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Sec. 2(f) of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (‘Act’ for short) defines the term ‘employee’ as 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 get 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.
Many litigation arises in interpreting the term ‘employee’ under this Act. Some issues in this regard may be discussed in this article.
The terms of the definition ‘employee’ are wide. They include not only persons employed directly by the employer but also persons employed through a contractor. Moreover, they include not only persons employed in the factory but also persons employed in connection with the work of the factory. For example a home worker in beedi industry, by virtue of the fact that he rolls beedies, is involved in activity connected with the work of the factory. Under the statutory definition even if a person is not wholly employed, if he is principally employed in connection with the business he would be a person employed within the meaning of the term ‘employee’. In ‘Springdales School and others V. Regional Provident Fund Commissioner andanother’ – 2006 (2) LLJ 321 the High Court held that an employee would be treated as working in or in connection with the work of the establishment if it can be ascertained that he is discharging his duties exclusively related to the work of the establishment.
It was held in ‘Satish Plastics V. Regional Provident Fund Commissioner’ – 1981 (XXII)GLR 686 that the definition of ‘employee’ as it contained in Section 2(f) of the Act is wide enough to take within its sweep a person permitted to work his residence as well and further that even if a person is not employed but was principally employed in connection with the business of the shop, would be a person employed within the meaning of the statutory language.
In ‘Shahdol V. Regional Provident Fund Commissioner and another’ – 2005 (4)LIC 4091 the MP High Court held that the person coming in the truck to unload the bamboos in the factory premises falls under the definition ‘employee’ for all practical purposes. In ‘Padiyur Sarvodaya Sangh V. Union of India, New Delhi and another’ – 1999 (2) LLN 224 the Madras High Court held that the artisans, weavers, workers of sarvodhaya sangh are covered under the definition of ‘employee’. The Jaipur Bench of the Rajasthan High Court held in ‘Alwar Central Co-operative Bank Limited V. Regional Provident Fund Commissioner andothers’ – 2007 (113) FLR 310 that the managers of the primary agricultural co-operative society are employees of the particular bank and not employees of particular gram sewa sahakari samiti.
The following categories are not covered under the terms of the definition ‘employee’:
- The Patna High Court in ‘Union of India V. Patna Tyre House Private Limited’ - 2004(3) LLN 397 held that the directors are not ‘employees’ even if they get remuneration;
- The Act would be applicable to the regular employees and not to the employees for casual work as held in ‘Lakshmi Restaurant, New Delhi V. Regional Provident FundCommissioner, Delhi and another’ – 1975 LIC 1186;
- By amendment introduced by Act 33 of 1988, the definition of ‘employee’ included a person employed by or through a contractor or engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961. The definition of ‘employee’ brings in contract labor within the scope of Sec. 1(3) of the Act; but casual labor engaged by or through a contractor falls outside the scope of Sec. 1(3); The contractor for the purpose of Section 2(f) is clearly a labor contractor and not an independent contractor who contracts to supply finished product to the establishment but for the purpose of manufacturing of such finished products engages his labor for his own purpose as held in ‘Karachi Bakery V. Regional Provident Fund Commissioner’ – 1990 (2) LLN 630;
- The Bombay High Court in ‘Prakash D. Shah and others V. Union of India through theMinistry of Finance and another’ – 2004 (I) LLJ 943 held that the partner of the firm cannot be construed as an employee. The reason for this decision is further explained in ‘Om Roller Flour Mill V. Union of India’ – 2002 (3) LLJ 228 in which it was held that partners cannot be included in employees’ category to satisfy the requirement of minimum number of employees, as one person cannot at same time be employer and employee;
- In ‘Lohardaga Charitable Ursuline Society V. Union of India’ – 2003 (2) LLJ 554 it was held that the contention that nuns and sisters of a religious order are also employees without any evidence on record is not justified;
- The Division Bench of Bombay High Court in ‘Reverend Father Agnelo Gracies V.Regional Provident Fund Commissioner for Maharastra and Goa at Bombay’ – 2005 (2)LLJ 132 held that the priests in seminary are not covered under the definition of ‘employee’;
- In ‘Regional Provident Fund Commissioner V. Hotel Highway Limited’ – 1991 (79) FJR190 it was held that the trainees undergoing training with the management and not paid wages will not fall within the definition of ‘employee’;
- In ‘Regional Provident Fund Commissioner V. M/s Central Arecanut & Cocoa Marketingand Processing Co-op Limited, Mangalore’ – 2006 (1) LLN 529 it was held that the trainees who were paid stipend during the training period had no right to employment, nor were under obligations to accept any employment, even if offered by the employer. The two member bench of the Supreme Court held that ‘apprentices’ engaged under the Standing Orders of the establishment cannot be said to be employees in terms of Sec. 2(f) of the Act.