Madras High Court
The Regional Provident Fund ... vs The Presiding Officer on 18 October, 2022
Author: S.Srimathy
Bench: S.Srimathy
W.P.(MD)No.15992 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.10.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD)No.15992 of 2012
and
M.P.(MD).No.1 of 2012
The Regional Provident Fund Commissioner,
Employees Provident Fund Organization,
Regional Office,
No.1, Lady Doak College Road,
Chokkikulam,
Madurai – 625 002. ... Petitioner
Vs.
1.The Presiding Officer,
The Employee's Provident Appellate Tribunal,
New Delhi.
2.M/s.Pandyan Hotels Limited,
Race Course,
Madurai – 625 002. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorari, to call for the records relating to the order in
ATA.No.672 (13) 2010 dated 08.02.2012 passed by the first respondent Tribunal
and quash the same.
1/8
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.15992 of 2012
For Petitioner : Mr.K.Murali Shankar
For R-1 : Court
For R-2 : Mr.M.N.Ramkumar,
For Mr.G.Manivannan.
ORDER
This Writ Petition has been filed for Writ of Certiorari to quash the order dated 08.02.2012 passed by the first respondent in ATA.No.672 (13) 2010.
2. The brief facts as stated in the affidavit are that the second respondent is an establishment covered under the provisions of Employees Provident Fund Act, 1952. An inspection was conducted on 12.06.2009 and the inspection report indicates that there was no reporting of number of ex-employees. Even regular workmen were falsely shown as apprentice. Summons were sent to the establishment and proper enquiry was held by granting opportunity to the establishment. Thereafter, the order dated 16.06.2010 was passed for the period of March 2009 and April 2009, determining the contribution to the tune of Rs.36,410/- payable for the un-enrolled employees who were shown as apprentices. Aggrieved over the same, the Establishment preferred an appeal 2/8 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15992 of 2012 before the first respondent, wherein, the order passed by the EPF organization was quashed and the appeal filed by the Establishment was allowed. Aggrieved over the same, the petitioner's organization has preferred this Writ Petition.
3. The contention of the EPF organization is that the modus operandi of the second respondent by showing the employees as apprentices in terms of the standing orders is incorrect. They engaged them for regular employment. The materials on records would shows that the job aspirants who have already completed 3 years or 5 years of relevant course are required to spend another 3 years of apprentice training in the second respondent Establishment without opting for regular employment is a ruse adopted by the employer to deny them any PF benefits by stating them as apprentices. The nature of employment in the establishment is only for getting employment and remuneration. Imparting training is only for improving the work and therefore the so called apprentices are within the relationship of employer and employee. The authority can see through the ruse adopted by the employer and come to an independent conclusion. But the Tribunal has mechanically accepted the defence of the employer and there is no independent and convincing material to support the stand of the Establishment. Therefore, the petitioner's organization submitted that the 3/8 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15992 of 2012 Tribunal ought not to have allowed the appeal filed by the Establishment.
4. On the other hand, the learned counsel appearing for the second respondent submitted that in the enquiry, the respondent Establishment submitted the standing order, the apprenticeship engagement order and also monthly sheets of stipend payment register and monthly sheets of attendance register. There is no material to disbelieve the case of the second respondent Establishment. Therefore, the second respondent prayed to dismiss this Writ Petition.
5. Heard Mr.K.Murali Shankar, the learned counsel for the petitioner and :
Mr.M.N.Ramkumar, learned counsel for Mr.G.Manivannan, learned counsel appearing for the respondents.
6. The learned counsel appearing for the petitioner's organization submitted that if the second respondent engages apprentices, then they ought to have submitted the details of the apprentice in the form that is earmarked for the engagement of apprenticeship. The second respondent cannot claim that apprenticeships were engaged after the inspection and after the 7A proceedings. The said submission cannot be entertained. Since the second respondent has not 4/8 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15992 of 2012 submitted the list of apprentices prior to the initiation of 7A proceedings, therefore, the apprenticeship are entitled to PF amount. This submission will lead to illegal invocation of the Act.
7. The second submission that was submitted by the petitioner's organization is that the modus operandi of the second respondent is to engage regular works under the guise of apprentices. This is the statement without any basis and without any evidence. The petitioner's organization has not putforth any evidence that was deducted during the inspection. On the other hand, the second respondent in the proceedings under 7 A has produced copy of the standing order, copy of the apprenticeship engagement order, attendance register and payment of stipend. The four records would amply prove the engagement of apprenticeship. Especially, in the standing orders under clause 5, the Workmen is classified as Permanent, Probationer, Temporary Workmen, Apprentice, Seasonal and Casual. Simply because the apprentices are categorized under workman, the petitioner's organization cannot term apprentices as workman and collect PF. In the apprenticeship engagement order under clause 9, it has been categorically stated that the apprentices would undergo training in all Sections that is Front Office, F&B Service, F&B Production, House Keeping, Maintenance Stores, 5/8 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15992 of 2012 Accounts, Human Resources and Sales and Marketing. The Tribunal has rightly rejected the contention of the petitioner's organization, wherein, it is held as under:
“In the present case, the enquiry officer in the impugned order concluded that the apprentices, as per the Standing Orders, after completing training were taken into employment with the appellant. It is not disputed under apprentice scheme, such apprentices have no right to retain lien in service or seek employment. But, there is no prohibition under the Standing Orders not to allow the appellant to appoint the trained apprentices into employment. Hence, the apprentices so long as they are in training will not be treated as employees under the Act and the appellant is not bound to pay PF contribution for them. Hence ordered, the impugned order is quashed. The appeal is allowed”.
8. Therefore, this Court is of the considered opinion that the claim of the petitioner's organization is based on absurd theory without any evidence and claim of the petitioner's organization is not sustainable in law. Hence, the Writ Petition is liable to be dismissed.
9. The second respondent submitted that the establishment had deposited the amount before the petitioner's organization. Therefore the EPF organization is directed to refund the amount within a period of four (4) weeks from the date of 6/8 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15992 of 2012 receipt of a copy of this order.
10. Hence, this Writ Petition is dismissed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
18.10.2022 Index : Yes / No Internet : Yes Nsr To
1.The Presiding Officer, The Employee's Provident Appellate Tribunal, New Delhi.
2.M/s.Pandyan Hotels Limited, Race Course, Madurai – 625 002.
7/8 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15992 of 2012 S.SRIMATHY, J Nsr Order made in W.P.(MD)No.15992 of 2012 18.10.2022 8/8 https://www.mhc.tn.gov.in/judis