The main legal point established is that the members of a Co-operative Society, being owners and shareholders, cannot be considered employees under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.

Vinod K. Sharma, J.

The petitioner has approached this Court with a prayer for issuance of a Writ in the nature of Certiorari, to quash the interim order ATA No. 113(13) 2003, directing the petitioner to deposit 25% of the ordered amount of Rs. 37,67,836 as pre-deposit u/s 7(O) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, dated 31.5.2012. The petitioner is a Co-operative Society registered under the Tamil Nadu Co-operative Societies Act. The Assistant Provident Fund Commissioner issued a notice to the petitioner calling upon them to deposit contribution of provident fund by treating the members of the Society to be the workers.

2. In response to the notice by the Assistant Provident Fund Commissioner, the petitioner took a stand that the members of the Society cannot be treated to be employees covered under the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. The Assistant Provident Fund Commissioner rejected the plea by holding that the members of the Society are employees, therefore, covered under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.

3. The petitioner, being aggrieved by the order passed by the Assistant Provident Fund Commissioner, availed the remedy of statutory appeal before the Employees' Provident Fund Appellate Tribunal.

4. The petitioner also moved an application for exemption to deposit the amount u/s 7(O) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, due to the financial constraint, and also for the reasons that the impugned order was prima facie without jurisdiction, as it imposed the liability on the petitioner with regard to the weavers, who are the members of the Society and not its employees.

5. The request of the petitioner has been partly declined, the appeal was ordered to be entertained subject to deposit of 25% of the amount determined.

6. The learned counsel for the petitioner challenged the impugned order, primarily on the ground that besides the fact that the petitioner is not in a position to deposit the huge amount of 25%, the impugned order is prima facie not sustainable in law, as the Assistant Provident Fund Commissioner wrongly held the members of the Society to be the employees, though they are the members constituting a Society and entitled to share in profit, who not the paid employees of the Society.

7. In support of his contention, the learned counsel for the petitioner placed reliance on a judgment of the Hon'ble Division Bench of this Court in Q 793, Madathupatti Weavers Co-operative Production and Sales Society, Ltd., (represented by its Q-793, Madathupatti Weavers Co-operative Production and Sales Society Ltd. Vs. Regional Provident Fund Commissioner and Others, (2003) 3 LLJ 795 , wherein, it has been held as under:

18. On merits, it is submitted that the appellant weavers co-operative society formed on the basis of one for all and all for one as a co-operative movement for the purpose of producing and selling the finished cloth. The members of the co-operative society cannot be construed as "employees" and the society also in turn cannot be construed as an "employer" and there is no such relationship between them. In the affidavit, it is stated that the society do not have looms of their own. The members, who are weaving through their own looms in their respective houses, are provided with yarn and they take yarn to their houses and they weave in their looms and bring it to the society as finished cloth. According to them, amount is paid for the cloth produced by them and there is no employer and employee or master and servant relationship between the members and the society. The society employed eight persons as their staff to maintain their records and other connected work. All the members of the society are shareholders and they formed the Board of Management. They elect the President and Vice-President among themselves. They share the profits, if any, among th