V. Chitambaresh, J.

The short question is as to whether Nithya Nidhi Deposit Collectors of the South Malabar Gramin Bank ('the Bank' for short) are 'employees' to whom the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 ('the Act' for short) apply?

2. The Regional Provident Fund Commissioner has by Ext.P8 order passed under Section 7A of the Act held that such deposit collectors are employees to whom the Act apply. The same is affirmed by Ext.P10 order in appeal by the Employees' Provident Fund Appellate Tribunal under Section 7 I of the Act. Exts.P8 and P9 orders are impugned in this writ petition by the the Bank contending that the deposit collectors are not 'employees' under the Act. It is the case of the Bank that no contribution is liable to be paid in respect of deposit collectors as per the Scheme framed under the Act.

3. I heard Mr.George Poonthottam, Advocate on behalf of the Bank, Mr.Thomas Mathew Nellimoottil, Standing Counsel on behalf of the Regional Provident Fund Organisation and Mr.K.Sasikumar, Advocate on behalf of the deposit collectors.

4. Section 2(f) of the Act defines 'employee' as follows:-

"employee" means any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment, and who gets, his wages directly or indirectly from the employer, and includes any person, -

(i) employed by or through a contractor in or in connection with the work of the establishment;

(ii) engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961 (52 of 1961) or under the standing orders of the establishment. (emphasis supplied) Section 2 (b) of the Act defines 'basic wages' as follows:-

"basic wages" means all emoluments which are earned by an employee while on duty or on leave or on holidays with wages in either case in accordance with the terms of the contract of employment and which are paid or payable in cash to him, but does not include -

(i) the cash value of any food concession;

(ii) any dearness allowance (that is to say, all cash payments by whatever name called paid to an employee on account of a rise in the cost of living), house-rent allowance, overtime allowance, bonus commission or any other similar allowance payable to the employee in respect of his employment or of work done in such employment;

(iii) any presents made by the employer.

(emphasis supplied)

Ext. P1 agreement of agency entered into between the Bank and the deposit collectors contains several terms and conditions and clause 15 thereof is as follows:-

15. The Bank shall subject to the Rules for the time being in force pay to the Agent commission at the rate/rates determined by the Board of Directors of the Bank from time to time. The Agent shall not be entitled to or claim any other amount either by way of commission, remuneration, honorarium allowances, benefits of any type or on any other reasons whatsoever. (emphasis supplied)

It is evident therefore that the deposit collectors are entitled to commission at the rates determined by the Bank from time to time. Such Commission would definitely form part of the emoluments earned by them in accordance with the terms of the contract of employment liable to be reckoned as 'basic wages'.

5. The deposit collectors are definitely employed in connection with the work of the Bank to qualify for becoming an 'employee'. The nature of work of deposit collectors has been succinctly stated in Indian Banks Association v. Workmen of Syndicate Bank and others [2001 (3) SCC 36] as follows:-

“25. Further, as seen from Section 2(rr) of the Industrial Disputes Act, the commission received by Deposit Collectors is nothing else but wage, which is dependent on the productivity. This commission is paid for promoting the business of the various banks.

26. We also cannot accept the submission that the banks have no control over the Deposit Collectors. Undoubtedly, the Deposit