ORDER
1. An establishment engaged in the printing works run under the name and style of 'the Mysore State Co-operative Printing Works Ltd.' has been registered as a Society under the Karnataka Co-operative Societies Act. I will call this establishment hereinafter as 'the Society'. The grievance of the Society in this writ petition is that it did not employ 20 workers during the relevant period in or in connection with the work of the Society, and, therefore, not liable to pay the contribution payable under the Employees' Provident Funds and Family Pension Fund Act, 1952, hereinafter called 'the Act'.
2. The facts leading up to the writ petition are these : On 15/22-2/1973, the Regional Provident Fund Commissioner who is a statutory authority under the Act, called upon the Society to pay the contribution with effect from first September, 1972 in respect of the eligible persons employed in the Society on the ground that it was covered by the provisions of the Act and the Scheme framed thereunder. The Society did not comply with the demand. Thereupon, the Commissioner held an enquiry under S. 7A of the Act to determine the provident fund dues payable by the Society. In the course of the enquiry, the Society contended that three of its employees, namely, (1) house orderly, (2) night watchman and (3) the secretary were not its employees, and, therefore, they should not be counted for the purpose of determining the applicability of the Act. But the Commissioner rejected that contention. On the nature of the employment of the house orderly, the Commissioner said thus :
'Though the house orderly, exclusively belongs to the President of the Society his wage were directly paid by the Press and he was also appointed by the Press, and, therefore, should be considered as an employee within the meaning of S. 2(f) of the Act'.
Regarding the night watchman, this is what he observed :
'I observe that the night watchman is paid a sum of Rs. 20 per month, in consideration of his services as watchman during the night. Hence he is also an employee within S. 2(f) of the Act'.
Coming to the status of the secretary, he observed thus :
'Similarly, though the secretary is on deputation from the Karnataka Government, his salary is paid by the Press. For purposes of computing the strength of employment, he has to be considered as an employee of the Press. As long as he works in the establishment and gets his salary from the establishment, he is to be considered as an employee of the establishment within the meaning of S. 2(f) of the Act. He is, therefore, entitled for provident fund benefit also on completion of the qualifying period of service. However, if his services are governed by KCSR he may obtain exemption under Para 27 of the Employees' Provident Fund Scheme'.
With these findings, he called upon the Society to pay the provident fund contribution in a sum of Rs. 2,779 and family pension of Rs. 644, with the administrative charges of Rs. 100.80. Challenging the correctness of the decision of the Commissioner, the Society has moved this Court with an application under Arts. 226 and 227 of the Constitution.
3. The case just lies on the border line. The minimum strength of the employees in any establishment, for the applicability of the Act is 20 as provided under S. 1(3) of the Act. Even according to the decision of the Commissioner, the society has just employees out of whom three are disputed. The disputed employees are (1) the house orderly, (2) the night watchman, and (3) the secretary who has been deputed by the Government, if any one of them falls outside the category of the employee as defined under S. 2(f) of the Act, the society automatically stands excluded form the operation of the Act and the Scheme framed thereunder.
4. Before considering the nature of the employment of these persons, it is necessary to remember the relevant provisions of the Act and the Scheme framed thereunder. Section 1(3) of the Act provides that thee Act is applicable to every establishment which is a factory engaged in any industry specified in Scheme I and in which twenty or more persons are employed, and to any other establishment employing twenty or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette, specify in this behalf. The 'employee' is defined under S. 2(f) of the Act to mean :
'Any person who is employed for wages in any kind of work, manual or otherwise in or in connection with the work of an establishment and who gets his wages directly or indirectly form the employer, and includes any person employed by or through a contractor in or in connection with the work of the establishment'.
From the above definition, it is clear that any person employed to do certain work altogether unconnected in or in connection with the work of the Society, cannot be considered as an 'employee'. The dominant factor in the definition of the 'employee' is that a person should be employed in or in connection with the work of the establishment. It is needless to state that every employment must rest on the relationship of master and servant. For deciding the existence of such relationship, it has been universally accepted that the test of control is not the sole criteria. In Bank Voor Handelen Scbrevaard N. V. v. Slatford, [1952] 2 All. E.R. 956 at 971, Denning, L.J. said :
'.... the test of being a servant does not rest nowadays on submission to orders, it depends on whether the person is part and parcel of the Organisation ...'
5. In Cassidy v. Ministry of Health, [1951] 1 All. E.R. 574 at 579, Lord Justice Sommerwell pointed out that the test of control over the manner of work if applied, may exclude many cases where the relationship of master and servant clearly exists, that there are many contracts of service where the master cannot control the manner in which the work is to be done as in the case of a certified captain of a ship, to whom the owner can tell him where to go, but he cannot tell him how to navigate.
