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(Passed on 28/06/2017) Per : Virender Singh, J. :-

1. The petitioner, who is Assistant Provident Fund Commissioner (for short APFC) on behalf of Central Board of Trustees, Employees Provident Fund Organization has challenged the order dated 26.07.2016 passed by the Employees Provident Fund Appellate Tribunal, New Delhi (for short EPFAT) in ATA No. 1212(8) of 2015, whereby learned EPFAT has allowed the appeal filed by the respondent and set aside the order passed by the Regional Provident Fund Commissioner directing the Respondent to deposit contribution of provident fund of 1223 employees working in the respondent establishment taking them as regular employees of the respondent establishment.
2. Relevant facts giving rise to the present petition; in brief are that to secure compliance of the provisions of the EPF Act, an inspection was carried out in the Respondent establishment on 06.01.2012 and 22.01.2012. It was found that total 2926 employees were working in the Respondent establishment; out of which, as shown by the Respondent, 1753 employees were employed directly, 150 employees were employed through contractor and 1223 were appointed as trainee technicians. It was further found that in fact these 1223 employees were also regular employees of the Respondent establishment but to avoid responsibility towards the contribution of provident fund, these employees were shown as apprentices or trainees. Therefore, RPFC (Regional Provident Fund Commissioner) directed the Respondent to extend PF membership and to deposit contribution of PF of these employees and in fact thereafter recovered it also. The order was challenged by the Respondent before the EPFAT by filing an appeal. The appeal was allowed vide order dated 26.07.2016 on various grounds discussed in para 16 to 25 of the order of the EPFAT, which will be discussed later, and the order of the RPFC was set aside. This order of the EPFAT is under challenge in the present petition.

7. Vide impugned order, the EPFAT held that the persons mentioned by the APFC in its order dated 16/09/2015 (under challenged before EPFAT) are not "employees" of the Respondent establishment on various grounds including that the provisions of the Industrial Employment (Standing Orders) Act, no where prescribes that in case; any attendance bonus given to a person then such person shall be considered as 'employee' of the Respondent establishment or any person who is getting more than Rs.6,500/- per month (stipend Rs.6,000/- + attendance bonus Rs.1,500/-) then at that relevant point of time of employment that person shall be excluded from the provisions of the Act.

12. Learned EPFAT has considered all the grounds raised by the petitioner before this Court and find that they have no substance. The relevant paras of the impugned order reads as under :-

16. "Section 2(f) of the Act clearly enumerates that a person engaged under the standing orders of the establishment does not fall within the definition of employee. Interestingly both parties to the appeal asserting for implication of Standard Standing Orders to the appellant establishment as provided in the Industrial Employment (Standing Orders) Act. Provisions of The Industrial Employment (Standing Orders) Act nowhere prescribed that in case any attendance bonus given to a person than such person shall be considered as employee of the appellant establishment. Further if any person is getting more than Rs.6500/- per month (Stipend of Rs.6000/- + Attendance Bonus of Rs.1500/-) then at that relevant time of employment, that person shall be excluded from the provisions of the Act. The observation of respondent in the impugned order considering trainee technicians as employees of appellant establishment on account of attendance bonus is on the basis of surmises and conjectures, without any provisions of the law. Simply appellant establishment not produced any attendance bonus scheme, does not empowered the respondent to saddle such liability to the appellant establishment.