M/s. Subros Ltd. vs Regional Provident Fund Commissioner and Others

Prakash Krishna, J.—Heard Shri Vivek Agrawal, learned Counsel for the petitioner. None is present on behalf of the respondent, although the list has been revised. Raising a short controversy, the present writ petition has been filed against the order dated 20.12.1996 passed by the Regional Provident Fund Commissioner holding that the provisions of Employees Provident Funds and Misc. Provisions Act would also apply to the petitioner''s unit as the petitioner has engaged "Trainees" who would also be included within the definition of ''employee'' under the aforesaid Act.

The learned Counsel for the petitioner submits that the said controversy stands set at rest by a decision of the Apex Court in the case of The Regional Provident Fund Commissioner, Mangalore Vs. Central Aercanut and Coca Marketing and Processing Co-op. Ltd., Mangalore, . He further submits that the aforesaid decision has been followed by a learned Single judge of this Court in the case of Gorware Electronics Ltd. Vs. Regional Provident Fund Commissioner and Another, .

The Regional Provident Fund Commissioner has passed the impugned order on the basis that the definition of ''employee'' under the Act which was amended with effect from 1.8.1988 includes in its ambit the word ''apprentice'' other than those apprentices which have been appointed under the Apprenticeship Act 1961.

For the sake of convenience, the relevant paragraph from the impugned order is reproduced below:

Accordingly the definition of ''employee'' under the E.P.F & Misc. Provisions Act, 1952 was also amended with effect from 1.8.1988 to include in its ambit the word ''apprentice'' other than those apprentices which have been appointed under the Apprenticeship Act 1961) to arrest the trend to subterfuge the law. Employees Provident Fund and Insurance Fund are the two sister Deptt. of the Govt. of India, Ministry of Labour. It is surprising that the company is paying E.S.I. Contributions but not the Provident Fund. I am satisfied that all this has been designed by the company to make mockery of the rules and to deny the Provident Fund benefits to the so-called apprentice/trainees. I, therefore, hold them (155 so-called trainees) employees (other than those appointed under the Apprenticeship Act, 1961 whose number is 16) as per list supplied and direct the company to pay their Provident Fund contributions from due date. The case to come up again for hearing on 22.11.1996 to assess the actual dues.

The learned Counsel for the petitioner submits that the approach of the authority concerned is faulty. He submits that the petitioner''s unit engaged trainees with the clear stipulation that such person is a learner and is not an employee. Reliance was placed in this regard on Standing Orders No. 3(f). The said Standing Order is reproduced below:

3(f). An ''apprentice'' or ''trainee'' is a learner whether paid or unpaid during the period of his training according to his individual contract.

He further invited attention of the Court towards the Training Scheme which is part of the impugned order. The following clauses from the scheme are reproduced below:

The trainees will not be treated employees/workmen of the company since the purpose of engagement of training is merely to impart them training in their particular trade and not to take any work from them. Merely because the trainees may have to do some work relating to the work of the factory will not make them employees/workmen of the factory.

That the Company will be under no legal or contractual obligation to employ the trainees in the employment after the completion of training period even if the trainee complete the training period successfully and satisfactorily and even if there are vacancies in the organization in the particular trade in which the trainee has received his training.

Such trainees will not be considered as "Apprentices" under the Apprenticeship Act, 1961. Hence the company will be under no legal obligation to send any intimation of the engagement of such trainees to the State Apprenticeship Advisor, U.P.

I find that the controversy involved in the present case is squarely covered by the aforesaid decisions of the Apex Court as well as of this Court. It has been held that trainees are not included within the definition of "Employee" as contained in the Act. In view of above, the impugned order cannot be allowed to stand. The same is hereby quashed. In the result, the writ petition succeeds and is allowed. No order as to costs.