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2011 Supreme(Cal) 163
HIGH COURT OF CALCUTTA
TAPEN SEN, J.
Tirupati Jute Industries Limited - Appellants
Vs
Employees Provident Fund Organisation - Respondents
W.P. No. 16954 (W)/2010
Decided on: Feb 04, 2011
Partha Bhanja Chowdhury, S.K. Singh, Sujit Sharma, P.K. Mallick, Anil Kumar Gupta
APPRENTICES/TRAINEES ENGAGED UNDER THE APPRENTICES ACT OR UNDER THE STANDING ORDERS ACT ARE EXCLUDED FROM THE DEFINITION OF THE WORD "EMPLOYEE" UNDER SECTION 2(F) OF THE EMPLOYEES' PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952.
Headnote:
EMPLOYEE DEFINITION - EMPLOYEES' PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952 - SECTION 2(F) - WHETHER APPRENTICES/TRAINEES ARE COVERED UNDER THE ACT - COURT HELD THAT APPRENTICES/TRAINEES ENGAGED UNDER THE APPRENTICES ACT OR UNDER THE STANDING ORDERS ACT ARE EXCLUDED FROM THE DEFINITION OF THE WORD "EMPLOYEE" AND THEREFORE THEY COULD NOT BE BROUGHT WITHIN THE PURVIEW OF SECTION 2(F).
Fact of the Case:
THE PETITIONERS, TIRUPATI JUTE INDUSTRIES LTD. AND ITS DIRECTOR, FILED A WRIT PETITION CHALLENGING THE ORDERS PASSED UNDER SECTION 7-A AND SECTION 7-B OF THE EMPLOYEES' PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952, ON THE GROUND THAT THE SAID ACT COULD NOT BE MADE APPLICABLE AGAINST THEM QUA TRAINEES/APPRENTICES SINCE SUCH PERSONS ARE EXCLUDED FROM THE DEFINITION OF THE WORD "EMPLOYEE" UNDER SECTION 2(F).
Finding of the Court:
THE COURT HELD THAT THE PETITIONERS HAD RAISED THE POINT THAT "INCENTIVES" PAID TO AN EMPLOYEE DID NOT ATTRACT THE PROVISIONS OF THE ACT AND THAT THE PETITIONERS WERE NOT LIABLE FOR PAYMENT OF PROVIDENT FUND CONTRIBUTION ON INCENTIVE ALLOWANCES, TRAINEE ALLOWANCES, AND STIPEND AS TRAINEES DID NOT HAVE ANY RIGHT OF EMPLOYMENT NOR WERE THEY OBLIGED TO EXPECT ANY EMPLOYMENT EVEN IF OFFERED BY THE EMPLOYERS.
Issues: 1. WHETHER APPRENTICES/TRAINEES ARE COVERED UNDER THE EMPLOYEES' PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952? 2. WHETHER THE ORDERS PASSED UNDER SECTION 7-A AND SECTION 7-B OF THE ACT WERE VALID AND JUSTIFIED?
Ratio Decidendi: THE COURT RELIED ON THE DEFINITION OF THE WORD "EMPLOYEE" UNDER SECTION 2(F) OF THE ACT, WHICH EXCLUDES APPRENTICES/TRAINEES ENGAGED UNDER THE APPRENTICES ACT OR UNDER THE STANDING ORDERS ACT FROM THE DEFINITION OF THE WORD "EMPLOYEE". THE COURT ALSO REFERRED TO THE CASE OF REGIONAL PROVIDENT FUND COMMISSIONER, BANGALORE V. CENTRAL ARECANUT AND COCA MARKETING AND PROCESSING CO-OPERATIVE LTD., BANGALORE (AIR 2006 SC 971) TO SUPPORT ITS FINDING.
