Kerala High Court
M/S. Malabar Dazzle India Pvt. Ltd vs Employees Provident Fund Appellate ... on 15 October, 2024
Author: D. K. Singh
Bench: D. K. Singh
WPC Nos.7245 & 29166 of 2014
And 30357 of 2021
1
2024:KER:76265
C.R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE D. K. SINGH
TUESDAY, THE 15TH DAY OF OCTOBER 2024 / 23RD ASWINA, 1946
WP(C) NO. 7245 OF 2014
PETITIONER:
THE EMPLOYEES PROVIDENT FUND ORGANIZATION,
REPRESENTED BY ASSISTANT PROVIDENT FUND COMMISSIONER, SUB
REGIONAL OFFICE, P.B.NO.1895, KALOOR, KOCHI-682 017.
BY ADV. NANDAKUMAR (SR.)
By ADV.N.N.SUGUNAPALAN (SR.)
RESPONDENTS:
1 M/S.MALABAR COCHIN ARCADE (P) LTD.,NO.40/515 A, M.G.ROAD,
KOCHI-682 011, REPRESENTED BY ITS MANAGING DIRECTOR.
2 THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL
SCOPE MINAR, 4TH FLOOR, CORE-2, LAXMI NAGAR, NEW DELHI-110
092, REPRESENTED BY ITS REGISTRAR.
BY ADVS.
BENNY P. THOMAS (SR.)
M.GOPIKRISHNAN NAMBIAR
K.JOHN MATHAI
JOSON MANAVALAN
KURYAN THOMAS
NITA N.S. - SC EPF
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.07.2024,
ALONG WITH WP(C).29166/2014, 30357/2021, THE COURT ON 15.10.2024 DELIVERED
THE FOLLOWING:
WPC Nos.7245 & 29166 of 2014
And 30357 of 2021
2
2024:KER:76265
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE D. K. SINGH
TUESDAY, THE 15TH DAY OF OCTOBER 2024 / 23RD ASWINA, 1946
WP(C) NO. 29166 OF 2014
PETITIONER:
M/S. MALABAR DAZZLE INDIA PVT. LTD.,EDAPPAL, MALAPPURAM-679 576,
REPRESENTED BY ITS DIRECTOR, MR.RATHIN.
BY ADVS.
NANDAKUMAR (SR.)
M.GOPIKRISHNAN NAMBIAR
BENNY P. THOMAS (SR.)
K.JOHN MATHAI
JOSON MANAVALAN
KURYAN THOMAS
RESPONDENTS:
1 EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL,
SCOPE MINAR, CORE II, 4TH FLOOR, LAXMI NAGAR DISTRICT CENTRE,
LAXMI NAGAR, NEW DELHI-110 092.
2 THE ASST. PROVIDENT FUND COMMISSIONER,EMPLOYEES PROVIDENT FUND
ORGANIZATION, SUB REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN,
P.B.NO.1806, ERANHIPALAM, KOZHIKODE-673 006.
3 THE MANAGER,
STATE BANK OF TRAVANCORE, EDAPPAL, MALAPPURAM-679 576.
BY ADVS.
SRI.THOMAS MATHEW NELLIMOOTTIL,SC, P.F.
K.JAYESH MOHANKUMAR
PUSHPARAJAN KODOTH
T.SETHUMADHAVAN (SR.)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.07.2024, ALONG WITH
WP(C).7245/2014 AND CONNECTED CASES, THE COURT ON 15.10.2024 DELIVERED THE
FOLLOWING:
WPC Nos.7245 & 29166 of 2014
And 30357 of 2021
3
2024:KER:76265
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE D. K. SINGH
TUESDAY, THE 15TH DAY OF OCTOBER 2024 / 23RD ASWINA, 1946
WP(C) NO. 30357 OF 2021
PETITIONER:
M/S MALABAR GOLD PRIVATE LTD., (FORMERLY KNOWN AS MALABAR GOLD,
ORNAMENTS MAKERS PRIVATE LTD.), 17/1491C, 2ND FLOOR, MALABAR GATE,
RAM MOHAN ROAD, PUTHIYATHAR POST, KOZHIKODE-673 004, REPRESENTED
BY BY ITS AUTHORISED SIGNATORY, PRESENTLY FUNCTIONING AT 16/501 M,
MOUNTANA ESTATE, PAINGOTTUPURAM, PERINGALAM P.O, CALICUT 673 571.
