Bhagabati Prosad Banerjee, J
1. This is an appeal against the judgment and order, dated June 30, 1989 passed by Monoj Kumar Mukherjee, J. (as His Lordship then was) in Civil Order No. 7297 (W) of 1989 rejecting the writ application. The Writ petition was filed by the petitioner company challenging the order, dated May 26, 1989 passed by the Regional Provident FundCommissioner, West Bengal, the Andaman and Nicobar Islands, respectively under Section 71 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 demanding the liability of the petitioner Company in respect of the Provident Fund dues of respondent No. 2 Dr. Samar Ghosh who was held to be an employee of the petitioner company.
2. The question that has been raised in this appeal is whether the appointment of the respondent No. 2 Dr. Samar Ghosh as a Part time Medical Officer of the appellant company will be termed as an 'employee' within the meaning of Section 2(f) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the said Act).
3. It is the case of the appellant-company that the respondent No. 2 was appointed to render medical services and that the said contract under which the employment was made was a contract for services and not for service. It is the case of the appellant that the respondent No. 2 is a Private Doctor and cannot claim employment to the establishment and he has only rendered his services to the workmen of the appellant-company. In this connection a reference was made by the appellant to the provisions of Section 2(f) of the said Act.
Section 2(f) of the said Act provides as hereunder:
employee' means 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 employer (and includes any person....
(1) employed by or through a contractor in or in connection with the work of the establishment;
(2) engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961, or under the standing orders of the establishment)'.
4. It is not in dispute that the services of the respondent No. 2 was terminated by giving one month's notice on March 12, 1988 alleging that his service as a Part-time Medical Officer was no longer required. The terms and conditions of employmentas set out in the letter of appointment are inter alia as hereunder:
'.......(2) You will have to attend your duties normally for three hours from 11 a.m. to 2 p.m. and on Saturday the same will be for 2 hours from 11 a.m. to 1 p.m.
(3) You will be available for attending any emergency cases at any time in our company on call.
(4) You will not be entitled to any benefit, e.g. Provident Fund, Leave, Bonus etc. which are being usually granted to regular employees of the company.
(5) Your employment as Part-time Medical Officer may terminate on one month's notice on either side.'
5. Before making such a decision by the Regional Provident Fund Commissioner which was under the challenge in the writ petition, it appears that notice was duly served upon the appellant-company as well as the Private respondent and the appellant-company and the respondent No. 2 were duly heard by the Commissioner and on consideration of rival contentions of the parties and on consideration of records and documents that were available before the authority concerned, the authority concerned came to the conclusion that the Private respondent was an employee within the meaning of Section 2(f) of the said Act and consequently the appellant-company has the responsibility to pay the Provident Fund dues to the said respondent. Accordingly, the Provident Fund Authority had determined Rs. 41,230.00 as representing both the shares along with interest as admissible under the Provident Fund Rules for the respective years, namely, from June 1, 1968 to March 12, 1988. It also appears from the record under Section 7A of the said Act that the appellant-company did not present any record before the authorityconcerned. On the contrary, the private respondent produced such original documents and the authority concerned after taking into consideration of those documents held that the Private respondent was an employee and the Provident fund Liability under the said Act was there and accordingly the said sum was determined. Challenging the validity of the said order under Section 7A of the said Act the writ petition was moved before this Court which was dismissed by the learned Trial Judge holding that the impugned order was passed in proper appreciation of the materials placed before him and did not suffer from any legal infirmity.
6. Point was taken before the learned Trial Judge that such a dispute could only be dissolved in accordance with paragraph 26B of the Employees' Provident Fund Scheme and not under Section 7A of the said Act. The said argument was also rejected by the learned Trial Judge.
