# M/S Sahara India & Anr v. U.O.I., New Delhi & Anr. 140 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2020) 10 ILRA 139
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-20
- **Case number:** Misc Single No. 15298 of 2020
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-sahara-india-anr-v-u-o-i-new-delhi-anr-140-indian-law-reports-allahabad-45133
- **Pages:** 17

## Headnote

Civil Law-Employees Provident Fund and
Misc. Provisions Act, 1952- Section A -Notice
given to determine liability of Petitioners as an
employer-Petitioner alleges-Commission Agents,
etc., -never employed-theresfore no liabilityimpugned orders are routine orders regarding
proceedings-for producing certain records-neither
records produced neither appear-sought more
time-Provident Fund Commissioner-clothed with
sufficient powers to direct the Inspector to enter,
search and examine-Petitioners not cooperating -
deliberately delaying it since last 7 years-impugned
order not illegal.

Writ Petition dismissed-cost. (E-9)

List of Cases cited:-

## Text

_Characters 0–39,564 of 57,242. This is a partial read: ask again with offset=39564 for what follows._

10 All. M/S Sahara India & Anr. Vs. U.O.I., New Delhi & Anr.
139

(14) The D.I.O.S. has failed to
consider that there is no fault on the part of
Committee
of
Management
for
not
conducting the election for which purpose,
an application was given to the Deputy
District Magistrate, which was rejected on
the ground that due to Covid -19 Pandemic
situation, it was not possible to hold
election because the number of persons
were about 60 and congregation of such
large group is not permissible and, it was
very difficult to provide any force or any
officer for the purpose of holding the
election. The said order of the Deputy
District Magistrate dated 20-07.2020 was
duly served upon the D.I.O.S., which was
much prior to the passing of the impugned
order dated 10.08.2020. The D.I.O.S.
without considering the order of the Deputy
District Magistrate and the request of the
petitioner for extension of term of the
Committee of Management for three
months more, passed the impugned order.

(15) So far the objection raised by
learned State Counsel that the petition has
become infructuous since the period upto
28.08.2020 has also expired is concerned, it
may be noted that in case the invalid order
passed violating the principle of natural
justice also, is not quashed and it is allowed
to remain in operation, it may come in the
way of the petitioner in considering and
disposing off the application moved by the
petitioner requesting the D.I.O.S. to extend
the time for another period of 3 months for
the purposes of holding the election. The
aforesaid application dated 22.07.2020
made to the D.I.O.S. is yet not disposed off
and remains pending for its consideration.

(16) It would be worthwhile to
observe that any order or direction which is
likely to have an adverse effect in future,
and there is any apprehension of any kind
of injury to be caused, relief cannot be
denied on a plea raised on the ground that
the petition has become infructuous by
efflux of time. The order which is passed
against the law continues in operation
having all its adverse consequences, which
are likely to adversely affect the rights or
interest of the petitioner, the plea of petition
being
infructuous
would
not
be
entertainable. An order having potential of
likely injury to be caused would ordinarily
not be allowed to remain in operation.
Since it may deprive a person of his rights
and to get justice as due under the law. In
this background, it would be necessary to
quash
the
illegal
order
instead
of
dismissing the writ petition as infructuous.

(17) In view of above, order dated
10.08.2020 passed by the District Inspector
of School being contrary to the provision of
Section 5 of the Act 1971 and without
providing any opportunity of hearing to the
petitioner is arbitrary, illegal and is liable to
be set aside.

(18) Accordingly, the writ petition is
allowed. The order dated 10.08.2020
passed by the D.I.O.S. is hereby quashed.

(19) No orders as to cost.
----------

(2020)10ILR A139
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.10.2020

BEFORE

THE HON'BLE ALOK MATHUR, J.

Misc Single No. 15298 of 2020

M/S Sahara India & Anr. ...Petitioners
Versus
U.O.I., New Delhi & Anr. ...Respondents
140 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Piyush Kumar Agarwal

Counsel for the Respondents:
A.S.G., Akhilesh Pratap Singh

Civil Law-Employees Provident Fund and
Misc. Provisions Act, 1952- Section A -Notice
given to determine liability of Petitioners as an
employer-Petitioner alleges-Commission Agents,
etc., -never employed-theresfore no liabilityimpugned orders are routine orders regarding
proceedings-for producing certain records-neither
records produced neither appear-sought more
time-Provident Fund Commissioner-clothed with
sufficient powers to direct the Inspector to enter,
search and examine-Petitioners not cooperating -
deliberately delaying it since last 7 years-impugned
order not illegal.