BY ADVS.
NANDAKUMAR (SR.)
M.GOPIKRISHNAN NAMBIAR
K.JOHN MATHAI
JOSON MANAVALAN
KURYAN THOMAS
PAULOSE C. ABRAHAM
RAJA KANNAN
SHILPI M.LAL
RESPONDENTS:
1 ASSISTANT PROVIDENT FUND COMMISSIONER,
EMPLOYEES PROVIDENT FUND ORGANIZATION, SUB REGIOANL OFFICE,
ERANHIPALAM P.O, KOZHIKODE 673004.
2 CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL,
X78V+ C45, PRIYA SQUARE, ERNAKULAM-682016.
BY ADVS.
NITA N.S. - SC EPF
ABRAHAM P.MEACHINKARA
SUNIL J., CGC
SHRI.VISHNU PRADEEP, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.07.2024, ALONG
WITH WP(C).7245/2014 AND CONNECTED CASES, THE COURT ON 15.10.2024 DELIVERED THE
FOLLOWING:
WPC Nos.7245 & 29166 of 2014
And 30357 of 2021
4
2024:KER:76265
[WPC Nos.30357/2021, 29166/2014 and 7245 of 2014]
JUDGMENT
In these Writ Petitions, almost common questions of law and facts are involved. Therefore, the Writ Petitions were heard together and are being disposed of by a common judgment.
However, the facts of each Writ Petition are taken note of hereunder.
WPC(c) No.29166 of 2014
2. This Writ Petition has been filed by the petitioner company having its registered office at Kozhikode and a showroom at Malappuram. The company is engaged in the sale of jewellery and allied products. The establishment of the petitioner is covered under the Employees Provident Fund Scheme.
3. The petitioner had commenced business in the year 2007. It is the case of the company that at that time the WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 5 2024:KER:76265 petitioner establishment enrolled all eligible employees except trainees under the Employees Provident Fund Scheme and started remitting contributions for the enrolled employees. The petitioner's standing orders were certified by the competent officer on Ist July 2011 under the provisions of the Industrial Employment (Standing Orders) Act, 1946.
4. The Enforcement Officer conducted an inspection and based on the report of the Enforcement Officer, the second respondent initiated proceedings under Section 7A of the Employees Provident Fund Act alleging non-payment of contribution in respect of the trainees engaged by the petitioner during the period July 2007 to September 2011. A show cause notice was issued to the petitioner to which the petitioner had filed a reply. The second respondent, the Assistant Provident Fund Commissioner, however, proceeded to assess the dues in respect of 46 trainees for the period from July 2007 to September 2011 and an order was passed for an amount of Rs. WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 6 2024:KER:76265 11,12,070/- in respect of non-payment of contribution by the petitioner in Ext.P3 dated 15th June 2012.
5. The petitioner has challenged the said order by filing a statutory appeal before the first respondent. However, the first respondent had dismissed the appeal filed by the petitioner against the order dated 15th June 2012 passed by the second respondent vide order dated 8th April 2014 in Ext.P5. An order under Section 8F of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 has been issued by the second respondent to the third respondent on condition that on payment being made by the petitioner in compliance with the order, the petitioner would stand discharged from the liability in accordance with the provisions of clause (viii) of sub section- 3 of section 8F of the Act. These orders are under challenge in this Writ Petition.
WPC No.30357 of 2021
6. The petitioner got incorporated as a private limited WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 7 2024:KER:76265 company on 19 June 2001. The petitioner company is engaged th in the manufacture of gold ornaments, jewel ornaments and allied products and it is also supplying gold and jewel ornaments to other units of its group of companies. It is covered under the provisions of the Employees Provident Fund & Miscellaneous Provisions Act, 1952.
7. The petitioner claims to have enrolled all the eligible employees except trainees under the provident fund scheme from the date of commencement of its business. The petitioner's standing orders under the provisions of the Industrial Employment (Standing Orders) Act, 1946 were certified and the standing orders came into force with effect from Ist January 2005.
