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Judgment
Y. Venkatachalam, J.—Since in all these matters, the issue involved and the parties to the writ are common, all these writ petitions, Writ
Petitions Nos. 14143 to 14148 of 1990, were taken up together and are disposed of by this common order with the consent of the respective
parties.
Invoking Article 226 of the Constitution of India, all these writ petitions have been filed, seeking for a writ of certiorari to call for the order of the
respondent dated July 6, 1990, and to quash the same. In support of the writ petitions, the petitioners herein have filed separate affidavits wherein
they have narrated all the facts, and circumstances that forced them to file the present writ petitions and requested this Court to allow their writ
petitions as prayed for. Per contra, on behalf of the respondent a common counter-affidavit has been filed rebutting all the material allegations
levelled against them one after the other, and ultimately requested this Court to dismiss all these writ petitions for want of merits.
Heard the arguments advanced by learned counsel appearing for the parties. I have perused the contents of the affidavits and the counter
affidavits together with all other relevant material documents available on record in the form of typed set of papers. I have also gone through the
various decisions relied on by the parties. I have also taken into consideration the various points raised by learned counsel appearing for the
respective parties during the course of their arguments.
In the above facts and circumstances of this case, the only point that arises for consideration is, as to whether there are any valid grounds to
allow these writ petitions or not.
The brief facts of the case of the petitioners as seen from their affidavit, are as follows:
These writ petitions have been filed against the order of the respondent dated July 6, 1990, requiring the petitioner to cover certain employees
engaged as trainee-apprentices on the ground that while these employees were engaged long prior to July 29, 1989, cannot be treated as
apprentices, or on the ground that the standing orders of the petitioner herein were certified only on December 21, 1988, and so they cannot be
treated as apprentices and that, therefore, they are to be enrolled under the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952.
All the petitioner establishments are covered under the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952 and have been
paying contributions in respect of all their employees. The petitioner herein periodically engages local youths for training in the trades and after
training, some of them are absorbed if there are vacancies and if they are suitably trained. Otherwise, these persons so trained, are given a
certificate of training, which enables them to secure employment elsewhere. That being so, by letter dated March 29, 1990, the respondent herein
wrote stating that the petitioners herein had omitted to take into account the trainees employed in the establishment and that the petitioners herein
should enrol themselves under the Act and pay contributions in respect of those employees. The petitioners herein in their reply submitted to the
respondent that the persons mentioned by the respondent were engaged in the establishment by specific apprenticeship orders on a monthly
stipend, and are imparted training in skilled and semi-skilled jobs, since a majority of the persons so engaged came from a predominantly
agricultural background and from and around Kumbakonam, which necessitated the apprenticeship scheme for training manpower not only for its
requirements, if any in future, but in any event to improve the skill of manpower in the area. The apprentices who were engaged by the petitioners
herein would not fall within the definition of ""employee"" of the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952, since the
predominant objective of their engagement, is learning a trade to equip themselves to eke out their livelihood and that the persons mentioned by the
respondent in the letter dated March 29, 1990, being apprentices under the certified standing orders of the company, would be outside the
purview of the Act. Therefore, the orders impugned of the respondent are contrary to law and facts of the case and are irregular and vitiated by
errors apparent on the face of the records and deserves to be quashed by this Court.
The impugned orders of the respondent are challenged by the petitioners herein on the ground that the respondent erred in ignoring the accepted
legal position that the apprentices are per se not employees within the meaning of Section 2(f) of the Act, that the respondent erred in law in
holding, based on paragraph 2(f) of the Employees'' Provident Funds Scheme, that only apprentices under the certified standing orders, were
excluded from the provisions of the Act when only even the amendment to Section 2(f) of the Act included ""apprentices other than apprentices
under the Apprentices Act, 1961, or under the standing orders of the establishment"" by the Amendment Act of 1988 which came into force from
August, 1988. It is also contended by the petitioners that the respondent failed to see that the model standing orders provide for engagement of
apprentices with apprenticeship period extending up to three years and that, therefore, the persons engaged by the petitioner herein, were
apprentices who will not fall under the definition of ""employee"" u/s 2(f) of the Act. It is also their case that the respondent has rejected the
petitioners'' contention that the persons in question were in fact only apprentices, only on the ground that the standing orders of the petitioners
herein were certified subsequent to the engagement of the apprentices, and not on the ground that they were not apprentices, learning a trade.
Per contra, inter alia, it is contended by the respondent that the Employees'' Provident Fund Commissioner, Trichy, during one of his visits to the
petitioner group of establishments on March 15, 1990, discovered that some of their employees were not enrolled as provident fund members
from the dates of eligibility. Hence, he sent a communication to the petitioner-establishments on March 29, 1990, calling on the employers to enrol
all the omitted employees for provident fund contributions. They sent a reply on April 21, 1990. After considering the reply, the respondent-
Commissioner sent a communication dated May 15, 1990, that the so-called trainees are not really apprentices coming within the definition of
apprentices, in the Act. Unless the trainees and apprentices are appointed in accordance with the Apprentices Act or as per the companies
certified standing orders, they are not excluded from the definition of employee u/s 2(f) of the Act. It is the specific case of the respondent that the
very fact that the standing orders of the company were certified by the Joint Commissioner of Labour, Madurai, on July 28, 1989, who testified to
the fact that the alleged apprentices who are appointed much earlier to that date are not apprentices coming within the definition of the Act.