Writ Petition dismissed-cost. (E-9)

List of Cases cited:-

1. Deep Industries Limited Vs ONGC, (2019) SCC
online SC 1602

2. Mafatlal Industries Limited Vs U.O.I. (1997) 5
SCC 536

3.: State of Orissa Vs Madan Gopal Rungta, AIR
1952 SC 12

4. Saghir Ahmad & anr. Vs St. of U.P., AIR 1954
SC 728;1044;

5.Rajendra Singh Vs St. of M.P., AIR 1996 SC 2736

6.Tamilnad Mercantile Bank Shareholders Welfare
Assc. (2) v. S.C. Sekar & ors., (2009) 2 SCC 784;

7. Shanti Kumar R. Chanji Vs Home Insurance Co.
of New York, AIR 1974 SC 1719;

8. State of Rajasthan & ors. Vs U.O.I. & ors., AIR
1977 SC 1361

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Sudeep Seth, Senior
Advocate assisted by Sri Piyush Kumar
Agarwal, learned counsel for the petitioners,
Sri Savitra Vardhan Singh, learned counsel
appearing for Union of India and Sri Akhilesh
Pratap Singh, learned counsel for respondent
no. 2, through video conferencing in view of
COVID-19 pandemic.

2. By means of present writ petition the
petitioners have assailed the validity of orders
dated 16.03.2020, 31.07.2020, 24.08.2020,
31.08.2020 and 03.09.2020, passed by the
respondent
no.
2
in
Case
No.
UPLKO0013539000/7A/07/2013
in
proceedings under Section 7A of the
Employees Provident Fund and Misc.
Provisions Act, 1952 (hereinafter referred to
as "the Act of 1952").

3. Sri Sudeep Seth, Senior Advocate
has submitted that petitioner no.1 is a
Partnership firm which was constituted on
01.04.2010 and subsequently there was
change in the partnership deed and the
petitioners firm was again re-constituted on
01.04.2012, while petitioner no.2 is a
partner of the firm..

4. Counsel for the petitioners submits
that the controversy in the present writ
petition relates to the various orders passed
by
the
Regional
Provident
Fund
Commissioner - I, Lucknow (hereinafter
referred to as "the Provident Fund
Commissioner)
in
proceedings
under
Section 7-A of the Act of 1952, for
determining the liability of the petitioners
as an employer under the Act of 1952 .

5. The Provident Fund Commissioner
has embarked upon the enquiry under
Section 7A of the Act of 1952 by giving
notice to the petitioner firm for determining
the number of persons in employment with
the petitioners. It is submitted that there are
number of persons termed as "Commission
10 All. M/S Sahara India & Anr. Vs. U.O.I., New Delhi & Anr.
141
Agents" "Stringers" and "Motivators" who
according to the petitioners do not fall
within the definition of "employee" as
provided in Section 2(f) of the Act of 1952
and therefore contend that they are not
liable to deposit any contribution on their
behalf.

6. It is urged by the petitioners that
they have deposited the contribution of the
Provident Fund with regard to the persons
who they consider as their employees,
while the Commission Agents, etc. have
never been employed/engaged by the
petitioners, therefore they have no liability
to deposit the contribution on their behalf.

7. The grievance the petitioners is that
they are repeatedly being required to
submit various documents, despite the fact
that they have already submitted all the
documents, as required, by the Provident
Fund Commissioner, and as such, requiring
the
petitioners
to
furnish
further
information and documents constitutes
harassment and therefore, it is vehemently
urged that the impugned orders are clearly
illegal and arbitrary and are liable to be set
aside.

8. Learned Counsels appearing on
behalf of Union of India and Provident
Fund Commissioner have submitted that
the Provident Fund Commissioner has
power under Section 7A of the Act of 1952
to hear, inquire into the matter, to
determine
whether
the
"Commission
Agents" etc. are infact employees of the
petitioners or not and for which purpose
under Section 7A(2) of the Act of 1952, the
Provident
Fund
Commissioner
has
sufficient power to enforce attendance,
require for production of documents,
examine witnesses etc., and perusal of the
order sheet would itself indicate that the
petitioners
have
been
wholly
non
cooperative with the Provident Fund
Commissioner in as much as they are
avoiding producing the record as directed,
and
are
clearly
responsible
for
the
pendency of the matter for last more than 7
years. It has been submitted that the
petitioners are bound to provide all the
documents required by the Provident Fund
Commissioner, as the said material is in
possession of the petitioners and only on
examination of such material can the
Provident fund Commissioner determine
the
status
of
"Commissioner
Agents/Stringers and Motivators" as to
whether they fall in the definition of
employee" under the Act of 1952 or not.