8. The Enforcement Officer inspected the premises of the petitioner and based on the report of the Enforcement Officer, the first respondent issued a notice proposing to conduct an enquiry under Section 7A of the Act of 1952 in WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 8 2024:KER:76265 respect of non-payment of contribution by the petitioner for the trainees engaged by the petitioner. The petitioner submitted its reply and made submissions. However, the first respondent passed the order on Ist October 2015 holding that the petitioner is liable to make contribution in respect of the trainees under the provisions of the Act, 1952 and assessed an amount of Rs.23,62,920/- as outstanding dues for the period from 09/2014 to 03/2015 vide Ext.P2 order. Aggrieved by the said order passed by the first respondent, the petitioner preferred an appeal before the Employees Provident Fund Appellate Tribunal, New Delhi. The said appeal was admitted on 19 th August 2019 and an interim stay was granted against Ext.P2 order passed by the first respondent on a condition to remit 40% of the assessed amount as pre-deposit. The petitioner had complied with the said direction and remitted an amount of Rs.9,45,168/- on 30th August 2019. The second respondent, however, dismissed the appeal vide impugned order dated 3rd WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 9 2024:KER:76265 May 2021 in Ext.P9. The orders passed by the first and second respondents in Ext.P2 and P9 are under challenge before this Court.
WPC No.7245 of 2014
9. This Writ Petition has been filed by the Employees Provident Fund Organisation impugning the order dated 2 nd April 2013 passed in appeal, ATA No.340(7) of 2010 by the Employees Provident Fund Appellate Tribunal in Ext.P4. The first respondent company registered as a Private Limited Company under the provisions of the Indian Companies Act, 1956 and is covered under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. The first respondent company is engaged in the business of jewellery and allied products and the said activity is covered by the scheduled head 'Trading and Commercial'.
10. The Enforcement Officer appointed under Section 13 of the Act of 1952 visited the establishment in order to ascertain WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 10 2024:KER:76265 compliance under the Act of 1952 and reported that the establishment had not enrolled all the eligible and entitled employees under the EPF Scheme as mandated under the Act. As per the report of the Enforcement Officer, in addition to the regular employees, the establishment had also engaged several paid trainees from the date of coverage and these paid trainees were not enrolled under the EPF Scheme in violation of the statutory provisions. It was further reported by the Enforcement Officer that there were 66 employees at the time of coverage of the establishment and the employer had remitted contribution only in respect of seven employees and the employer claims that the remaining 59 employees were trainees who were not eligible for enrolment under the provisions of the Act of 1952. The number of such trainees was more than the number of employees which varies from month to month. The number of trainees thereafter increased to 88. Even the Drivers, Attenders, Electricians, Receptionists, Accountants etc. were WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 11 2024:KER:76265 put in the categories of trainees and the benefits under the Act were not extended to them and they were paid wages in the name of stipend.
11. An enquiry under Section 7A of the Act of 1952 was initiated by the competent authority in order to determine the dues defaulted by the petitioner in respect of the non-enrolled employees. A notice dated 7th January 2010 was issued to the petitioner fixing the enquiry on 4th February 2010 wherein the production of necessary records and appearance in person or through an authorised representative was granted. On the date of appearance, the counsel who appeared on behalf of the respondent company failed to produce the copies of balance sheet, profit and loss account, general ledger and cash book for the year 2007-2008 and 2008-2009 and promised to produce the same along with the documents under Shops and Establishments Act, Factories Act etc. In view thereof, the hearing was adjourned to 12th April 2010. In the reply, the WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 12 2024:KER:76265 respondent raised two grounds:
(A) The non-enrolled persons engaged in the establishment were covered by the Certified Standing Orders and as such they did not fall under the definition of "Employees" as provided in the Act of 1952.
(B) Sale Executives, Trainees, and Apprentices were given training in the field of analysing the purity of ornaments, repairs of ornaments, billing, cash handling, placing orders for purchasing ornaments, receiving orders for ornaments, ways and methods to be adopted for promoting business and to win over the customers, maintaining general customer relations, rectifying minor repairs of electronic devices for weighing ornaments, packing of ornaments etc.