According to the respondent, a scrutiny of the wage register and other records showed that they were paid regular wages and as such they came
within the definition of employees as per Section 2(f) of the Act. It is stated by the respondent that, therefore, the respondent-corporation initiated
the proceedings u/s 7(a) of the Act calling upon the petitioners to attend the enquiry with all the relevant particulars and records for determining the
provident fund dues of the omitted employees. Further, it is also the case of the respondent that the standing order of the company was certified
only on July 28, 1989, and admittedly the employees in question were appointed long prior to that date and that they have also not been appointed
under the Apprentices Act. Therefore, as such, they do not come under the definition of apprentice in the Act. It is the categoric case of the
respondent that even though the petitioners state that they were only trainees appointed as apprentices, unless it is proved that they are apprentices
coming within the definition of the Act, they are deemed to be only employees. It is stated by them that the order of the respondent is legal and
valid since it has been passed in due compliance of the provisions of the Act and due exercise of the statutory powers conferred on the
respondent. It is also their case that these petitioners have prematurely rushed to the Court and it is significant to note that the petitioner''s
establishments have challenged the very notice calling on them to attend an enquiry, for even before such an enquiry he has rushed to the Court and
has stalled the proceedings and as such the writ petitions deserve to be dismissed as premature and not maintainable.
Having seen the entire material available on record, it is clear that the dispute or issue involved in these writ petitions is that whether the persons
in question in these writ petitions, are apprentices, as contended by the petitioners herein or employees of the petitioners, as contended by the
respondent. It is contended by the petitioners that they periodically engage local youths for training in the trades and after training, some of them
are absorbed if there are vacancies and if they are suitably trained, otherwise these persons so trained are given a certificate of training which
enables them to secure employment elsewhere and that, therefore, they are apprentices only and not employees, within the meaning of Section 2(f)
of the Act and that, therefore, they are outside the purview of the Act. In support of their contention they relied on several decisions. It is no doubt
true that the: settled legal position is that ""apprentices"" are not employees and they are excluded from the purview of the Act. But the question
arises is that the petitioners must prove that the said persons in question herein are ""apprentices"" only. That being so, it is the case of the
respondent that the persons in question though named as trainees are not apprentices in the real sense of the word, as per the definition in the Act,
that unless the trainees/apprentices are appointed in accordance with the Apprentices Act or as per the companies certified standing orders, they
are not excluded from the definition of employee u/s 2(f) of the Act. Further, it is also their case that admittedly these persons were appointed since
October, 1987, whereas the standing orders of the company came into effect from July 29, 1989, and also that the said alleged apprentices were
not also appointed under the Apprentices Act. Therefore, it is contended by the respondent that they are deemed to be employees eligible for the
employee''s provident fund benefits. It is also their categoric case that on a scrutiny of the wage register and other records it was found that they
were paid regular wages and as such they came within the definition of employees as per Section 2(f) of the Act. To controvert such stand of the
respondent, the petitioners herein have not placed any records before this Court or proved before this Court that the persons in question are only
apprentices and not employees as per the Act. That apart, it is the main contention of the respondent that the respondent initiated the proceedings
u/s 7(a) of the Act calling upon the petitioner-establishments to attend the enquiry with all the relevant particulars and records for determining the
provident fund dues of the omitted employees. But, without attending the enquiry and even before such an enquiry, he has rushed to the Court.
Thus, it is very clear that the petitioner-establishments have challenged the very notice calling them to attend an enquiry for determining the dues.
Therefore under such circumstances, it is vehemently contended by the respondent that the petitioner-establishments herein have prematurely
rushed to the Court and during the enquiry they could have made all their submissions and raised various contentions. In the facts and
circumstances, I see every force in the contentions of the respondent. Because, even at the stage where the respondents have initiated action u/s
7(a) of the Act, the petitioners have rushed to the Court. They ought to have participated in Section 7(a) enquiry and made their submissions
before the respondent authority. That apart, in the enquiry u/s 7(a), the petitioners have ample opportunity to put forth their points and other
material evidence and the relevant records to establish that the employees in question are only apprentices and not full fledged employees.
Therefore, it is rightly contended by the respondent that failure of the petitioners to avail of the opportunity provided under the Act itself is a ground
to dismiss the above writ petitions.
It is also contended by the respondent that it cannot be accepted that the model standing orders under the Industrial Employment (Standing
Orders) Act, 1946, applied to the petitioners'' establishment. It is significant to note that wherein 100 or more workers are employed or were
employed on any of the preceding 12 months, in the absence of the certified standing order, the model standing order shall be deemed to be
applied in the said establishment. It is significant to note that the petitioner-establishments are employing less than 100 employees and as such they
cannot take refuge under the model standing orders. Therefore, it is the categorical contention of the respondent that the workers employed in
October, 1987, are not governed by the model standing orders and, hence, the so-called apprentices neither being appointed after the certification
of the company standing orders nor under the Apprentices Act, do not come within the statutory definition of apprentice and that they are to be
termed as employees eligible for provident fund benefits.
Thus, from the above aspects of this case, I am of the view that the petitioners herein ought to have participated in Section 7(a) enquiry and
made their submissions before the respondent''s authority and in the said enquiry they have ample opportunity to put forth their points and other
material evidence and the relevant records to establish that the employees in question are only apprentices and not full fledged employees. But
without exhausting such remedy they have rushed to this Court. Even, if they are aggrieved in the said enquiry also it is open for them to pursue
other remedies in the appropriate forum. In this view of the matter, the writ petition is liable to be dismissed.
In the result, all the writ petitions are dismissed. No costs. Consequently, W.M.P. Nos. 22033 to 22038 of 1990 are also dismissed.