9. It has further been disclosed in the
writ petition that several writ petitions have
earlier been filed by the petitioners during
the pendency of the proceedings under
Section 7-A of the Act of 1952 and some of
which are pending consideration and
certain interim orders are holding field.

10.
 Learned
counsels
for
the
respondents have further submitted that
filing of such repeated writ petitions in a
matter where, no order adverse to the
petitioners
has
been
passed
by
the
Provident Fund Commissioner, amounts
abuse of process of law and as such the
present petition is not maintainable under
Article 226/227 of the Constitution of India
and the writ petition deserves to be
dismissed.

11. It is further submitted on behalf of
respondents that perusal of the impugned
order would indicate that they are routine
orders passed during the course of the
proceedings under Section 7A of the Act of
1952 and writ jurisdiction could not be
invoked in such matters. It is further
142 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted that no Fundamental right of the
petitioners has been violated nor is there
any allegation of violation of statutory
provision
and
therefore
present
writ
petition is not maintainable and deserves to
be dismissed at the very threshold.

12. In order to examine the
contentions of learned counsel for the
parties, it is necessary to peruse the
impugned orders passed by the Provident
Fund Commissioner.

IMPUGNED ORDERS

12 (A). The first order which has
been impugned by the petitioners is of 16th
March, 2020 passed by Regional Provident
Fund Commissioner-I, Lucknow . In the
said order it has been recorded that the
learned counsel for the petitioners could
not produce attendance register which he
was directed to produce by means of earlier
order
dated
9th
March,
2020.
The
establishment has not submitted the details
with respect to contribution of provident
fund and other funds and data processing
expenses for which the establishment
representative seeks time to submit. This
order further records that petitioners were
directed to clarify certain heads of balance
sheet for the year 2010-11 showing
withdrawal/transfer
amount
of
Rs.350
Crores reflected therein. Further list of
details of Sahara India field workers as
sought in point no.4 of the proceedings
dated 09.03.2020, have also not been
provided. The establishment was therefore
directed to submit the same by the next
date of hearing.

In the said order , the Provident
Fund Commissioner has also observed that
from the record it has transpires that the
"field
workers"
have
requested
the
petitioners to keep the accumulation of the
fund with them which was later on returned
to their Trust after operations of their bank
account.

The said impugned order also
mentions
that
one
Sanjay
Bajpai,
Enforcement Officer of the Department
raised a point that M/s Sahara India has
submitted that they are complying with the
directions in respect of 22351 employees
and he wants to verify as to how many of
such employees are appearing in the details
of
salary
slips
provided
by
the
establishment for the period of enquiry.
Therefore, he requested that he may be
provided specific details of such 22351
employees including their names, employee
ID No. of establishment, PF Account No.
(if any), date of joining, year wise salary
and allowances details since the date of
joining or for the period of enquiry which
ever is lesser, deduction under various
account heads under the Act of 1952.

12 (B). The second order which
has been impugned is dated 31.07.2020,
wherein it has been recorded by the
Provident Fund Commissioner that no one
has put in appearance on behalf of Sahara
India
Field
Workers
Trust.
Certain
documents
have
been
filed
by
the
petitioners including a copy of the Trust
Deed dated 17.03.2009. With regard to
details of Sahara India Field Workers and
their respective accumulations which were
transferred by the establishment to the
Sahara India Field Workers Trust on
02.12.2010. One Kamal Singh, General
Manager of establishment had stated that
even though these details are available, it is
very difficult to retrieve them and at least
one month time is required to submit the
same. He also submits that it would be his
personal responsibility to submit the
aforesaid information. He also assured the
Provident Fund Commissioner that he
would submit a list of individual Field
10 All. M/S Sahara India & Anr. Vs. U.O.I., New Delhi & Anr.
143
Workers
alongwith
respective
accumulations of Future Fund as on
30.11.2010, which was transferred as part
of Rs.350 crores to Sahara India Field
Workers Welfare Trust on 02.12.2010, in
one month time. The order further records
that the Deputy General Manager of the
Establishment has also assured that he
would submit the attendance list of the
employees alongwith respective Account
no., employee ID and PF deduction details
as well as ledger Account of Sahara India
Field Workers Welfare Trust by the next
date of listing.

