19 Jun 2121

Pigmy Agents being Commission Agents can not be considered as “Employees of the Petitioner – Establishment” and therefore commission being earned by them is not liable for provident fund deduction - Bombay High Court

Case : M/s Deogiri Nagari Sahakari Patsanstha Ltd. v. The Assistant Provident Fund Commission and Another Writ Petition No. 4685/2021

Court : Bombay High Court

Bench : Justice Sandeep K. Shinde

Decided on : 19 Jun 2121

The Relevant Statutes

Article 226 and 227 of the Constitution of India

Section 7A, 7B and 8F of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.

Brief Facts and Procedural History

1. Petitioner is an establishment within the meaning of Section 1(4) under Scheduled Head “Financial Establishment” of Employees' Provident Funds and Miscellaneous Provisions Act, 1952. Enquiry under Section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 was initiated against the establishment by issuing summons on 31st August 2009 for the period from August 2002 to August 2009, to assess and recover the statutory Employees Provident Fund dues from the establishment.

2. The Enforcement Officer's report dated 22nd May 2013 was disputed by the petitioners, contending that the Pigmy Agents being Commission agents could not be considered as “Employees of the Petitioner- Establishment” and therefore commission being owned by them was not liable for provident fund deduction.

3. It appears from the affidavit-in-reply of the respondents that the petitioner remained absent in the subject proceeding on 54 occasions. Thus alleged, Petitioners deliberately avoided furnishing the particulars required by the Authority.

The Issue of the Case

Whether the Respondent has completely ignored the law on the subject laid down by the court?

The Observations of the Court

1. The Petitioner in support of their contention relied upon on the judgement of Division Bench of the Court, in the case of Pachora People’s Co-operative Bank Limited vs. Employees Provident Fund Organisation, 2017 (2) Mh.L.J 946.

2. Mr Honourable learned Senior Counsel relied on Shri Gajanan Maharaj Sansthan vs. Regional Provident Fund Commissioner, Writ Petition No. 1002/2008

The Decision held by the Court

The Petition is allowed and disposed of in the aforesaid terms.

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