1. Superb question of law involved in this batch of writ petitions is whether the Assistant Provident Fund Commissioner is justified in holding that “Commission Vendors” engaged by the petitioner/its predecessors-in interest for selling its food products can be considered to be its employees for the purpose of Section 2 (f) of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (for short ‘the EPF Act’).
2. Invoking the jurisdiction of this Court under Article 226/227 of the Constitution of India, the petitioner herein has filed these writ petitions questioning the order passed by the Employees’ Provident Fund Appellate Tribunal, New Delhi (for short ‘the Appellate Tribunal’) dated 11-5-2011 (Annexure P-1) in all the four writ petitions by which the Appellate Tribunal has affirmed the order passed by the Assistant Provident Fund Commissioner, Raipur, deciding the applicability dispute and consequently, determining the amount due under Section 7A of the EPF Act in the following background facts: –
Background Facts: –
3. The petitioner is a private limited company registered under the provisions of the Indian Companies Act and successor-in-interest of the original assessee namely M/s. R.K. Agrawal & Sons, a partnership firm, and is engaged in providing catering services at Railway Station, Raipur. Its work of selling food and other eatables and beverages is carried out through Commission Vendors said to be engaged on commission basis.
4. The petitioner’s predecessor-in-interest namely M/s. R.K. Agrawal & Sons was summoned in the year 2002 by the Assistant Provident Fund Commissioner, Raipur (for short ‘the APFC’) on 6-3-2002 for non-payment of provident fund dues under the EPF Act by registering proceeding under the said Act. He appeared before the APFC and raised objection with regard to applicability of the EPF Act to its establishment stating that the EPF Act is not applicable since the commission paid to its vendors does not fall within the definition of “basic wages” defined under Section 2 (f) of the EPF Act and, therefore, the petitioner is not liable to make payment of provident fund dues to the Commission Vendors.
5. The APFC by its order dated 7-5-2004, turned down the objection of the petitioner finding the plea of the petitioner not acceptable holding that since the Commission Vendors are getting their wages on the basis of commission fixed on sale and thus, they are very much employees of the petitioner / contractor establishment as they are engaged by the establishment and thereby decided the applicability dispute against the petitioner and proceeded to assess provident fund dues from March, 2001 to February, 2004 and it was further held that the average earning of vendors is Rs.50/- per day for 37 Vendors. Likewise, for the period from March, 2004 to June, 2005, provident fund dues were determined by the APFC on 31-7-2006. Similarly, for the period from July, 2005 to June, 2006, the APFC passed order determining dues on 15-12-2006 and from July, 2006 to August, 2007, the APFC passed order determining dues on 30-5-2008.
6. The petitioner preferred appeal before the Employees’ Provident Fund Appellate Tribunal, New Delhi against the order of the APFC passed on 7-5-2004 questioning the said order holding that the commission paid to the Commission Vendors is not basic wages and provisions of the EPF Act are not attracted and fixing of average earning Rs. 50/- per day was arbitrary and based on no evidence. No enquiry was held by the assessing authority / APFC as mandated under sub-section (3 A) of Section 7 A of the EPF Act. By its order dated 11-5-2011, the Appellate Tribunal dismissed all the four appeals preferred by the petitioner holding that the commission paid to Commission Vendors satisfies the definition of “basic wages” relying upon the decision rendered by the Supreme Court in the matter of Indian Banks Association v. Workmen of Syndicate Bank and others.
7. The order of the APFC duly upheld by the Appellate Tribunal has been challenged by the petitioner in writ petitions in the following manner: –