12 (C). The third order under
challenge is dated 24.08.2020, on which
date the representative of the petitioners
again sought time to submit the documents
related to the ledger account of Sahara
India Field Workers Welfare Trust. The said
order records that certain documents
submitted by the petitioners and the
Directors of the petitioners had sought
exemption
from
appearance
due
to
COVID-19 pandemic and old age.

The
petitioners
assured
the
Provident Fund Commissioner that they
would provide details of all the Field
Workers
alongwith
their
respective
remittance of contribution made by the
SHICL and SIRECL to Sahara India Field
Workers Welfare Trust by the next date of
hearing.

On the said date, the Branch
Manager
of
Kotak
Mahindra
Bank,
Lucknow also appeared and sought time for
providing information sought by the
Provident Fund Commissioner.

The order in question further
records that cognizance has also been taken
by the High Court by means of order dated
21.12.2018, passed in Writ Petition No.
37087 (M/S) of 2018, where the Court has
observed
that
the
petitioners
would
cooperate in the enquiry. The High Court
has also recorded that the information
sought by the Commissioner must be made
available
to
the
Provident
Fund
Commissioner, in the light of directions of
the High Court which is necessary for
identification of the "Field Workers" as
well as any accumulation in their head, so
that the controversy may be resolved which
is pending for years without any headway,
and that the establishment is legally and
morally bound by the proceedings initiated
under the Act of 1952.

12 (D). The fourth order under
challenge in the writ petition is dated
31.08.2020. On the said date Director for
SICCL Sri A.A.Zaidi appeared before the
Provident Fund Commissioner and was
directed to submit the bank statement with
respect to the Field Workers from April,
2010 to March, 2012. The General
Manager who had assured the Provident
Fund Commissioner that he would supply
all the documents on the previous date, did
not appear and this fact was noted by the
Provident Fund Commissioner in the order.
It has been noted in the order that it is a
common practice of the petitioners that
after committing to provide the documents,
they do not appear on the date fixed, due to
which said proceedings are pending since
last seven years.

the
Provident
Fund
Commissioner after giving due details and
reasons was constrained to record that to
enforce attendance and submission of
documents by the concerned persons
directed Sri Kamal Singh to appear
alongwith record and documents on the
next date of hearing failing which suitable
action against him as well as establishment
would be taken.

the
Provident
Fund
Commissioner also recorded the statement
of Director of SICCL A.A. Zaidi, that his
Company does not appoint any Agent or
144 INDIAN LAW REPORTS ALLAHABAD SERIES
Field Worker and also sought time to
ascertain mode of appointment of workers
of
SICCL.
On
the
said
date
the
representative of the petitioners has also
not submitted ledger account of Sahara
India Field Workers Welfare Trust. The EO
appearing for the Department submitted
that as per general ledger account no.
567555 of Sahara India pertaining to
Sahara India Field Workers Welfare Trust
for the period 01.04.2010 to 31.03.2011 is
submitted by them during proceedings
dated
11.08.2020
and
therefore,
the
Provident Fund Commissioner directed the
establishment to provide copies of the
same.

12 (E). The fifth order under
challenge in this writ petition is dated
03.09.2020. On the said date Sri A.A.
Zaidi, Director SICCL appeared before the
Provident Fund Commissioner and at the
very outset sought more time to submit the
documents which they were required to
produce. No one was present on behalf of
SIRECL and SHICL, despite assurance on
the previous date that relevant documents
would be submitted. Even the General
Manager of the petitioners Sri Kamal
Singh, who appeared did not submit any
document in compliance of earlier orders of
the Provident Fund Commissioner and
again assured that if time is granted he
would submit all the other documents. It
has also come on record that the petitioners
is not cooperating in the proceedings,
though their exists clear direction of the
High Court to the petitioners to extend
whole hearted cooperation in providing
information and documents to come to a
conclusion with respect to the Field
Workers.

In view of the aforesaid the
Provident
Fund
Commissioner
was
constrained to impose cost/penalty of
Rs.5000/- per day till the next date of
hearing for submission of details and
records of proceedings dated 31.02.2020.

13. It was necessary to cull out details
of the impugned orders so as to examine
the nature of the orders which are being
challenged by the petitioners. From the
aforesaid orders impugned in the present
writ petition it clearly transpires that the
petitioners are avoiding production of
documents relevant for the enquiry, which
have been directed by the Provident Fund
Commissioner to be produced. The said
record is necessary so that facts can be
ascertained with regard to the status of
persons deemed to be employees of the
petitioner so that the liability of the
petitioners can be fastened in accordance
with the provisions of the act of 1952.

