HINDUSTAN LEVER LIMITED Vs. ASSISTANT PROVIDENT FUND COMMISSIONER

JUDGEMENT

(1.) The petitioner has challenged the order passed by the Assistant Provident Fund Commissioner on 17th October, 2003 by which the Assistant Provident Fund Commissioner has determined the liability of the petitioner under Section 7-A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as "the Act of 1952"). The petitioner has challenged the show cause notice dated 2nd/3rd June, 2003 which was issued by the Assistant Provident Fund Commissioner requiring the petitioner to attend the inquiry under Section 7-A of the Act of 1952.

(2.) The case of the petitioner is:

(3.) Shri Naik, the learned Advocate for the petitioner has submitted that the respondent no.2 was not the employee of the petitioner and he was performing the job on contract basis. According to the petitioner, the Labour Court while rejecting the application of the respondent no.2 under Section 30(2) of the Act of 1971 had also given the finding that the respondent no.2 was not the employee of the petitioner. It is submitted that the Provident Fund Commissioner while exercising the powers under Section 7-A of the Act of 1952, does not have authority to decide "employer-employee" relationship, he has the power only to determine the amount due from the employer under the provisions of the Act of 1952, the Scheme or [Pension. Scheme or the Insurance Scheme. It is submitted that the Assistant Provident Fund Commissioner has transgressed his jurisdiction by deciding that the respondent no.2 is the employee of the petitioner. The submission on behalf of the petitioner is that the respondent no.2 was performing his professional duties as part time retainer till 6th December, 2002 and he continued with his independent practice. It is submitted that in Writ Petition No. 6423/2013 between the same parties, it is held that the respondent no.2 is not the workman. It is submitted that the respondent no.2 was paid fix remuneration as per retainership agreement and it cannot be treated as salary paid to the respondent no.2 considering him as the employee of the petitioner. In support of this submission, the learned Advocate has relied on the judgment of Calcutta High Court given in the case of Souvik Mukherjee Vs. State of West Bengal and others, 2014 AIR(Cal) 85. It is submitted that the Assistant Provident Fund Commissioner while conducting the inquiry has not exercised the powers conferred by Section 7-A (2) of the Act of 1952 and, therefore, the inquiry and the order passed pursuant to the inquiry are vitiated.