Employer-employee relationship not necessary for PF: HC letter to PM case

S Shyam Prasad | NT

Bengaluru: Dismissing a petition filed by the Express Publications (Madurai) Ltd against the Provident Fund Commissioner and a photographer working for it, the High Court has held that “it is not necessary for a master and servant relationship to be established for a person to claim benefit under the EPF Act, it is sufficient if a person were to be drawing wages as regards the work done for the establishment.”

The court has also refused to intercede in the issue between the company and the Employees Provident Fund Organisation since the proceedings are still pending before the agency. The HC said that the EPFO has only passed an order in which the issue related to whether the photographer was an employee or not was the question.

The “aspect of payment or otherwise of provident fund amount, interest thereon, etc would have to be considered by,” the Regional Provision Fund Commissioner of the EPFO the HC said refusing to intervene on those issues.

Nagesh Pollali, a contract photographer working for Express Publications (Madurai) Ltd, a publisher of newspapers, had written to the Prime Minister of India seeking enrollment under PF and sought his intervention in the issue. The PM had referred the issue to the Regional PF Commissioner. The company had intervened and sought to determine the issue of the employer-employee relationship.

The commissioner in his order on October 29, 2020 held that Pollali was an employee of Express Publications (Madurai) Ltd. This was challenged in the HC. The company submitted that Pollali was only a contract employee and not an employee.

The contracts were for a limited period, and he was paid a consolidated amount. He was not subject to the rules and disciplinary proceedings of the company and was free to work for others too. He was a freelancer who did not work exclusively for it.

Income tax was deducted under Form 16 for regular employees and Form 16A for contract employees. Apart from the employeremployee relationship, the HC also rejected the contention that photographers were not journalists.

“Even a newspaper photographer is included in the said definition of a working journalist. Therefore, I am of the considered opinion that contention of the petitioner that a news photographer is not a working journalist is required to be rejected,” the HC said.

The court also found it strange that a newspaper was trammeling upon the rights of its own employees. “This is rather a strange case where the 4th Estate, which is vested with the duty to safeguard the rights of the people or bring to light any injustice caused to the citizens has itself indulged in trammeling upon the rights of its own employees, requiring a photojournalist to approach the Hon’ble Prime Minister for redressal of his grievances.”

The HC held that the contract drawn by the company was a subterfuge against the employee. “I am of the considered opinion that the methodology of a contract made use of by the petitioner is only a subterfuge to cover the employment and to organise the business of the petitioner in such a way to minimize its payout by reducing the entitlement of 3rd Respondent, which is not permissible.”

The court said that this was an additional finding. “This finding being in addition to the finding above that even a contractual employee engaged directly or indirectly would be entitled for provident fund contribution,” the HC said.