14. The perusal of the impugned
orders indicate that they only record
proceedings of the day and on the
respective dates the representatives of the
petitioner firm appeared only with a view
to seek further time to produce the
documents and information as directed by
the authority. On certain dates they did not
appear on the date fixed and it has been
categorically recorded by the Provident
Fund Commissioner that the petitioners are
not cooperating in the proceedings which is
clearly contrary to the directions issued by
this Court in Writ Petition No. 37087 (M/S)
of 2018. Vide order dated 03.09.2020, a
cost of Rs.5000/- was also imposed till the
next date of hearing.

15. It is necessary to notice at this
stage that the orders impugned by the
petitioners in the instant writ petition do not
disclose any decision on any point, or any
adjudication on an issue, but only disclose
routine orders. The learned Counsel the
petitioners failed to bring to the notice of
10 All. M/S Sahara India & Anr. Vs. U.O.I., New Delhi & Anr.
145
the court any order or direction which may
have been passed by the Provident Fund
Commissioner by which any rights of the
petitioners has been violated, or any other
order passed in violation of any of the
statutory provisions.

16. The counsel for the petitioners
only submitted that the "Commission
Agents" etc. are not the "employees" of the
petitioner,
and
the
Provident
Fund
Commissioner by requiring production of
such
material/documents
from
the
petitioners pertaining to the engagement of
"Commission Agents", "Stringers" and
"Motivators", amounted to harassment of
the petitioners, and have therefore sought
indulgence of this court to stay the
proceedings and quash the impugned orders
by which the documents/material are being
demanded.

17. During the pendency of the
proceedings under Section 7A of the Act of
1952, several writ petitions have been filed
by the petitioners before this Court
challenging the orders passed during the
course of the proceedings.

18. In the instant writ petition the
petitioners have annexed some orders
passed by this Court. It would be necessary
to go through the said orders as they pertain
to the same controversy arising from the
same proceedings pending before the
Regional Provident Fund Commissioner.

19. The writ petitions filed by the
petitioners so far :

19 (A). In the year 2013, when
the proceedings were at the very inception
and the petitioners had received notice for
submitting
various
documents,
and
subsequently
the
Provident
Fund
Commissioner was constrained to pass an
order stating that in case the petitioners
fails to produce the documents, they have
to resort to search of the premises as
provided in the Act of 1952. Writ Petition
No. 9 (M/B) of 2013 was preferred before
the Division Bench of this Court, and by
means of order dated 03.01.2013, interim
protection was granted to the petitioners to
the effect, that in exercise of power under
Section 7-A of the Act of 1952, liberty was
granted to the respondents to search for the
relevant documents, but were restrained
from seizing the premises. The said writ
petition is still pending. That subsequent
order dated 20.2.2020 passed by the
Division bench of this court in the said writ
petition is relevant and necessary and is
being quoted here in below:-

"1. Heard Mr. Sudip Seth, learned
Senior Advocate assisted by Mr. Piyush
Kumar Agarwal, learned counsel for
petitioners and Mr. Shailendra Srivastava,
learned counsel for respondents.

2. We are surprised to see that in
this case various orders have been passed,
like seizure, search ceiling attachment, etc.,
which were challenged on the ground that
power of seizure is not vested with
respondents authorities. The seizure and
ceiling was stayed but no order was passed
restraining competent authority to pass a
final order in the matter. Still for the last
more than seven years no final order has
been passed. We are surprised to see as to
why matter has not been finalized till date.

3.
Learned
counsel
for
respondents submitted that petitioners is
not cooperating and his conduct is very bad
but that does not mean that respondentscompetent authority cannot pass final
order, if petitioners is not cooperating. It
appears
that
respondents-competent
authority is wholly ignorant of manner in
146 INDIAN LAW REPORTS ALLAHABAD SERIES
which matters are to be decided and
finalized and has no minimum knowledge
in this respect.

4. Let respondent no. 2 and 3
personally should appear before this Court
on 24.3.2020 to explain as to why matter
has not been finalized till date and they are
keeping it pending for last more than seven
years 2 and are only interested in passing
orders which are interlocutory, but no final
order has been passed."

The said petition is pending
consideration.