12. On conclusion of the proceedings under Section 7A of the Act, an order Annexture-A6 was passed assessing an amount of Rs.11,46,787/- as the amount of dues payable by the establishment for the period from May 2007 to June 2009 in respect of non-enrolled employees subject to the provisions for determination of the escaped amount, if any found later, under Section 7C of the EPF Act. The establishment was directed to WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 13 2024:KER:76265 remit the amount within 15 days of receipt of the said proceedings.
13. The establishment filed Ext.P1 Appeal No.ATA 340(7) of 2010 before the EPF Appellate Tribunal, New Delhi challenging Annexure A-6 order. The appeal was disposed of vide the impugned order dated 2nd April 2013 holding that the standing orders certified by the Certifying Officer were valid and the respondent establishment could appoint the apprentices in accordance with the standing orders as certified by the Certifying Officer and as the apprentices were appointed under the certified standing orders of the respondent establishment and they were not discharging the regular nature of jobs, the apprentices could not be treated as the employees within the meaning of Section 2(f) of the EPF Act. The said order is under challenge in the present Writ Petition.
14. Heard Sr.Adv.Sri.P.Nandakumar assisted by Adv.Ms. Pooja Menon for the petitioners in Writ Petition No.29166/2014 WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 14 2024:KER:76265 and 30357/2021 and Mr.Abraham P.Meachinkara, learned counsel for the respondents in the aforesaid Writ Petition. Same counsels have appeared in Writ Petition (c) No.7245/2014 for the opposite parties i.e. for the respondents in the Writ Petition.
15. Sri P.Nandakumar, learned counsel for the petitioner, has submitted that Section 2 of the Act of 1952 defines the employees to include an apprentice, but makes an exclusion in the case of an apprentice engaged under the Apprentices Act or under the standing orders. Therefore, an apprentice engaged under the Apprentices Act or under the standing orders which excluded from the definition of an 'Employee' as per Section 2 of the Act. It is further submitted that once the standing order is certified, it will remain in force till the same is cancelled.
16. The question which falls for consideration before this court in these writ petitions is whether the trainees WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 15 2024:KER:76265 appointed by the petitioners are to be enrolled under the EPF Scheme as per the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 ('The EPF Act' for short).
17. Sri. P Nandakumar, the learned Senior counsel assisted by Ms. Pooja Menon, has submitted that, once the standing order is certified, it will remain in force till it is cancelled. The definition of the 'industrial establishment' as defined in Section 2(e) of the Industrial Employment (Standing Orders) Act, 1946 ('the IESO Act' for short) was amended in the year 2013, and therefore, the view taken by the EPF authorities that the IESO Act would not be applicable to the petitioner, as it does not fall within the definition of the industrial establishment as defined in Section 2(e) of the IESO Act is patently unsustainable.
18. It is further submitted that the issue regarding the coverage of trainees under the EPF Act is no longer res integra WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 16 2024:KER:76265 in view of the several judgments of this Court and the Supreme Court, particularly, the judgment dated 28.02.2019 passed by the Division Bench in EPF organization v. Malabar Business Centre (P) Ltd.,[ W.A No. 746/2014], Gehna Gold Palace (P) Ltd v. Employees Provident Fund Appellate Tribunal, [W.P (C) No. 16126 /2014], and the Supreme Court judgments in Regional Provident Fund Commissioner, Mangalore v. Central Arecanut and Cocoa Marketing and Processing Co.Ltd., Mangalore [(2006) 2 SCC 381].
19. The next submission advanced by the learned Senior counsel for the petitioner is that the nature of the work undertaken by the petitioner necessitates the employment of a higher number of trainees than the regular employees. The view taken by the EPF authorities that since the petitioners have set up a training institute called 'Malabar Institute of Management' for imparting preliminary training, and therefore, there was no need to give training at the WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 17 2024:KER:76265 establishment without an understanding of the nature of the work and business of the petitioner. It is submitted that the petitioners are engaged in the business of the sale of jewellery and allied products. Some degree of training is required for a person to be taken on the rolls of the establishment. Unlike other products, jewellery cannot be dealt with or sold by laymen or persons who have no knowledge of the product. Training is, therefore, imparted in making, handling, purchasing, billing, cash handling, product knowledge and dealing with customers. Persons/Trainees are trained in appraising the product, assessing its value, making charges and also its repair and maintenance. Therefore, it is submitted that before a person is taken on the rolls of the petitioner, it is essential that the management has trust and confidence in the employee, who is dealing with expensive and delicate products like gold jewellery.
