The definition of 'employee' under the Employees’ Provident Funds Act includes temporary employees, mandating employer contribution regardless of employment type.

JUDGMENT

1. The petitioner is a District Co-operative Bank, challenging the Ext.P4 Order of the Employees’ Provident Fund Appellate Tribunal. The Respondent No.2 passed an Order dated 30.07.2002 under Section 7A of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as ‘the Act’) demanding a contribution of Rs.12,61,901.25 for the period from 06/1996 to 06/2000 with respect to 231 temporary employees employed by the petitioner. The petitioner filed a Review under Section 7B of the Act, and the Respondent No.2 passed Ext.P2 Order reducing the contribution to Rs.9,32,214.00 for 162 employees. The petitioner challenged the Ext.P2 Order before the Tribunal by filing an appeal, and the Tribunal passed the impugned Ext.P4 Order dismissing the appeal.

2. I heard the learned Counsel for the petitioner, Sri. V.

Krishna Menon, and the learned Standing Counsel for the Respondents, Sri. Thomas Mathew Nellimoottil.

3. The learned Counsel for the petitioner contended that the said 162 employees are not regular employees as they were sponsored temporarily by the Employment Exchange on account of the policy of the State Government, and hence, they could not be treated as employees of the petitioner. The petitioner was under the bona fide impression that these employees were not covered under the Provident Fund, and hence, no contribution was recovered from the said employees. The proceedings were initiated after the disputed period, and hence, the petitioner is not in a position to recover the employees’ contribution. The employees have already left the establishment, and they will not benefit from the payment of contribution to the Provident Fund. The Tribunal ought to have allowed the appeal, setting aside the Ext.P2 Order. In support of his contentions, the learned Counsel for the petitioner relied on the decision of the Calcutta High Court in Regional Provident Fund Commissioner, W.B. v.

Superintendence Co. of India [ 2011 Supreme (Cal) 94 ]

4. On the other hand, the learned Counsel for the respondents contended that it is the liability of the petitioner/employer to deduct the employees’ compensation and to pay the same to the fund along with the employer’s compensation. The definition does not distinguish between a regular employee and a temporary employee. The Tribunal is perfectly justified in dismissing the appeal.

5. I have considered the rival contentions.

6. The employment of the aforesaid 162 persons as employees of the petitioner is admitted by the petitioner. The contention is that the nature of employment is temporary, and they could not be treated as regular employees in order to pay contribution for them. The definition of ‘employee’ under Section 2 (f) of the Act provides that when a person is employed for wages in any kind of work, manual or otherwise, directly or indirectly for the employer, he will become an employee. It does not exclude the temporary employees from the definition under (f). The employer is liable to pay contribution as per Section 6 of the Act. The learned counsel for the respondents invited my attention to Paragraph 36 of the Employees’ Provident Fund Scheme, in which the duty is cast upon the employer to file regular return showing the employees qualifying to be members of the Fund. The petitioner has filed return without including the aforesaid 162 temporary employees with respect to whom the contribution is demanded. It is on account of the default on the part of the petitioner, the petitioner could not recover the employees’ contribution from the employees. The inability of the petitioner to recover the employees’ contribution from the employees and the leaving of employees from the petitioner’s establishment are not re