19
(B).
Subsequently,
Writ
Petition No. 15300 (M/S) of 2017 - Sahara
India Vs. Union and India and Others, was
preferred. Taking into consideration the fact
that the petitioners were not complying
with the directions of the Provident Fund
Commissioner, orders were passed to seize
the bank accounts, aggrieved by which, the
petitioners challenged the order dated
30.06.2017, passed by the Provident Fund
Commissioner. This Court by means of
order dated 21.07.2017 passed an interim
order staying the order dated 30.06.2017.
The petition is pending consideration.

19 (C). Writ petitioners No.
28970 (M/S) of 2017 was withdrawn with
liberty to file fresh writ petition.

19 (D). Writ Petition No. 6267
(M/S) of 2018, preferred by the petitioners
was consigned to record by means of order
dated 2517 of 2018 as the petition did not
conform to order 30 of Code of Civil
Procedure .

19 (E). Writ Petition No. 17351
(M/S) of 2018, was consigned to record
with liberty to file fresh writ petition by
means of order dated 02.07.2018.

19 (F). Further another writ
petition was filed being Writ Petition No.
37087 (M/S) of 2018, by which order dated
08.09.2017
was
challenged
by
the
petitioners. It was also subject matter of
challenge in Writ Petition No. 6267 (M/S)
of 2018 and after detailed discussion, an
interim order was passed on 21.12.2018,
which reads as under :-

"In the end learned counsel for
the
Provident
Commissioner
was
specifically asked as to what was the
amount payable by the petitioners as
contribution under the Act of 1952, he
submitted that the amount infact is not
possible to be calculated. Then he was
asked as how the order would be
implemented when the amount itself is not
clear, he very frankly submitted that at the
moment it cannot be enforced, as the
petitioners has not disclosed the details.
Moreover, he could not at least at this stage
satisfactorily answer the question with
regard to Section 2(f) and 2(b). In this view
of the matter, it is provided that the exercise
as ordered to be conducted by this Court in
pursuance to the earlier orders dated
06.03.2018 and 27.03.2018, passed in Writ
Petition No. 6267 (M/S) of 2018 shall
continue to be conducted by the opposite
parties and based thereon a counter
affidavit shall be filed. The petitioners shall
whole heartedly cooperate in the said
exercise and any avoidance and non
cooperation on their part would be taken
seriously by this Court. As no coercive
action is being taken by the Regional
Provident Fund Commissioner at this stage
as stated by Sri Shailendra Srivastava at
the Bar and in view of what has been stated
by him, as it is not possible to take the same
at this stage, therefore, there is no
requirement to stay the impugned order at
this stage."

20. In the aforesaid writ petition, this
Court after going through the entire factual
matrix of the case and also referring to
various writ petitions preferred by the
petitioners, was of the considered view that
10 All. M/S Sahara India & Anr. Vs. U.O.I., New Delhi & Anr.
147
the Provident Fund commissioner without
recording a finding with regard to the fact
as to whether the "Commission Agents"
were employees of the petitioners, were
being made liable on the basis of primafacie
satisfaction
without
necessary
exercise having been undertaken, and
therefore indulgence was shown by this
Court to a very limited extent. This Court
was of the view that it is not possible for
fastening any liability on the petitioners
without determination of various issues
involved in the case. Primarily, the
controversy pertained to whether the
"Commission
Agents/Stringers"
are
employees of the petitioners firm or not and
only after due determination the question
would
arise
with
regard
to
their
contribution and only thereafter the liability
of the petitioners firm can be fastened.

21. In the light of the above, this
Court was of the view that no amount can
be
recovered
at
that
stage
of
the
proceedings as the amount is not capable of
being quantified. Without determination of
the number of employees of the petitioners,
the Regional Provident Commissioner was
restrained from taking coercive steps
against the petitioners, and the statement of
the Counsel for the Opposite party, to this
effect was recorded. The learned Single
Judge further directed the Provident Fund
Commissioner to proceeded with the
matter, and the petitioners were expected to
whole heartedly cooperate in the exercise.

22. A careful reading of the aforesaid
judgment would indicate that no specific
directions have been issued by this Court,
to the manner in which the proceedings are
being conducted by the Provident Fund
Commissioner, and even otherwise, the
challenge was made only to the process of
recovery issued by the Provident Fund
Commissioner,
without
recording
any
finding with regard to the status of
"Commissioner Agents,
Stringers
and
Motivators".