20. At the initial stage of establishment, it was WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 18 2024:KER:76265 imperative that the people engaged were adequately trained in various facets of the business. In view of this, only a few regular employees and trainees/professionals were hired in the units.
21. The learned Senior counsel has further submitted that, once the standing order is certified, neither EPF authorities nor the EPF Appellate Tribunal had jurisdiction to hold that the IESO Act and the Standing Order certified thereunder would not be applicable to the petitioners' establishment.
22. In view thereof, it is submitted that the view taken by the authorities in passing the impugned orders is unsustainable and therefore consequently, the impugned orders are liable to be set aside.
23. On the other hand, the learned counsel for the EPF organization has submitted that the petitioners/employers had failed to enroll employees with the EPF Scheme under the provisions of the EPF Act 1952. As the employers/petitioners WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 19 2024:KER:76265 did not comply with the direction to enroll 211 employees to the fund, an enquiry under Section 7A was conducted to determine the dues payable by the establishment for the said 211 employees. An enquiry under Section 7A has been conducted as per provisions of the EPF Act 1952 and the Schemes framed thereunder.
24. The learned counsel for the respondent organization has submitted in the assessment order, there is a clear finding that the establishment is providing training for engaging the employees. It is submitted on the facts of the W.P (C) No. 30357 of 2021 that the petitioner's establishment had engaged 267 employees as regular employees and 211 employees as trainees as on 03/2015. It is well settled that an establishment cannot put any number of persons under the category of trainees merely on the strength of the Standing Orders, especially, when the employees are engaged in the production line and given the same kind of work that has been given to the regular WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 20 2024:KER:76265 employees. All the 211 trainees were contributing towards ESI from their remuneration from their date of appointment. Stipend/remuneration of trainees having equal designation was found not to have uniformity though they were working equal days in a month. More or less, same kind of work has been given to the so-called trainees as well as the employees designated as regular employees. From the month of 09/2014 onwards, the number of employees engaged as regular trainees does not show much variation.
25. It is further submitted that on the facts on record, it would disclose that as far as the work is concerned, there was no difference between the employees labelled as trainees and regular employees, except for the remuneration of the former was in nomenclature as stipend.
26. The learned counsel, therefore, submitted that the aforesaid aspect would give strong credence to the case that the so-called trainees are regular employees as per the WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 21 2024:KER:76265 definition under Section 2(f) of the EPF Act, 1952 and therefore, an order under Section 7A dated 01.10.2015 was issued for assessing the liability of Rs.23,62,920/-.
27. The learned counsel has relied on the following judgments in support of his contention that the EPF authorities are empowered to pierce the veil and read between the lines whether an employee is a trainee or a regular employee, and whether he has been designated as a trainee only to avoid the contribution to the EPF Scheme. He has placed reliance on the following judgments:-
1) Rajasthan Prem Krishan Goods Transport Co.
Ltd v. Regional Provident Fund Commissioner, New Delhi [(1996) 9 SCC 454]
2)Sivagiri Sree Narayana Medical Mission Hospital v. RPFC [2018 (4) KLT 352]
3)Mcleod Russel India Limited v. Regional Provident Fund Commissioner, Jalpaiguri [(2014) 15 SCC 263]
28. The questions which fall for consideration in these writ WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 22 2024:KER:76265 petitions are: -
1) Whether the IESO Act, 1946, would be applicable in respect of the petitioners in W. P (C) Nos. 29166 of 2014, 30357 of 2021 and respondent in Writ Petition (C) No. 7245 of 2014 (Malabar Dazzle India Pvt Ltd and Malabar Gold Pvt Ltd)?
2) Would the trainees be covered under the provisions of the Employment Provident Fund Act?
