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qumarsanjeev (n/a)     30 January 2008

PF For Trainees

Dear All.

 

Kindly let me know as to whether PF needs to be deducted for employees who are being taken as trainees with a consolidated stipend.

I heard that there is a recent supreme court judgement stating that PF need not be deducted for trainess and if it true can u please forward me the same.

 

Please help

Regards

Lalith Balasubramaniam


 4 Replies

Shambasiv (n/a)     30 January 2008

Parties : The Regional Provident Fund Commissioner, Mangalore Versus M/s. Central Aercanut & Coca Marketing and Processing Co-op. Ltd.

Date of Decision : 30-01-2006

Judges: THE HONOURABLE MR. JUSTICE ARIJIT PASAYAT & THE HONOURABLE MR. JUSTICE R.V. RAVEENDRAN

Court : Supreme Court of India

Head Note : Employee PROVIDENT FUND and Miscellaneous Provisions Act, 1951 - Sections 2(f) and 7-A - TRAINEES 'Apprentices' engaged under 'Standing Orders' - Excluded from Definition of Employee – Admittedly the Standing Orders were not at the relevant point of time certified. Therefore, in terms of Section 12-A of the Standing Orders Act, the Model Standing Orders are deemed to be applicable. Section 2(f) of the Act defines an employee to include an apprentice, but at the same time makes an exclusion in the case of an apprentice engaged under the Apprentices Act or under the Standing Orders. Under the Model Standing Orders an apprentice is described as a learner who is paid allowance during the period of training - In the case at hand, TRAINEES were paid stipend during the period of training. They had no right to employment, nor any obligation to accept any employment, if offered by the employer. Therefore, the TRAINEES were 'apprentices' engaged under the 'Standing Orders' of the establishment - Above being the position, it cannot be said that the concerned 45 TRAINEES were employee in terms of Section 2(f) of the Act. In other words, an apprentice engaged under the Apprentices Act or under the Standing Orders is excluded from the definition of an 'employee' as per Section 2(f) of the Act - View of the learned Single Judge as affirmed by the Division Bench of the High Court cannot be faulted.

Para 13 to 16

Citations:
2006 (2) SCJ 101;
I.L.R. 2006 (1) Kerala 788

qumarsanjeev (n/a)     30 January 2008

Dear Mr.Raghuvir,

 

Thanks a ton.

Regards

Lalith. B :D

 

hiren chheda (LABOUR LAW ADVISOR)     03 February 2008

[align=center]SUPREME COURT OF INDIA[/align]
[align=center][font=""Times New Roman""]HonΓÇÖble Mr. Justice Arijit Pasayat and HonΓÇÖble Mr. Justice R.V. Raveendran[/font][/align]
[align=center]The Regional Provident Fund Commissioner, Mangalore Appellant[font=""Times New Roman""]  V/S[/font][/align]
M/s. Central Aercanut & Coca Marketing and Processing Co-op. Ltd., Mangalore Respondent

[align=center][font=""Arial Unicode MS""]Civil Appeal No. 978 of 2000[/font][/align]
[align=center][font=""Arial Unicode MS""]30/01/06[/font][/align]
[font=""Arial Unicode MS""]NOTE:[/font]

Employees Provident Fund and Miscellaneous Provisions Act, 1952 ΓÇô Section 2(f) ΓÇôTrainees/Apprentices appointed either under Apprentices Act or under Standing Orders Act ΓÇô Have no right to employment ΓÇô Employer not liable to pay contribution for them. ΓÇô Industrial Employment (Standing Orders) Rules, 1946 ΓÇô S.O. 2, clause (g) ΓÇô The company employed out of 270 applicants, 45 as apprentice and in a combined order by Managing Director, notified 45 persons as being selected as apprentices and were given training in the factory and also indicated clearly that they did not have right of employment after training in the factory.  They were paid stipend during the training period.  The Authority under Section 7-A of the E.P.F. Act determined that the trainees are the employees for the purpose of the Act and the company is liable to pay the quantified amount, which was challenged by the company and Single Judge as well as Division Bench held that the trainees were not covered under the Act and hence the company is not liable to pay as determined by the EPF Authorities.  The Supreme Court has held that by virtue of Section 2(f), trainees are not employees under the Act, hence it affirmed the order of the Single Judge and Division Bench.

[font=""Times New Roman""] JUDGMENT[/font]
[font=""Times New Roman""] [/font]Arijit Pasayat, J.:ΓÇô Challenge in this appeal is to the judgment of a Division  Bench of the Karnataka High Court affirming the judgment of  the learned Single Judge. Both the learned Single Judge and the Division Bench held that 45 persons who were selected as trainees were not covered by Employees Provident Fund & Misc. Provisions Act, 1952 (in short the ΓÇÿActΓÇÖ) as they cannot be called as ΓÇ£employeesΓÇ¥ as defined under Section 2(f) of the Act.