23. At this stage it is also interesting
to note that the petitioners has repeatedly
stated in the said writ petition that
proceedings before the Provident Fund
Commissioner are to be proceeded only in
accordance with the aforesaid order dated
21.12.2018 and have constantly made
allegations against the Provident Fund
Commissioner that he is not proceedings in
accordance with the said order.

24. In Writ Petition No. 28708 (M/S)
of 2017, the order dated 31.08.2017, passed
by the Provident Fund Commissioner was
assailed and vide order dated 29.11.2017,
this Court had recorded the fact that the
petitioners were ready to furnish a list of
"Commissioner
Agents/Field
Workers/Motivators" to the respondents
within a week.

25. The writ petition no.37087 (MS)
of 2018 is connected with Writ Petitions
Nos. 15274(MS) of 2017, 15277 (MS) /
2017, 15279 (MS) / 2017, 15300 (MS) /
2017, 28708 (MS) / 2017, 6267 (MS) /
2018, and are pending consideration before
this Court. All the writ petitions have been
preferred by the petitioners challenging
various orders passed during the course of
the
proceedings
pending
before
the
Provident Fund Commissioner.

26. The substratum of the case of the
petitioners
is
that
the
"Commission
Agents/Field Workers/Motivators" are not
employees of the petitioners and are not
covered by the definition of employee
given in Section 2(f) of the Provident Fund
and Misc. Provisions Act and therefore no
148 INDIAN LAW REPORTS ALLAHABAD SERIES
liability can be fastened on the petitioners
in this regard.

27. Perusal of the orders which have
been impugned in the present writ petition
would indicate that they are routine orders
regarding the proceedings. Statement of the
parties appearing before the Regional
Commissioner have been recorded therein,
where it shows that the petitioners have
been directed to produce certain records
and they themselves have sought time to
produce the same, but did not either appear
on the next date of listing or sought more
time to produce the record. The conduct of
the petitioners clearly is not in accordance
with the orders of this Court dated
21.12.2018, where the Court had expected
the
petitioners
to
cooperate
in
the
proceedings.

28. Under the Act of 1952, definition
of the "employee" as provided in Section
2(f) of the Act of 1952, is reproduced
herein below :-

"2(f). "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 who gets his wages
directly or indirectly from the employer,
and includes any person-

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

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

29. A perusal of the aforesaid
definition of the term "employee" would
indicate that according to the Act of 1952
''employee' means any person who is
employed in any kind of work manual or
otherwise in connection with establishment
and gets his wages directly or indirectly
from the employer. It is not necessary that a
person has to be directly connected with the
work of principal establishment, but even if
he is somehow connected with the work of
the establishment and gets wages directly
or indirectly from the employer would fall
within the definition of ''employee'. the
Provident Fund Commissioner is totally
within its competence and power to
determine as to who are the employees of
the establishment. The nomenclature of
''employee' will not be determinative with
regard to the nature of his employment and
it is only after detailed enquiry can the
Provident Fund Commissioner can come to
a conclusion whether person or class of
persons is included within the definition of
''employee' as per section 2(f) of the Act of
1952.

30. In the present case, notices were
issued to the petitioners some time in the
year
2013
as
the
Provident
Fund
Commissioner was seeking to examine
whether
"Commissioner
Agents/Field
Workers/Motivators" would be covered
within the definition of "employee" as
provided under the Act of 1952. In
furtherance of enquiry, the Provident Fund
Commissioner was within his competence
to ask the employer ,that is the petitioners,
to submit all the documents, in order to
determine the nature of employment, and as
to
whether
they
i.e.
"Commissioner
Agents/Field Workers/Motivators" would
fall within the definition of term ''employee'
as defined under the Act of 1952, and
consequently liability if any of the
petitioners.

31. In order to make necessary
enquiry the Provident Fund Commissioner
10 All. M/S Sahara India & Anr. Vs. U.O.I., New Delhi & Anr.
149
is clothed with sufficient powers to direct
the
Inspector
to
enter,
search
any
establishment/premise and examine any
relevant matter as provided for in Section
7-A(2) of the Act of 1952.

32. In light of the provisions
contained in the Act of 1952, the issue to be
decided
by
the
Provident
Fund
Commissioner, is as to whether the persons
termed
as
"Commission
Agents",
"Stringers" and "Motivators" fulfill the
conditions prescribed in Section 2(f) of the
Act of 1952 or not. For coming to any such
decision or a finding, the course open for
the Provident Fund Commissioner is to
seek information from the employer i.e. the
petitioners, from which he can determine
the relationship between the petitioners and
"Commission Agents", "Stringers" and
"Motivators", but the petitioners are not
cooperating and submitting documents and
material, as clearly recorded by the
Division
Bench
in
its
order
dated
20/02/2020 and also by the learned Single
Judge.

