The main legal point established in the judgment is the interpretation of the provisions of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952, particularly in relation to the definition of 'employee' and the application of the Act to trading and commercial establishments.

1. The petitioner is a registered Company under the Companies Act, 1956. They have filed the present writ petition, challenging an order of the second respondent Employees' Provident Fund Appellate Tribunal made in ATA.No.380(13)/2006, inasmuch as by the said order, the appeal filed by the petitioner was rejected and the order passed by the third respondent viz., Assistant Provident Fund Commissioner, Coimbatore, dated 29.03.2004 was confirmed and after setting aside the same, they seek to forbear the PF Department from applying the notification of Government of India, Ministry of Labour and Employment made in GSR 346 dated 07.03.1962 with effect from 23.12.2002 under the Schedule "trading and commercial" as it is contrary to the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 (for short PF Act) and run counter to Section 1(3)(a) and 1(3)(b) of the PF Act.

2. When the writ petition came up on 13.05.2010, this Court directed the learned Standing Counsel to take notice. Pending notice, an interim stay was granted. Thereafter on 05.08.2010, the writ petition was admitted. The interim order already granted stood extended without specifying any outer time limit.

3. On behalf of respondents 1 and 3, a counter affidavit dated Nil (September 2010) was filed. The petitioner had also filed a reply affidavit dated 01.06.2011.

4. Heard the arguments of Mr.S.Vaidyanathan, learned counsel for the petitioner and Mr.T.R.Sundaram, learned Standing Counsel appearing for respondents 1 and 3.

5. It is seen from the records, that by an order dated 29.03.2004, the third respondent informed the petitioner that the petitioner’s establishment namely M/s.Focussed Corporate Services (I) Private Limited engaged in a "trading and commercial", which is included in the Schedule I/classes of establishment was covered by the provisions of the PF Act. They were also informed that they had engaged more than 33 persons as on 23.12.2002. They must cover their establishment in terms of the PF Act and also with reference to their application number, they were allotted a code number being TN/CB/56709. They were directed to make contributions in terms of the provisions of the Act.

6. In the meanwhile, the petitioner filed a writ petition before this Court being W.P.No.21205 of 2004, seeking for a declaration that the application of the PF Act with effect from 23.12.2002 under the Schedule "trading and commercial" is contrary to the provisions of the PF Act. However, this Court by an order dated 27.04.2006 disposed the writ petition with a direction to the petitioner to file an appropriate appeal under Section 7I of the PF Act. It is pursuant to the said direction, the petitioner filed an appeal before the second respondent Tribunal.

7. It was the stand of the petitioner that the third respondent had unilaterally made application of the Act to the petitioner establishment and they are not coming under the Entry "trading and commercial". The said appeal was taken on file as ATA No.380 (13)/2006 by the second respondent Tribunal. After due notice to the third respondent, the appeal was dismissed by the Tribunal by an order dated 12.04.2010. Challenging the same, the present writ petition came to be filed.

8. The contention raised before the Tribunal as reflected in the impugned order was that the company was providing financial service to various banks. They have engaged agents, who were paid commission on the basis of their work and there was no master and servant relationship. The company had not engaged more than 20 persons. But the Tribunal observed that the order of the authority reveals that the petitioner had engaged 150 employees. Secondly, the contention that there is no employer and employee relationship was also rejected by referring to Section 2(f) of the PF Act, where the term ‘employee’ is defined. By the said definition, even a person who is engaged gets his wages directly or indirectly is also an employee and it also includes a