JAY KAY Vs. REGIONAL P F COMMISSIONER

JUDGEMENT

(1.) THE Employees Provident Fund and Miscellaneous Provision Act, 1952 (shortly called hereinafter 'the Act') is a beneficial piece of legislation and the Government functionaries appointed under the Act owe a duty legal, moral, public and social to see that the high hopes with which the Act was enacted are not thrown to the winds because of the inaction of the functionaries who are paid out of public revenue. We have felt constrained to open our judgment with this prefatory note on being told by Shri Mohapatra, learned counsel for the Regional Provident Fund Commissioner, that there are some materials available in the file of the Commissioner to show that apart from what is reflected in Annexure-7a as per which the establishment in question had employed 22 persons including four partners drawing salary, there were two other employees as well, which fact, if taken note of, would make the establishment liable to pay the Provident Fund as the number of employees would then be 20. It is a matter of extreme regret (indeed, we would regard it as a criminal act of negligence) that the Regional Provident Fund Commissioner did not bring this material on record as the counter in the case is said to have been filed on November 13, 1992 which has not come to the record of the Court and which is absolutely in violation of Rule 10 finding place in Chapter XV of the Rules of this Court relating to applications under Articles 226 and 227 of the Constitution except writs in the nature of habeas corpus, whose material part reads as below: -

(2.) THE fact of the non-filing of the counter in the present case is that on the basis of what finds place in Annexure-7a as per which the number of employees in the establishment could be more than 20 only if four partners who were drawing salary and whose names had been mentioned in that Annexure can be taken to be employees, which cannot be in view of the decision of the apex Court in Regional Director, Employees' State Insurance Corporation v. Ramanuja Match Industries 1985-I-LLJ-69 in which the question as to whether a partner working for wages would be an employee under the provision of that Act, came to be considered and the question was answered in the negative, even by rejecting the contention that the statute being beneficial, liberal interpretation should be given. The definition of 'employee' as finding place in the Employees' State Insurance Act is in pari materia with the definition of 'employee' given in Section 2 (f) of the Act inasmuch as in both the sections the word 'employee' has been defined to mean "any person. . . employed for wages". The aforesaid decision has, therefore, direct application, and so, if the four partners whose names find place in Annexure-7a are excluded despite their drawing salary, it is apparent that on the basis of that Annexure, it cannot he held that the petitioner was an establishment to which the Act applied, as the number of employees would then be 18.

(3.) SHRI Mohapartra submits that apart from what finds place in this Annexure, there were two sweepers who had been employed by the petitioner as would appear from the report of the Inspector which is said to be in the file of the Commissioner. As that report is, however, not before us and the Commissioner had not even taken care to bring the same on record, we cannot take note of the same. We, therefore, dispose of this case by quashing Annexure-2 and by stating that on the basis of the materials on record, it cannot be held that the Act applied to the petitioner. It would, however, be open to the Commissioner to proceed further in accordance with law and if further materials would be available to show that at least two more persons had been employed by the petitioner at the relevant period, to apply the Act to the establishment of the petitioner and to take all consequential actions.