29. Section 2(e) of the Industrial Employment Standing Order Act, 1946, defines "Industrial Establishment" as follows:
"Section 2(e) "industrial establishment" means--
(i) an industrial establishment as defined in clause (ii) of section 2 of the Payment of Wages Act, 1936 (4 of 1936), or
(ii) a factory as defined in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948), or
(iii) a railway as defined in clause (4) of section 2 of the Indian Railways Act, 1890 (9 of 1890), or (iv ) the establishment of a person who, for the purpose of fulfilling a contract with the owner of any industrial establishment, employs workmen;"
30. The petitioner's activity would include dealing in gold WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 23 2024:KER:76265 Jewellery, manufacturing, repairing, adapting, and selling it to its customers in the market. Such activities would fall within the definition of an Industrial Establishment as defined under Section 2(ii)(f) of the Payment of Wages Act, 1936.
31. The identical issue was considered by this court in its judgment dated 10.03.2014 in Malabar Business Centre (P) Ltd v. Employees Provident Fund Appellate Tribunal & Ors (Writ Petition (Civil) No. 9419 of 2011), and this Court held as under: -
" 4. A contention is raised by the Provident Fund Organization with respect to the employers/assessee herein being termed "Industrial Establishment" as per the Standing Orders Act or Payment of Wages Act. Section 2(e) of the Standing Orders Act defines "Industrial Establishment" inter alia as an Industrial Establishment as defined in clause (ii) of Section 2 of the Payment of Wages Act. Sub clause (f) of clause (ii) of Section 2 of the Payment of Wages Act, includes "workshop or other Establishment in which articles are produced, adapted or manufactured, with a view to their use, transport or sale". Hence the Private Limited Companies herein, who manufacture jewellery and have a workshop for such manufacture wherein ornaments are manufactured for the purpose of sale, definitely would be an Industrial or other Establishments as defined under the Payment of Wages Act and hence, would fall within the ambit of the Standing Orders Act."
WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 24 2024:KER:76265
32. Thus, from the definition of Industrial Establishment as defined under Section 2(e) of the IESO Act and 2(ii)(f) of the Payment of Wages Act, the petitioner manufactures jewellery and has a workshop for such manufacture for the purpose of sale would be an Industrial or other establishment and would be covered within the purview of Payment of Wages Act, and therefore, would fall within the ambit of the Standing Orders.
33. Once the Industrial Standing Orders have been certified by the competent Officer under the provisions of the IESO Act, the EPF authority would not have the jurisdiction to hold that the IESO Act would not be applicable to the petitioner's establishment.
34. This Court in Muthoot Pappachan Consultancy & Management Services v. Labour Commissioner, 2007 SCC OnLine Ker 576: (2008) 1 KLT 388, dealt with the power of the Labour Commissioner to cancel the certified Standing Order issued under the IESO Act, 1946, holding that the Act does not WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 25 2024:KER:76265 contemplate any powers on the Labour Commissioner to suo motu review or cancel the certification made by the jurisdictional certifying officer.
35. The IESO Act is compulsory and applicable with respect to establishments employing 50 or more workmen. However, the Act does not prohibit an establishment from getting its Standing Orders certified under the Act, if both the employer and the workmen desire so. There is nothing in the provisions of the IESO Act prohibiting an establishment from getting its standing orders certified and once the standing order is certified, there is no power vested in the jurisdictional certifying officer or any other authority to cancel the certification already made.
36. Thus, the EPF authority's view that the provisions of the IESO Act would not be applicable to the petitioner does not appear to be correct.
37. The next question is regarding the applicability of EPF WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 26 2024:KER:76265 Act to the trainees/apprentices. The Supreme Court in Regional Provident Fund Commissioner (supra) dealt with the question of the applicability of the provisions of the EPF Act in respect of the apprentices.
38. In the aforesaid case, the Supreme Court, after considering the definition of employee under the provisions of Section 2(f) of the EPF Act, 1952 and Section 12A of the IESO Act as well as the provisions of the Apprenticeship Act, held that even when the Standing orders were not certified at the relevant time, the standing orders would be deemed to be applicable. Section 2(f) of the EPF Act defines an employee to include an apprentice, but at the same time, makes an exclusion in the case of an apprentice engaged under the Apprenticeship Act or under the Standing Order. Under the model standing orders, an apprentice is described as a learner, who is paid allowances during the period of training. It was, therefore, held that the trainees could not be held to be WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 27 2024:KER:76265 employees in terms of Section 2(f) of the Act, and they were excluded from the definition of an employee as per Section 2(f) of the EPF Act. Paragraphs 9-14 of the said judgment are extracted hereunder:-
"9. From a bare reading of Section 12 A it is manifestly clear that until the Standing Orders are finally certified and come into operation, the prescribed model standing orders shall be deemed to be adopted in the establishment concerned. The model standing orders prescribed under Rule 3(1) of the Industrial Employment (Standing Orders) Central Rules, 1946 (in short "the Central Rules") are contained in Schedule 1 to the said Rules. Standing Order 2 thereof classified workmen as follows:
"2. (a)(1) permanent, (2) probationers, (3) badlis, (4) temporary.