33. It is necessary to refer to one of the
orders in the series of writ petitions preferred
by the petitioners which is Writ Petition No.
37087 (M/S) of 2018, in which order dated
31.07.2019 was passed, where this Court has
also recorded that, "the said writ petition
pertains to same dispute as raised by the
petitioners in Writ Petition No. 28708 (M/S)
of 2017 - M/s Sahara India Financial
Corporation Ltd. Vs. Union of India and
Another". In the said order this Court had
sought information from the petitioners on
three points stated therein namely :-

"1. Whether company, SIFCL, is
having license from the Reserve Bank of
India for running NBFC activities, for the
purposes of which Commission Agents are
required.

2. Whether looking into the fact
that the Management and Stock Holders in
both firms and company are nearly the same
and both of them can be clubbed together as
one establishment for the purposes of ESI.

3. Whether any evidence was filed
before the authority concerned before passing
of the impugned order, with regard to the
relationship between company and the
alleged Commission Agents."

34. At the very outset it is noticed that
the said order has not been disclosed by the
petitioner in the entire writ petition. The
petitioners in the instant writ petition have
deliberately concealed the said order, thereby
conveniently
avoiding
to
answer
the
inconvenient questions posed by this Court in
the aforesaid order dated 31.07.2019.

35. The petitioners also could not
respond to the query raised by this Court in
its order dated 21/07/2019 passed in Writ
Petition No. 37087 (MS) of 2018, as to
whether they are having any license from
the Reserve Bank of India for running Non
Banking Financial Corporation activities,
and in case the answer is in negative, then
how could they engage "Commission
Agents" when they were not involved in
business of banking. Instead of pursuing
their remedy in the writ petitions already
preferred by them earlier, pertaining to the
same subject matter. The petitioners have
filed number of petitions, raising the same
issue, time and again, without placing all
the material before this Court as directed in
Writ Petition No. 37087/2018 nor are they
cooperating in the proceedings before the
Regional Commissioner. No averment has
been made in this regard in the writ
petition.
150 INDIAN LAW REPORTS ALLAHABAD SERIES

36. The aforesaid questions raised by
this Court were extremely pertinent and the
answers would have been extremely helpful
in deciding the controversy as raised by the
petitioners before the Regional Provident
Fund Commissioner.

37. From the bare reading the order
dated 31.07.2019 passed in Writ Petition
No. 37087 (M/S) of 2018 makes is clear
that the petitioners have contended before
this
Court
that
they
had
appointed
Commissioner Agents
to
collect
the
premium from various individuals which
was to be collected by M/s SIFCL which
was "Non Banking Financial Corporation",
registered by the Reserve Bank of India.
The said license was annulled by the
Reserve Bank of India some time in the
year 2013, but still the said "Commission
Agents" etc. continued to be retained with
the petitioners and in this context this Court
had made above query, as to why the so
called Commission Agents were continuing
when the company ceases to function as a
Non Banking Financial Corporation.

38. Perusal of the writ petition would
indicate that the petitioners has not even
attempted to place relevant records or
attempted to answer the question as sought
by the Court and have instead instituted
fresh proceedings by filing the instant writ
petition.

39. From a bare perusal of the details
of the writ petitions filed by the petitioners,
as well as the orders passed by this Court, it
is clear that the petitioners were repeatedly
seeking interference from this Court so as
to
stall
the
proceedings
before
the
Provident Fund Commissioner, inasmuch
as, they are reluctant from providing
information with regard to the so-called
"Commission
Agents,
Stringers
and
Motivators" to enable the Provident Fund
Commissioner to arrive at a finding as to
whether they are employees of the
petitioners and consequently their liability
under the Act of 1952. It has also to be
borne in mind that this Court has repeatedly
directed the petitioners to cooperate in the
proceedings, but a bare perusal of the
impugned orders clearly show beyond
doubt, that the petitioners are avoiding
placing
all
the
material
before
the
Provident Fund Commissioner, and are
repeatedly approaching this Court by filing
successive
writ
petitions
challenging
routine orders passed in proceedings under
section 7A of the Act of 1952 which can be
clearly termed as an abuse of the process of
the court.

40. Perusal of orders impugned in the
present writ petition as noted herein above
do not decide any issue or lis between the
parties but merely record the proceedings
conducted on the said date.