2. Background facts in a nutshell are as follows:

 

 

3. The respondent invited applications from the intending applicants for undergoing training at its Chocolate Factory, Puttur on a stipend of Rs.600/- per month which may be increased to Rs.800/- per month after six months. It was also provided that the successful candidates may be considered for regular posting in the factory. By its resolution dated 21.1.1990 after interviewing 270 applicants, 45 persons were selected. By a combined order dated 3.2.1990, Managing Director notified the 45 persons who were selected. It was clearly indicated therein that the training in the factory does not entitle any trainee to claim right of appointment after completion of training period. It was also stipulated that if any trainee leaves the factory within one year, he was required to refund the amount received by him as stipend. Notice was issued by the appellant purportedly under Section 7-A of the Act in respect of the said 45 trainees. By order dated 15.5.1991 the appellant held that the trainees were employees for the purpose of the Act and the respondent is liable to pay the quantified amount.

4. Writ application was filed by the respondent questioning the determination. A learned Single Judge with reference to various provisions of Industrial Employment (Standing Orders) Act, 1946 (in short ΓÇÿStanding Orders ActΓÇÖ) and The Apprentices Act, 1961 (in short the ΓÇÿApprentices ActΓÇÖ) held that the demand was unsustainable. A writ appeal was filed before the Division Bench which as noticed above dismissed the same.

5. In support of the appeal Mr. Harish Chandra, learned senior counsel submitted that both the learned Single Judge and the Division Bench have failed to notice the true import of Section 2(f) and have erroneously held that the 45 trainees were not covered by the Act. It was also submitted that the Act is a beneficial legislation and a wider meaning has to be given to the expression ΓÇÿemployeeΓÇÖ.

6. In response, learned counsel for the respondent supported the judgments of the learned Single Judge and the Division Bench.

7. Undisputedly, the respondents are trainees. The question as rightly noted by the Division Bench is whether an apprentice can be deemed to be an employee within the meaning of Section 2(f) of the Act in the case at hand.

8. For this purpose it is necessary to take note of the definition of ΓÇÿemployeeΓÇÖ as given in Section 2(f) of the Act. It reads as under: ΓÇ£Section 2 (f) ΓÇÿemployeeΓÇÖ means any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment and who gets his wages directly or indirectly from the employer,

 

and includes any person -(i) employed by or through a contractor in or in connection with the work of the establishment. (ii) Engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961 (52 of 1961) or under the Standing Orders of the establishment.

9. Section 12-A of the Standing Orders Act, inter-alia provides as follows: ΓÇ£12A. Temporary application of model standing orders. - (1) Notwithstanding anything contained in Sections 3 to 12, for the period commencing on the date on which this Act becomes applicable to an industrial establishment and ending with the date on which the standing orders as finally certified under this Act come into operation under Section 7 in that establishment, the prescribed model standing orders shall be deemed to be adopted in that establishment, and the provisions of section 9, sub-section (2) of section 13 and section 13-A shall apply to  such model standing orders as they apply to  the standing orders so certified.(2) Nothing contained in sub-section (1) shall  apply to an industrial establishment in respect of which the appropriate Government is the  Government of the State of Gujarat or the Government of the State of Maharashtra.

10. From a bare reading of Section 12-A it is manifestly clear that until the Standing Orders are finally certified and come into operation, the prescribed model standing orders shall be deemed to be adopted in the concerned establishment. The Model Standing Orders prescribed under Rule 3(1) of the Industrial Employment (Standing Orders) Central Rules, 1946  (in short the ΓÇÿCentral RulesΓÇÖ) are contained in Schedule I to the said Rules. Standing Order No.2 thereof classified workmen as follows: 1) Permanent 2) Probationers 3) badlis 4) temporary 5) casual 6) apprentices.

11. ΓÇÿApprenticeΓÇÖ is defined in clause (g) of Standing Order No.2 as  follows: ΓÇ£An ΓÇÿapprenticeΓÇÖ is a learner who is paid an  allowance during the period of his training.ΓÇ¥

12. The Apprentices Act defines an ΓÇÿapprenticeΓÇÖ as follows: ΓÇ£2(aa): ΓÇÿapprenticeΓÇÖ means a person who is undergoing apprenticeship training in pursuance of a contract of apprenticeship.

13. In the present case, admittedly the Standing Orders were not at the relevant point of time certified. Therefore, in terms of Section 12-A of the Standing Orders Act, the Model Standing Orders are deemed to be applicable. Section 2(f) of the Act defines an employee to include an apprentice, but at the same time makes an exclusion in the case of an apprentice

 

engaged under the Apprentices Act or under the Standing Orders. Under the Model Standing Orders an apprentice is described as a learner who is paid allowance during the period of training.

14. In the case at hand, trainees were paid stipend during the period of training. They had no right to employment, nor any obligation to accept any employment, if offered by the employer. Therefore, the trainees were ΓÇÿapprenticesΓÇÖ engaged under the ΓÇÿStanding OrdersΓÇÖ of the establishment.

15. Above being the position, it cannot be said that the concerned 45 trainees were employee in terms of Section 2(f) of the Act. In other words, an apprentice engaged under the Apprentices Act or under the Standing Orders is excluded from the definition of an ΓÇÿemployeeΓÇÖ as per Section 2(f) of the Act.

16. That being so, the view of the learned Single Judge as affirmed by the Division Bench of the High Court cannot be faulted.

17. The appeal fails and is dismissed. No costs.

 

[font=""Times New Roman""] HIREN CHHEDA[/font]

[font=""Times New Roman""]982178457[/font]

Guest (n/a)     20 February 2008

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