services issued to Regional P.F. Commissioner dated 28.08.2012 intimating the employment of 3 (three) employees.
(v) Letter of Shri Partha Sarathi Saha issued to the Enforcement Officer dated 17.04.2012.
(vi) Letter of Shri Partha Sarathi Saha iss
