JUDGMENT
M. Ramachandran, J.
1. Proceedings initiated by the respondents for bringing a Courier Service under the purview of the Provident Fund Act and the Scheme are in challenge.
2. The enforcement authorities under the EPF Act had taken steps to bring the establishment under the coverage of the Act, under the scheduled head “Forwarding Agencies”. This industry had been included by notification as GSR 1796 dated 9.12.1964. They were emboldenned to take these steps, according to them, since the nature of business carried on by the petitioner was akin to those activities referred to in the said notification and also taking note of the fact that the petitioner was employing 20 persons with effect from 1.4.1995.
3. As the petitioner had not showed co-operation in the matter of enquiry, a coverage notice had been issued as proposed. It is seen that an Original Petition had been filed as O.P. No. 11138 of 1999 challenging the proceedings. This Court had observed that before enforcing the provisions of the Act a decision initially had to be taken by the Provident Fund Commissioner regarding the applicability of the Act to the establishment under Section 7A of the Act and then only the issues ot coverage, quantum etc., could be determined.
4. Thereafter, further notices had been issued and even though the petitioner had not made available full records, as had been required to be produced, after hearing the parties, the Commissioner came to a finding that the services rendered by the petitioner fell within the ambit of notification GSR 1796. According to them, the notification encompassed coverage of different activities and as courier service was essentially a concept for delivery of articles, there was no difficulty in interpreting the notification so as to bring the courier service also within its fold. By Ext. P9 order dated 7.1.2000, it was held that the petitioner’s establishment is to be covered under the notification as above with effect from 22.7.1997 and steps were further taken for assessing the dues payable. At this stage, the petitioner had filed a statutory appeal before the Employees Provident Fund Appellate Tribunal, New Delhi. By Ext. P10 order, the Appellate Tribunal concurred with the findings of the Provident Fund Commissioner and dismissed the appeal with the following observations:
“On interpretation of Statutes, his Lordship Hon’ble Justice V.R. Krishna Iyer of the Hon’ble Supreme Court has said that words are empty vowels and Judges have to till it with meaning. Having regard to the job of courier services one cannot deny that they are doing only forwarding work because they receive the packages and carry it to the destination. Having regard to the purpose of the Act, which is to provide social security to the workers it, is immaterial that courier services work is not similar to that of clearing and forwarding agents. In the notification word are is used, therefore, it is not necessary that the forwarding agents should first pack the goods and then forward. To my mind, even if the forwarding agent is forwarding the goods as he receives it even then he would be covered under the Notification.”
These orders are under challenge.
5. The petitioner submits that the reasoning of the authorities are not supportable and unless there was clear indication i,n the statute it would not have been impermissible for the authorities under the Act to cover an establishment which did not come within the purview of the Act by purposive interpretation or by any other process known to law. They alleged that the approach of the Authorities under the Act were purely mechanical and the materials that had been placed before the authorities had not been considered and hearing offered was only a formality, since the issue has already been predecided.
6. These submissions were opposed by the learned Standing Counsel for the respondents, who maintained that the order could not have been faulted. The petitioner also referred to a notification of the Central Government dated 22.8.2002, in exercise of the powers conferred by Sections 5 and 7(1) of the Act, and the Central Government had amended the scheme, and in Clause (b) of sub-paragraph (3) of the paragraph 1, an item had been additionally incorporated whereunder courier services also were specifically brought within the purview of the Act. According to the Standing Counsel, this was to explain a situation which already was there and there was no justification or necessity to interfere with the coverage or of the confirmation order passed by the Appellate Authority.
7. Under Section 1(3) of the EPF Act, it is provided that the Act stand extended to every establishment engaged in any industry specified in Schedule I in which 20 or more persons are employed and to any other establishment employing 20 or more persons which the Central Government may by notification in the official gazette bring under coverage. Admittedly, courier service was not one included in any notification but the attempt was to bring the activity within the four corners of entry relating to forwarding and clearing agents. By GSR dated 7.12.1964, establishments engaged in forwarding and clearing of Cargo from and to overseas and within India were brought within the purview of the Scheme. The same notification also included forwarding agents engaged in the col lection, packing, forwarding or delivery of any goods, including car loading, break bulk service and foreign freight service and thus these activities stood covered. The question is whether these entries are capable of being understood as taking within its fold a courier service as well.
