ASST. PROVIDENT FUND COMMISSIONER EPFO, BAREILLYM/S U.P. STATE WAREHOUSING CORP. & ANR. versus M/S U.P. STATE WAREHOUSING CORP. & ANR. on 14 August 2019

1. Leave granted.

2. This appeal is filed against the final judgment and order dated27.08.2013 passed by the High Court of Judicature at Allahabad inCMWP No. 49599 of 2011 whereby the High Court allowed the writpetition filed by respondent No.1 herein and quashed the awards dated03.08.2010 and 02.12.2002 passed by the Employees’ Provident FundAppellate Tribunal and the Employees’ Provident Fund Organization,Sub-Regional Officer respectively.

3. In order to appreciate the short issue involved in this appeal, afew facts need mention infra.

4. The appellant herein is respondent No. 1 whereas respondentNo.1 herein is the writ petitioner and respondent No. 2 herein is respondentNo. 2 in the writ petition before the High Court out of which this appealarises.

5. The appellant is the Assistant Provident Fund Commissionerof the Employees’ Provident Fund under the Employees’ Provident Fundsand Miscellaneous Provisions Act, 1952 (hereinafter referred to as “theAct”). Respondent No.1 is the statutory Corporation known as U.P.State Warehousing Corporation for the State of U.P. (hereinafter referredto as “Corporation”) and respondent No. 2 is the Union of workers.

6. The Corporation is inter alia engaged in the business of stockingthe grains and other commodities in its Godown. The work of loadingand unloading of the commodities in the Godown is done by the workerson regular basis. The business of Corporation is governed by theprovisions of Warehousing Corporation Act, 1962 (for short called, “TheAct 1962”).

7. It is the case of the Corporation that the stocking, loading andunloading of the commodities in its Godowns is done through Contractor,who, in turn, employs the workers for doing the work of loading andunloading for the Corporation in their Godowns. These workers haveformed their Union called U.P. Rajya Bhandar Nigam Asthayi HandlingMazdoor Union- respondent No. 2 herein.

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A8. The question arose as to whether the workers (total 159 at therelevant time), who were engaged in the work of loading and unloadingin the Godowns, are entitled to claim the benefit of the Act and, if so,whether the Corporation is liable to pay the statutory contribution inrelation to such workers in accordance with the provisions of the Act soas to entitle the workers to claim the benefits of the Act.B

9. The appellant with a view to decide this question accordinglyissued notice to the Corporation under Section 7A of the Act and calledupon them to pay the arrears due towards provident fund contribution ofthese workers (159) in accordance with the provisions of the Act.

C10. The Corporation contested the show cause notice inter aliaon the ground that since there was no relationship of employer andemployee between the Corporation and these workers, the Corporationwas not liable to pay any contribution of these workers under the Act.

11. The Corporation also pointed out that the question as to whetherDthese workers were the employees of the Corporation or not was alreadygone into between the parties before the Labour Court in adjudicationCase Nos. 89/2006 and 3/2009 and the same was decided by the LabourCourt in workers’ favour but later the award of the Labour Court wasset aside by the High Court by order dated 15.05.2013 in W.P. No 72314of 2010. It is on this basis, the Corporation contended that in the light ofEthis finding having been recorded by the High Court in their favour, thepresent proceedings initiated under Section 7A of the Act against theCorporation are wholly devoid of any merit and hence the proceedingsbe withdrawn.

12. By assessment order dated 02.12.2002, the adjudicatingFauthority did not accept the contentions raised by the Corporation andheld that the Corporation was liable to pay the contribution of theseworkers in accordance with the provisions of the Act. The appellateauthority constituted under the Act upheld the order, which gave rise tofiling of the writ petition by the Corporation in the High Court of Allahabad.

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13. By impugned order, the High Court (Single Judge) allowedthe writ petition and set aside the order of the adjudicating authority andthe appellate authority. The High Court simply placed reliance on thefinding recorded by the High Court in the earlier proceedings and heldthat since there was no relationship of master and servant between the H

ASST. PROVIDENT FUND COMMISSIONER EPFO, BAREILLY v. M/S U.P.STATE WAREHOUSING CORP. [ABHAY MANOHAR SAPRE, J. ]

Corporation (as master) and the workers (as servants) as was held bythe High Court in the earlier writ proceedings, the proceedings in questionare rendered bad in law and deserves to be quashed.

14. It is against this order, the Provident Fund Authorities feltaggrieved and filed this appeal by way of special leave in this Courtquestioning its legality and correctness.

15. So the short question, which arises for consideration in thisappeal, is whether the High Court was justified in allowing the writ petitionfiled by the Corporation and thereby was also justified in setting asidethe orders of the adjudicating authority and the appellate authority.

16. Heard Mr. Keshav Mohan, learned counsel for the appellantand Mr. P.S. Misra, learned senior counsel for respondent No.1 and Mr.R.R. Rajesh, learned counsel for respondent No.2.

17. Having heard the learned counsel for the parties and on perusalof the record of the case, we are constrained to allow the appeal andwhile setting aside the impugned order remand the case to the HighCourt (writ court) for deciding the writ petition afresh on merits.

18. In our considered opinion, the need to remand the case to theHigh Court has arisen for the reason that the High Court failed to examinethe issue keeping in view the definition of “employee” as defined underSection 2(f) of the Act which reads as under:

“2(f) “employee” means any person who is employed forwages in any kind of work, manual or otherwise, in or inconnection with the work of an establishment, and who gets,his wages directly or indirectly from the employer, andincludes any person,-

(i) employed by or through a contractor in or inconnection with the work of the establishment;

(ii) engaged as an apprentice, not being an apprenticeengaged under the Apprentices Act, 1961 (52 of 1961),or under the standing orders of the establishment;”

(emphasis supplied)

19. In our view, the High Court should have seen that theproceedings in question have arisen out of the Act in question and, A

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Atherefore, the issue was required to be decided in the light of the relevantprovisions of the Act in question but not in the light of the finding recordedin the proceedings arising under the Industrial Disputes Act,1947(hereinafter referred to as “the ID Act”).

20. The High Court also should have seen that in order to decideBthe relationship of employer and employee for the purpose of applicabilityof the Act in question, the issue has to be decided in the light of definition of “employee” as defined under Section 2(f) of the Act.

21. It should have been seen that firstly, the definition of “employee”under the ID Act is not identical to the definition of “employee” definedCunder Section 2(f) of the Act; and secondly, the object of the ID Actand the Act in question is not the same. In other words, the definition of“employee” under the ID Act and the one defined under the Act inquestion are not similar. Even their objects are also not identical.

22. It is for these two reasons, any finding recorded by the LabourDCourt while deciding the dispute under the ID Act will be of noconsequence while deciding the question arising under the Act in question.The issue was, therefore, required to be decided independently and dehors the proceedings decided under the ID Act.

23. Since the High Court did not notice the definition of “employee”Edefined under Section 2(f) of the Act and proceeded to pass the impugnedorder only in the light of finding recorded in the proceedings arising underthe ID Act in the order dated 15.05.2013 passed in W.P. No.72314 of2010, the impugned order is rendered bad in law and, therefore, calls forinterference in this appeal.

24. In the light of the foregoing discussion, the appeal succeedsFand is accordingly allowed. The impugned order is set aside. The case(writ petition) is remanded to the High Court (writ court) for decidingthe Corporation’s writ petition afresh on merits keeping in view thedefinition of “employee’’ as defined under Section 2(f) of the Act andthen decide as to whether the proceedings under section 7A of the ActGare legal and proper or not.

25. We request the High Court to decide the writ petitionexpeditiously.

Devika GujralH