Madras High Court
Petitioner vs The Presiding Officer on 22 September, 2022
Author: S.Srimathy
Bench: S.Srimathy
W.P(MD)No.1384 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.09.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P(MD).No.1384 of 2013
and
M.P(MD).No.1 of 2013
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.Sri Saravana Spinning Mills (P) Ltd.,
Unit-II,
Renganathapuram,
Dindigul,
Dindigul District
: Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorari to call for the records relating
1/9
https://www.mhc.tn.gov.in/judis
W.P(MD)No.1384 of 2013
to the order in ATA.No.554 (13) 2011 dated 03.02.2012 passed by the first
respondent tribunal and quash the same.
For Petitioner : Mr.A.John Xavier
For R1 : Tribunal
For R2 : Mrs. K.Hema Karthikeyan
ORDER
This Writ petition has been filed for the issuance of writ of Certiorari to quash the order passed in ATA. No. 554 (13) 2011 dated 03.02.2012 passed by the first respondent Tribunal.
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. A surprise inspection was conducted by a squad and the said squad in its report noticed that the establishment was "under reporting" the number of its employees. Even regular workmen were falsely shown as apprentice. Therefore, summons was issued to the establishment and proper enquiry was held. After giving opportunity to the second 2/9 https://www.mhc.tn.gov.in/judis W.P(MD)No.1384 of 2013 respondent, the order dated 10.06.2011 was passed, determining the contribution to the tune of Rs.15,07,050/- payable for the un-enrolled employees, who were shown as apprentices. Aggrieved over the same, the establishment preferred an appeal in ATA No.554 (13) 2011 before the first respondent Tribunal. The Tribunal, after considering the claim of the establishment has passed the impugned order, whereby the claim of the Provident Fund Organization was dismissed vide impugned order dated 03.02.2012. Aggrieved over the same, the Employees Provident Fund Organization has preferred this petition.
3. The contention of the petitioner is that there are materials on record to demonstrate the "Modus Operandi" of the employer to under report the number of employees by showing them as apprentices in terms of the standing orders. Further the contention of the petitioner is that an apprentice is engaged for a given period so as to gain skills from training. The so called apprentice do not seem to have undergone any regular and fixed period of training, so as to enable them to get the course completion certificate. This would clearly show that the so called apprentices are actually daily rated or casual employees. The second respondent has shown more number of employees 3/9 https://www.mhc.tn.gov.in/judis W.P(MD)No.1384 of 2013 engaged in the said Mill, but in the EPF contribution statements, the number of employees were shown is less. The Tribunal has mechanically accepted the defence of the employer and allowed the appeal. Hence the Provident Fund Organization prayed to dismiss the claim of the second respondent and allow this petition.
4. The Learned Counsel appearing for the second respondent submitted that the appeal grounds raised before the Tribunal shall be treated as counter filed before the Tribunal. The second respondent submitted that neither the apprentices are employees under Section 2 (f) EPF Act nor stipend paid to them is wage as per the provisions of the said Act. As such the establishment is not liable to remit any contribution as claimed by the PF organisation in respect of stipendiary apprentices. Further, the second respondent submitted the copies of the apprenticeship applications, apprenticeship scheme, syllabus and evaluation report for increasing the stipend to the apprentices, photos of training hall and class conducting session for the apprentices both theoretical and practical, Names of the training officers, supervisors, list of apprentices and stipend paid to them etc. are furnished before the authority. In spite of these, the Provident Fund Organization passed the order dated 09.06.2011 4/9 https://www.mhc.tn.gov.in/judis W.P(MD)No.1384 of 2013 against the second respondent and the second respondent preferred an appeal before the Tribunal and the Tribunal has accepted the plea of the second respondent and allowed the appeal. Aggrieved over the same, the present writ petition has been filed by the PF organisation. The Learned Counsel appearing for the respondents submitted that the plea of the Provident Fund is mere apprehension. Hence, he prayed to dismiss this petition by confirming the order passed by the Tribunal.
5. Heard Mr.A.John Xavier, the Learned Counsel appearing for the petitioner and Mr. K.Hema Karthikeyan, the Learned Counsel appearing for the 2nd respondent and perused the records.
6. The learned Counsel appearing for the second respondent submitted that the same issue was considered by this Court in W.P.(MD)Nos.828 of 2013, 15255 and 15313 of 2012. The Division Bench of this Court in W.A.No.904/2012 has also considered the same issue. The relevant portion is extracted as under:
“2.The Department took the matter further by preferring a writ petition, which has been dismissed by the impugned order, dated 23.08.2012, by the learned Single Judge. The findings of the 5/9 https://www.mhc.tn.gov.in/judis W.P(MD)No.1384 of 2013 learned Single Judge are hereunder:
“4.The learned counsel appearing for the petitioner contends, that the numbers of apprentices were more than the regular employees and therefore the impugned order cannot be sustained. This contention cannot be accepted, because the mode of appointment of apprentices is different from the regular appointment and on the basis of documents placed on record by the department and the employer, the Appellate Authority has recorded a finding of fact that the workers said to be regular were only apprentices and not regular employees and thus not covered under the Employees Provident Fund Act. This Court in exercise of Writ Jurisdiction does not sit in appeal to reappraise the evidence unless the findings are perverse or are not capable of being arrived at, merely because other view is also possible cannot be a ground to interfere. The only ground of challenge is that apprentices were more than regular employee which cannot be accepted, as a positive finding of fact cannot be interfered with on presumption.”
3.On hearing the learned counsel for the parties, we find no fault with the findings recorded by the learned Single Judge in paragraph 4, aforesaid. It is trite to say that the process of appointment of regular employees and apprentices are different and, it is on appreciation of documents, the appellate authority came to the conclusion that certain persons, who were sought to be treated as employees of the 2nd respondent establishment, were only apprentices. We thus find no reason to interfere with the impugned order”.
7. The contention of the petitioner PF Organization is that the second respondent Mill has engaged apprentices who are more than 100 in numbers. 6/9 https://www.mhc.tn.gov.in/judis W.P(MD)No.1384 of 2013 They are not regularly paid in each and every month. Moreover, the apprentices were carried on the regular work of the employees. All these factors had created a doubt in the minds of the petitioner PF Organization.
8. These grounds are not sufficient to come to the conclusion that the apprentices are regular employee. The second respondent Mill had produced the records which is stated supra would clearly indicate that training session is carried out and the mill has engaged some trainees, both practical and theory classes are being conducted. The petitioner PF Organization has misconstrued the practical classes as if the apprentices are being engaged as workers. The petitioner organization has misconstrued the entire concept of the apprenticeship. The Tribunal has rightly come to the conclusion that the petitioner organization has misconstrued the concept and without perusal of materials the petitioner PF Organization had passed the order dated 09.06.2011.
9. In view of the above discussions and reasons, this Court confirms the order passed by the Tribunal in A.T.A.No.478 (13) 2011, dated 03.02.2012. 7/9 https://www.mhc.tn.gov.in/judis W.P(MD)No.1384 of 2013 Accordingly, this writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.
22.09.2022
Index : Yes / No
Internet : Yes/ No
lr
To
The Presiding Officer,
The Employee's Provident Appellate Tribunal, New Delhi.
8/9 https://www.mhc.tn.gov.in/judis W.P(MD)No.1384 of 2013 S.SRIMATHY, J.
lr W.P(MD).No.1384 of 2013 22.09.2022 9/9 https://www.mhc.tn.gov.in/judis