(5) casual, (6) apprentices."
10. "Apprentice" is defined in clause (g) of Standing Order 2 as follows:
"2. (g) an 'apprentice' is a learner who is paid an allowance during the period of his training.'
11. The Apprentices Act defines an "apprentice" as follows:
"2. (aa) 'Apprentice' means a person who is undergoing apprenticeship d training in pursuance of a contract of apprenticeship;"
12. In the present case, admittedly the Standing Orders were not at the relevant point of time certified. Therefore, in terms of Section 12-A of the Standing WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 28 2024:KER:76265 Orders Act, the model standing orders are deemed to be applicable. Section 2(f) of the Act defines an employee to include an apprentice, but at the same time makes an exclusion in the case of an apprentice engaged under e the Apprentices Act or under the Standing Orders. Under the model standing orders an apprentice is described as a learner who is paid allowance during the period of training.
13. In the case at hand, trainees were paid stipend during the period of training. They had no right to employment, nor any obligation to accept any employment, if offered by the employer. Therefore, the trainees were f "apprentices" engaged under the "Standing Orders" of the establishment.
14. Above being the position, it cannot be said that the 45 trainees concerned were employees in terms of Section 2(1) of the Act. In other words, an apprentice engaged under the Apprentices Act or under the Standing Orders is excluded from the definition of an "employee" as per Section 2(f) of the Act."
39. The Division Bench of this court in its judgment dated 28.02.2019 in EPF organization (supra), considering the provisions of Section 2(f) of the EPF Act as well as the provisions of the IESO Act, held that trainees appointed under the certified standing orders would not be covered within the definition of Section 2(f) of the EPF Act. Section 2(f) of the EPF Act shows an exception thereunder from the applicability of WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 29 2024:KER:76265 the provisions of the EPF Act, in respect of the apprentices appointed under the Standing orders of the establishment. Para-8 of the said judgment would read as under:-
"8. ....Be that as it may, the facts remains that there are certified Standing Orders applicable to the establishment, which authorise or permits such trainees to be appointed... A perusal of Section 2(f) of EPF Act shows that an exception is made thereunder in the case of persons who are engaged as apprentices and persons engaged under the Standing Orders of the establishment. In the present case, admittedly the trainees are engaged under the Standing Orders of the establishment. Therefore, they are not persons, who come within the scope of the definition contained in Section 2(f) of the EPF Act."
40. It may not be out of place to mention here that the nature of work undertaken by the petitioners necessitates the employment of a higher number of trainees viz-a viz regular employees. However, upon verification, if it is found that the trainees are performing the same work, function and responsibility as the regular employees, the jurisdictional authority may consider that such trainees should be treated as employees under the definition of Section 2(f) of the EPF WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 30 2024:KER:76265 Act and the provisions of the Act would be applicable. Thus, Writ Petition Nos. 29166 of 2014 and 30357 of 2021 are allowed.
41. However, in respect of Writ Petition (C) No.7245 of 2014, it is held that the drivers, attenders, electricians, receptionists and accountants could not have been put in the categories of trainees and therefore, these persons would be covered by the provisions of EPF Act and the benefits under the Act were required to be extended to these persons as they were not trainees but paid regular wages in the name of stipend. Therefore, the matter is remitted to the files of the Assistant Provident Fund Commissioner, Employees Provident Fund Organization, Sub Regional Officer, Bhavishyanidhi Bhavan, Kaloor Kochi to determine the liability for not making the contribution in respect of the employees including, the drivers, attenders, electricians, receptionist, accountants and make a fresh determination. WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 31 2024:KER:76265 The W.P (C)No. 7245 of 2014 is thus partly allowed, and the impugned order passed by the appellate authority is set aside to that extent. However, in respect of the trainees, the impugned order passed by the appellate authority is upheld.