6. In Silver Jubilee Tailoring House v. Chief Inspector of Shops and Establishments, [1973-II L.L.J. 495 at 500], Mathew, J., speaking for the Supreme Court observed at para 19 thus :
'In any skilled employment, to apply the test of control over the manner of work for deciding the question whether the relationship of master and servant exists would be unrealistic.'
He further continued at page 504 :
'A person can be a servant of more than one employer and a servant need not be under the exclusive control of one master.'
7. With these principles in mind, let me refer to the contentions urged by counsel for the petitioner.
8. The contentions concerned with the house orderly and the night watchmen are common and appear to be two fold. Counsel for the petitioner urged that both were not employed in or in connection with the work of the Society. He also urged that in any event they were not employed to meet the general requirements of the society for its regular feature of the business and, therefore, should be excluded from the category of employees. The next contention urged related only to the secretary. It was submitted that he was a Government servant deputed to the Society and was not an employee of the society.
9. I now consider these contentions in turn. The house orderly appears to have been appointed by the society which paid him the wages, although he exclusively worked at the residence of the president of the society. On these two circumstances, the Commissioner rested his conclusion that the house orderly should be held to be an employee of the society. But, the society in its written submission on 30-3-1974 made before the Commissioner has stated :
'It is submitted that the house orderly is not an employee employed by the society in or in connection with the work of the Society. He is a pure and simple domestic servant of the president of the society. As and when the presidents are changed the house orderly is also changed and employed by the President at their choice. It is submitted that the Society has nothing to either in employing the house orderly or their work is concerned. At any event, the house orderly is not employed by the society in or in connection with the work of the Society. At present there is not house orderly to the president.'
It was contended before me, that the house orderly was not a part and parcel of the Society as he was purely a domestic servant of the President. On the other hand it was urged for the Commissioner that the president was not a paid employee of the of the Society, that he was an Officer elected by the members of the society; and he might do his office work in his residence for which he was given the service of the house orderly. It was also said that if the house orderly attended to the needs of the President who was required in given his best attention for the administration of the society, the house orderly should be held to have been employed in connection with the work of the Society. It seems to me that the question cannot be decided one way or the other by these allegations alone although I agree that the term 'in connection with the work of an establishment' found in the definition of 'employee' under S. 2(f) is wide in its amplitude. To determine such disputed matters, the Scheme provides a particular procedure para 26B provides :
'26B. Resolution of doubts. - If any question arises whether an employee is entitled or required to become or continue as a member, or as regards the date from which he is so entitled or required to become a member, the decision thereon of the Regional Commissioner shall be final.
Provided that no decision shall be given unless both the employer and the employee have been heard.'
The above provision makes it obligatory for the Commissioner to hear the house orderly and the society before he gives any decision as to whether the said employee is entitled or required to become a member of the provident fund. It is not in dispute that no such hearing has been afforded to be house orderly and the conclusion of the Commissioner, therefore, cannot be supported.
10. Same would be the position when we come to consider the case of night watchman. It was said that he was a bazar watchman and the society had no control over his movements or work as he did not reside in the premises of the society. It was further said that he was an old man who looked after several shops in the vicinity of the Society and the Society was paying him only Rs. 20 for a short period, and his employment was not dictated by the regular feature of the business of the Society. It seems to me that this contention also cannot be decided in this petition although it is now well settled that the employment of a person should be dictated by the normal requirements of the establishment for the regular work which should also have a commercial nexus with its general financial capacity and stability. In the provident Fund Inspector, Guntur v. T. S. Haribaran : (1971)ILLJ416SC , Dua, J. speaking for the Supreme Court observed :
'.... In other words, the employment of requisite number of persons must be dictated by the normal regular requirement reflecting its financial capacity and stability. It, therefore, follows from this that the number of persons to be considered to have been employed by an establishment for the purpose of this Act has to be determined by taking into account the general requirements of the establishment for its regular work which should also have a commercial nexus with its general financial capacity and stability. This seems to us to be the correct approach under the statutory scheme.'
The learned Judge continued :
'Considering the language of S. 1(3)(b) in the light of the foregoing discussion, it appears to us that employment of a few persons on account of some emergency or for a very short period necessitated by some abnormal contingency which is not regular feature of the business of the establishment and which does not reflect its business prosperity or its financial capacity and stability from which it can reasonably be concluded that the establishment can in the normal way bear the burden of contribution towards the provident fund under the Act would not be covered by this definition. The word 'employment' must, therefore, be construed as employment in the regular course of business of the establishment. Such employment obviously would not include employment of a few persons for a short period on account of some emergency beyond the control of the company. This must necessarily require determination of the question in each case on its own peculiar facts ......'