7. Mr. Jinwalla, learned Counsel appearing for the appellant contended in the first place that the private-respondent was not an employee within the meaning of Section 2(f) of the said Act inasmuch as he was not required to perform any work which is connected with the work of the said establishment. It was further submitted that such a question could only be adjudicated under paragraph 26B of the Scheme and not under Section 7A of the said Act. Thirdly, it was submitted by the appellant that the authority concerned had failed to appreciate that the terms and conditions of employment does not bring such an employee within the scope and ambit of the Provident Funds Act inasmuch as services rendered by the respondent No. 2 were not in connection with the work of the establishment and that in any event the services that were rendered have no nexus and/ or connection with the work of the establishment, and, as such, it should not be regarded as an employee. It was further submitted by the appellant that for several years the private respondent hasaccepted the position and after lapse of so many years the private respondent is not entitled to raise such a dispute and the authority concerned has no jurisdiction to adjudicate such a dispute in the manner, it was done.
8. Mr. Bhattacharya, learned Counsel appearing for the respondent No. 2 submitted that the respondent No. 2 comes within the scope and definition of 'employee' of Section 2(f) of the said Act, keeping in view the object and purpose of the Act in question. Further it was submitted that the authority concerned on proper consideration of all the materials that were available before the authority concerned has come to the conclusion of the question of fact and accordingly the writ Court should not interfere with such findings of fact.
9. Mr. Jayanta Biswas, learned Counsel appearing for the Provident Fund Commissioner submitted that the authority concerned had taken a decision in accordance with the provisions of Section 7A of the said Act and on proper consideration of the materials. It was submitted by Mr. Biswas that the authority concerned has jurisdiction to decide such a question. It was further submitted that paragraph 26B of the Scheme cannot be said to override the Provisions of Section 7A of the Act under which the authority concerned has the jurisdiction to determine the liability of the employer to pay Provident Fund dues to his employees and when such a liability has been determined, the Court is only concerned about the correctness of the decision making process and not to correct the decision of a fact finding authority.
10. The term 'employee' as defined under Section 2(f) of the Act means not only for performing any work in connection with the establishment, but also any other work for the employer-company manual or otherwise and that while construing the provisions to Section 2(1) of the said Act we have to bear inmind the object of the Act and the principles of interpretation that, have to be adopted in construing the provisions of the Act. We have also to bear in mind in construing the provisions of the said Act which as framed for the well-being of the employees and the Court must not countenance any subterfuges to defeat the provisions of such a social legislation. It is also well settled that in construing the material provisions of the said Act, if two views are reasonably possible, the Court should prefer the view which holds the achievement of the Act. The expression any kind of work, manual or otherwise, in or in connection with the work of an establishment we are of the view that maintaining a medical unit for the purpose of looking after the health hazards of the employees is a mandatory Duty and/or obligation on the part of the employer and even though one is not performing any work indirectly for production or work undertaken by the company, certainly it is an ancillary or incidental work of the establishment.
A driver engaged for the purpose of driving a car of a company may not perform any work of the establishment as the establishment may only be created for the production of materials, but certainly such a driver discharges his duties which is ancillary or incidental to main purpose. It is not in dispute that even a part-time employee may come within the scope and ambit of the said Act in view of the definition of an 'employee' under Section 2(f) of the said Act.
11. In the instant case four essential ingredients to have a master and servant relationship are present i.e. (i) who is the employing authority; (ii) the authority who can terminate the service of an employee in accordance with law; (iii) the master who is the authority to supervise the work of the employees, and (iv) who is the authority to pay the emoluments to the employees. In the instant case the Regional Provident Fund Commissioner had also taken into consideration the fact that in one monthly 'salary' advice, dated March 18, 1968 it was advisedthat of Rs. 650/- a sum of Rs. 64/- has been deducted from the wages for March, 1968 and this goes to prove that the establishment treated Dr. Ghosh, the respondent No. 2, as a person entitled to Provident Fund membership, but later on resiled from its decision. It was also found by the present Provident Fund Commissioner that the words 'retaining allowance' appears to be a later thought. It is not borne out in the appointment letter. In any case, establishment itself called 'salary' in its letter to the Bank (adverted to earlier). Income Tax Deductions have been made by the establishment treating the sum is paid as 'salary' as seen from the certificates of September 19, 1963, May 13, 1964, April 29, 1965 and 14 other certificates for various years.