Sd/- D.K.SINGH Judge css/SJ WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 32 2024:KER:76265 APPENDIX OF WP(C) 30357/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE CERTIFIED STANDING ORDER APPLICABLE TO THE PETITIONER.
Exhibit P2 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 01.10.2015.
Exhibit P3 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER DATED 30.10.2015 BEING APPEAL NO. 210/2019 (WITHOUT ANNEXURES).
Exhibit P4 TRUE COPY OF THE INTERIM ORDER DATED 19.08.2019 OF THE 2ND RESPONDENT IN APPEAL NO. 210/2019 Exhibit P5 TRUE COPY OF THE COVERING LETTER DATED 30.08.2019 TO THE 1ST RESPONDENT FROM THE PETITIONER. Exhibit P5(a) TRUE COPY OF THE DEMAND DRAFT TO THE 1ST RESPONDENT DATED 29.08.2019 Exhibit P6 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT DATED 27.09.2018 BEFORE THE 2ND RESPONDENT IN APPEAL NO. 210/2019 Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 10.03.2014 IN W.P.(C) 9419/2011 OF THE HON'BLE HIGH COURT OF KERALA.
Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 20.09.2019 IN W.P.C NO. 16126/2014 OF THE HON'BLE HIGH COURT OF KERALA.
Exhibit P9 TRUE COPY OF THE ORDER DATED 03.05.2021 IN APPEAL NO. 210/2019 PASSED BY THE 2ND RESPONDENT TRIBUNAL.
WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 33 2024:KER:76265 APPENDIX OF WP(C) 7245/2014 PETITIONER EXHIBITS P1 : COPY OF THE MEMORANDUM OF APPEAL IN ATA 340(7)/2010.
P2 : COPY OF THE COVERAGE NOTICE DTD.7.8.2007 ISSUED TO THE 1ST RESPONDENT.
P3 : COPY OF THE COUNTER AFFIDAVIT FILED IN ATA NO.340(7)/2010.
P4 : COPY OF THE ORDER DTD.2.4.2013 IN ATA NO.340(7)/2010.
P5 : COPY OF THE ORDER DTD.2.4.2013 IN ATA NO.201(7)/2010.
P6 : COPY OF THE ORDER DTD.19.1.2011 IN ATA NO.11(7)/2008.
P7 : COPY OF THE JUDGMENT IN INDRAPRASTHA MEDICAL CORPORATION LTD. VS. NCT OF DELHI.
P8 : COPY OF THE JUDGMENT DTD.8.8.2008 IN WPC NO.5306/2005.
P9 : COPY OF THE JUDGMENT DTD.8.1.09 IN WPC NO.24276/2001.
WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 34 2024:KER:76265 APPENDIX OF WP(C) 29166/2014 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE STANDING ORDER NO SOC NO 3/2008 DATED 01-07-2011 EXHIBIT P2 TRUE COPY OF THE STATEMENT DATED 27- 12-2011 SUBMITTED BY THE PETIITONER BEFORE THE2ND RESPONDENT EXHIBIT P3 TRUE OPY OF THE ORDER DATED 15-06-2012 PASSED BY THE 2ND RESPONDENT EXHIBIT P4 TRUE COPY OF THE APPEAL MEMORANDUM (WITHOUT ANNEXURE) FILED BY THE PETITIONER BEFORE THE IST RESPONDENT DATED 02-07-2012 EXHIBIT P5 TRUE COPY OF THE ORDEER DATED 08-04- 2014 PASSED BY THE IST RESPONDENT IN A.T.A NO 581(7) 2012 EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 29.10.2014 ISSUED BY THE SECOND RESPONDENT. EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN WPC NO 9419 OF 2011 DATED 10-03-2014 EXHIBIT P8 TRUE COPY OF THE ORDER IN WPC NO 16373 OF 2014 DATED 30-06-2014.
WPC Nos.7245 & 29166 of 2014 And 30357 of 2021 35 2024:KER:76265