From the order of the Commissioner, it is evident that he has not considered the employment of the night watchman in the light of the above principles. It is not uncommon in the cities, that there are several bazar watchmen or street watchmen, who keep a watch in the night in a specified locality or street. Such watchmen are not ordinarily the employees of any person, though they may receive a small remuneration from each of the residents of the locality. Some more evidence is, therefore, necessary to hold that the night watchman was actually employed by the Society and the question could be decided only after notice to the concerned watchman as required under para 26B of the Scheme.
11. With the above conclusion, I should have remitted the matter back to the Commissioner for reconsideration; but it may not be necessary, since the petitioner has got a good case for acceptance, when we turn to the question of employment of the secretary of the Society. Bye-law 24(f) of the Society Provides that there shall be a paid secretary who will be an officer of the department appointed by the Registrar. The secretary of the Society was admittedly a Government servant. He was lent to the society by the Registrar of Co-operative Societies. The position of such lent officer is governed by rule 445 of the Karnataka Civil Services Rules, which provides that a Government servant transferred to foreign service remains, subject to the general and disciplinary rules which would have applied to him as a servant of the Government had he not been so transferred. In other words, he continues to remain as a Government servant with all the conditions of service applicable to him including the rules of pension. The Commissioner, however has stated that for the purpose of computing the strength of the employment, the secretary has also to be considered as an employee of the society within the meaning of S. 2(f) of the Act, and if he is governed by the Karnataka Civil Services Rules he might obtain exemption under para 27 of the Scheme. Prima facie, this view appears to be erroneous, para 27 of the Scheme could be invoked in respect of a person who is governed by the provisions of the Act and the Scheme and who is required to become a member of the fund under papa 26. The relevant portion of para 26 provides :
'26. Classes of employees entitled and required to join the fund. - (1)(a) Every employee employed in or in connection with the work of a factory or other establishment to which this Scheme applies, other than an excluded employee shall be entitled and required to become a member of the fund from the beginning of the month following that in which this paragraph comes into force in such factory or other establishment if on the date of such coming into force he has completed one year's continuous service or has actually worked for not less than 240 days during a period of twelve months or less in that factory or other establishment or in any other factory or other establishment to which the Act applies under the same employer, or partly in one and partly in the other or has been declared permanent in any such factory or other establishment whichever is the earliest' From the above provisions, it is clear that it is obligatory for every employee employed in or in connection with the work of the Society, to become a member of the fund, if he has completed one year's continuous service or has actually worked for not less than 240 days during a period of twelve months. Under para 27, the commissioner may, by order and subject to such conditions exempt an employee from the operation of all or any of the provisions of the Scheme. The exemption provided thereunder would be available for the employees who are otherwise covered by the Act and the Scheme. If the employee, by the conditions of his service, cannot become a member of the fund the question of granting an exemption by the Commissioner does not arise. If these principles are borne in mind, then, the problem of the Secretary presents little difficulty. Under the service conditions regulated by the rules framed under the proviso to Art. 309 of the Constitution, the secretary who was a Government servant could not become or was not required to become a member of the provident fund, even though he worked for the required period of 240 days in the Society. He could not also exercise any option to become a member of the fund so long as he remained as a Government servant. I take it to be clear law, as well as good sense that a person who is himself under no duty to become a member of the provident fund, need not go begging for exemption before the Commissioner who himself cannot exercise the power vested under para 27 in such cases.
12. The truth is that the secretary who was a deputed Government servant, was not an employee of the Society, though the Society paid him salary. The payment of salary was necessitated by the terms of deputation and also perhaps as per Bye-law 24(f) of the Society, to which I had earlier made a reference, and it was certainly not by the reason that he was an employee as defined under S. 2(f) of the Act. I am not unaware of the fact that that plurality of masters in the case of lent officers cannot be avoided and generally not contrary to the contract of employment even under the common law as stated by this Court in V. R. Mundewari v. State of Mysore, (1968) 2 Mysore L.J. 541 at 544. Those principles, in my view, are of limited application, and cannot be extended to the present case so as to compel the secretary to become a member of the provident fund contrary to the law governing his service conditions. The Secretary, therefore, should be excluded from the strength of employment of the society. If he is excluded, the employment strength falls below the statutory minimum of twenty, thereby taking the Society out of the operation of the Act and the Scheme altogether.
13. In the result, the rule is made absolute. A certiorari shall go to quash the impugned order of the Commissioner, with a direction restraining him from enforcing the provision of the Act to the society during the period covered under the impugned order.
14. In the circumstances, however, I make no order as to costs.