8. Courier service is not defined under the EPF Act. For the purpose of Service Tax Act “Courier Agency” means a commercial concern engaged in the Door to Door transportation of time sensitive documents, goods or articles utilising the service of a person either directly or indirectly, to carry or accompany such documents, goods or articles, see the Finance Act, 1994. A comparison of the entry “Forwarding Agency” with that of a firm engaged in courier business would show that one is totally different from the other. Even when a term is defined in a statute, it is not absolutely essential that the word has to be understood as per the definition alone, since at times it may be necessary to impart a meaning other than that has been given in the definition clause subject to circumstances and context of a particular section and situation. In the decision reported in 1982 KLT Short Notes 63 (Case No. 97) Madras Rubber Factory Ltd. v. Rubber Board – it has been held as following:
“However, there is an exception to this normal rule; if in the subject or context of a particular section it appears that there is something repugnant so that the definition cannot be fitted in, the Court is at liberty not to construe the word occurring in that section in the manner in which it has been defined.”
A Division Bench of this Court in the decision reported in 1984 KLT 65 had approved the observations made by Mr. Justice M.S. Menon, as he then was, in a reported case in 5 STC 348 – Varkey v. A.I.T. & Rural Sales Tax Officer.
“It is, I apprehend, in accordance with the general rule of construction in every case, that you are not only to look at the words, but you are to look at the context, the collocation, and the object of such words, relating to such a matter, and interpret the meaning according to what would appear to be the meaning intended to be conveyed by the use of the words under such circumstances.”
Again in 1984 KLT Short Notes 49 (Case No. 84) – Mysore Essential Oil Industries v. Collector of Customs – this Court had observed as following:
“It is true that for determining as to whether a particular item falls within a particular entry or not, or as to whether it is governed by a particular entry, the authorities have to find out on the basis of relevant facts, how it is understood in common parlance or in the commercial world or trade circle. This is the ordinary rule. In so doing, one can refer to the dictionary. But, that will not prevail or be conclusive. This is so only if the relevant word used in the taxing statute is one of every day use. In that case alone, it must be construed as understood in common parlance and it must be given its popular sense, meaning thereby that sense which people conversant with the subject matter with which a statute is dealing would attribute to it.”
In the above background, we may further examine whether the respondents are justified in coming to a conclusion that forwarding agents are in fact couriers and whether couriers are forwarding agents as well so as to be worthy of being included within the coverage of the earlier notification.
9. In Blacks Law Dictionary, 7th Edition, a courier is described in the following manner: “a messenger, especially one who delivers parcels, packages and the like.” Whether a courier can have the status of a forwarding agent can also be examined from this angle, by attempting to examine the meaning assigned to the term “agent”. Agent is one who is authorised to act for or in the place of another, namely a representative. The term is used with reference to relations with a member. Agent can be an employee as well. A forwarding agent is a person or a firm whose business is to receive and shift goods for others and act on behalf of the principal. If so viewed, an agent is generally a person who is recognised as having competence to represent another person in his capacities, at certain levels, and on certain terms.
10. But can we assign the same status or position to a courier. According to me, that will be outrageous. Courier is only a messenger and he neither represents the principal, nor can be bind him in any manner. The scope, purport and connotation of the two arrangements are distinct and one is not synonymous for the another.
11. The respondents have therefore, according to me, committed an error in relying on a purposive definition so as to find that the petitioner, who is carrying on a courier service can be aptly described as a person who is engaged in forwarding and clearing work.
12. The subsequent conduct of the Government, as evidenced by the notification dated 22.08.2002, which is issued during the pendency of the O.P., amply makes it clear that though the respondents had taken a view against the petitioner, the mind of the Government was not certain, and by a specific entry, courier services have been given a place in the schedule. This is as it ought to be, and the petitioner do not at all challenge the notification.
13. Therefore, I hold that the petitioner will if at all be liable to be covered only with effect from the date of the new notification, namely, 22.08.2002. Exts. P9 and P10 are quashed. The Original Petition is allowed.