12. With regard to the decision of the Supreme Court in the case of Management of Puri Urban Cooperative Bank v. Madhusudan Sahu and Anr. reported in (1992-II-LLJ-6),we are of the view that the principles laid down in that case has no manner of application in the facts and circumstances of the present case. In that case the Supreme Court considered whether appraiser engaged by Bank to appraise quality, purity and value of ornament offered for pledging to Bank is not a work as no master and servant relationship exists, In that case a person engaged by a bank as an appraiser of ornaments, who was required to make himself available when called to weigh and test ornaments offered to be pledged to the bank to secure loan, is not a 'WORKman' within the meaning of Section 2(f) of the I.D. Act. The appraiser could be directed by the bank to appraise quality, purity and value of the ornaments offered for pledging, but not the manner in which he shall do it. He was responsible and accountable for the loss than the bank might suffer due to wrong valuation done by him. However, there in a fair element of freedom though coupled with responsibility, in which he could do his work. He was not 'employed' as such, so as to establish a master and servant relationship. In that case the question ofpayment of salary was not there. Under such circumstances it was held that an appraiser was not a Workman.
13. In the instant case the private respondent was treated as an employee on regular basis and required to perform regular duties even though on part time basis and that income tax deduction has been made for several months and not in one particular occasion. This fact are read with the terms and conditions of the employment including the provisions of termination by giving one month's notice made it abundantly clear that he was an employee of the appellant-company even though on part-time basis since in the Provident Funds Act no discrimination was made between the part-time and whole-time employee and it could not be held that the Provident Fund does not apply in respect of a part-time employee. We are also of the view that paragraph 26B of the Employees' Provident Funds Scheme, 1952 which provides that 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 to require to become a member, 'the decision of the Regional Commissioner shall be final' does not take away the power of the Regional Provident Fund Commissioner to make a determination of question under Section 7A of the said Act. Reading the Provisions of Section 7A of the said Act and paragraph 26B of the said Scheme, it appears to us that when a decision is taken under Section 7A of the Act that decision of the Regional Provident Fund Commissioner shall be final. Paragraph 26B did not lay down any independent procedure for determining on any question and the said paragraph cannot be said to over-ride the provisions of Section 7A of the said Act. When a determination has been made under Section 7A of the Act by the authority concerned after hearing the parties and when it was decided that the private respondent was an employee and the Provident Funds Act is applicable, in such a case we are unable to interfere with findings under Article 226 of the Constitution of India. We are also of the view on proper construction of the definition of the word 'employee' as defined under Section 2(f) of the said Act the respondent No. 2 was an employee under the appellant and accordingly such an employee is entitled to get all the benefits of an employee under the Act and accordingly the determination made by the said authorities could not be said to be without jurisdiction and illegal in any manner whatsoever. We are of the view that even though it was provided in the agreement that no Provident Fund benefits would be extended to the employee, if under the law the appellant is to pay the Provident Fund dues, the agreement of the parties cannot over-ride the provisions of the statute as there was no estoppel against the statute. When it is found under the statute that liability is there, the agreement between the parties which is contrary to the law should be treated as void db initio and hot binding upon the private respondent to that extent.
14. Accordingly, we do not find any reason to interfere with the order of the Provident Fund Commissioner and consequently we do not find any reason to interfere with the order passed by the learned Trial Judge. The appeal is accordingly dismissed with costs.
15. It is further ordered that the money deposited in terms of the interim order passed by a Division Bench of this Court should be released in favour of the respondent No. 2 by the learned Registrar, Appellate Side of this Court forthwith.
16. The learned Counsel appearing for the appellant has prayed for stay of operation of the above order for six weeks and the same is rejected.
Nikhil Nath Bhattacharjee, J
17. I agree.