Final Decision: THE COURT DISMISSED THE WRIT PETITION, HOLDING THAT THE ORDERS PASSED UNDER SECTION 7-A AND SECTION 7-B OF THE ACT WERE VALID AND JUSTIFIED. HOWEVER, THE COURT CLARIFIED THAT THE DISMISSAL OF THE WRIT PETITION WOULD NOT PREJUDICE THE PETITIONERS IN THE EVENT THEY CHOOSE TO FILE AN APPEAL BEFORE THE TRIBUNAL.
TAPEN SEN, J.
1. In this writ petition, the petitioners, Tirupati Jute Industries Ltd. and its Director, have prayed for an Order commanding upon the respondents to withdraw and/or cancel and quash the Order dated February 16, 2009 as contained in Annexure-P/8 to the writ petition purporting to be an Order passed under Section 7-A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the said Act). The petitioners have also prayed for quashing the Order dated February 26, 2010 as contained in Annexure- P/10 passed under the provisions of Section 7-B of the said Act refusing to review the Order dated February 16, 2009. The petitioners have also prayed for setting aside the Order/Communication dated July 23, 2010 as contained in Annexure- P/11 whereby and whereunder the Senior Manager (Operations) of United Bank of India informed the Petitioners that their account has been attached y the Employees' Provident Fund Organisation and that they have been Ordered by the Employees' Provident Fund authorities to pay the available balance which was lying in their account and for which the amount of Rs. 1,81,128.18 paise had already been debited on July 15, 2010. Other consequential prayers have been made including a prayer that the Respondents be injuncted from giving effect to the impugned Orders.
2. During the course of submissions, Mr. Partha Bhanjan Chowdhury, learned counsel appearing for the petitioners, submitted that the very initiation of the Proceedings under Section 7-A of the said Act was totally without jurisdiction inasmuch the said Act could not at all have been made applicable against the petitioners qua Trainees/Apprentices in view of the fact that such persons are ousted from the definition of the word "Employee" as defined under Section 2(f) thereof. In support of such a contention, Mr. Chowdhury relied upon the case of Regional Provident Fund Commissioner, Bangalore v. Central Arecanut and Coca Marketing and Processing Co-operative Ltd., Bangalore AIR 2006 SC 971 : (2006) 2 SCC 381 : 2006-I-LLJ-995. Considering the aforementioned point argued, the Writ Petition was admitted for final hearing on September 2, 2010 whereafter it was heard on various dates and on January 14, 2011 the following Order was passed:
"January 14, 2011 W.P. 16954(W)/2010 Mr. Partha Bhanja Chowdhury Mr. S.K. Singh, Mr. Sujit Sharma.... for the Petitioner Mr. P.K. Mallick, Mr. Amit Kumar Gupta....for the Respondents Although this writ petition was admitted for final hearing on September 2, 2010 and matter was directed to be listed on December 8, 2010 with an interim order, this Court could not take up the matter as it was holding Court in circuit bench at Port Blair from December 6, 2010 to December 20, 2010. In the meantime another Hon'ble single Judge directed the matter to be listed after the Christmas holidays and the interim order passed earlier was extended by one week after reopening of the Court. Thereafter on January 10, 2011 the matter was argued both by Mr. Partha Bhanjan Chowdhury as well as by Mr. P.K. Mallick at great length and Mr. Mallick stated that he was fully ready with all points and since the case involved points of law, there was no necessity to file any counter-affidavit and therefore he proceeded to argue the case. The matter was therefore heard in extenso on that day and again, was ordered to be listed on January 13, 2011 as a part-heard matter. On January 13, 2011 the matter was given (sic again) heard for the whole of the second half. Today again the case has been heard for the whole of the second half. Hearing is now complete and order is reserved. In view of the fact that affidavits have not been filed, allegations made, if any, would not be deemed to have been accepted by any of the respondents. (Tapen Sen, J.)"
(Quoted)
It is on the basis of the aforementioned facts and points of law argued, that the writ petition was taken up for hearing and judgment was reserved
