Allowed

The Regional Provident Fund Commissioner v. M/S Srinivasa Fine Arts(P) Limited

Karnataka HC30 Oct 2023WP/37711/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a Writ Petition filed by the Regional Provident Fund Commissioner. The Court held that worker-apprentices not covered under the Apprentices Act, 1961, fall within the definition of 'employee' under Section 2(f) of the EPF Act. Consequently, it quashed an Appellate Tribunal order that had incorrectly exempted them from PF enrollment, emphasizing the lack of a Cer

What did the court decide?

Writ of Certiorari is ordered; the Appellate Tribunal order dated 08.04.2014 is quashed; Writ Petition allowed.

The Regional Provident Fund Commissioner… — Pension and Retirement Benefits | Karnataka HC (2023)

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NC: 2023:KHC:38287 WP No. 37711 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI WRIT PETITION NO.37711 OF 2017 (L-PF)

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BETWEEN:

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THE REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND COMMISSIONERS, IIND FLOOR, CMC BUILDING, BEGUR ROAD, BANGALORE - 560 068.

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…PETITIONER

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(BY SMT. B.V.VIDYULATHA., ADVOCATE)

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AND:

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M/S.SRINIVASA FINE ARTS (P) LIMITED, NO.2 A & 3 ATTIBELE INDUSTRIAL AREA, ATTIBELE, BANGALORE - 562 107. REPRESENTED BY ITS MANAGING DIRECTOR.

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…RESPONDENT

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(BY SRI.HEMANTH RAO.H.S.., ADVOCATE FOR SRI.H.S.RUKKOJI RAO., ADVOCATE)

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN RELIEFS.

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THIS WRIT PETITION IS COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Smt.B.V.Vidyulatha., learned counsel for the petitioner and Sri.Hemanth Rao.H.S., learned counsel on behalf of

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NC: 2023:KHC:38287 WP No. 37711 of 2017

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Sri.H.S.Rukkoji Rao., for the respondent have appeared in person.

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2. The brief facts are these:

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The respondent was brought under the purview of the Employees Provident Fund and Miscellaneous Act, 1952 (for short 'the Act') and Code No.KN/19919 was given. The main unit of the respondent is covered under Code No.TN/MD/24526. On 29.10.2007, the Karnataka Trade Union Center complained that certain workers were not enrolled on the Provident Fund from the due date. On 15.11.2007, the Enforcement Officer went to the respondent's Organization for investigation, and it was noticed that under the guise of trainees, some employees were not enrolled as members of the Provident Fund. An inquiry was initiated under Section 7A of the Act. The representative of the respondent contended that the apprentices were not granted PF benefits on the assumption that they were exempted. The Union representative contended that there was no such Standing Order by the Company for the appointment of an apprentice. It is averred that the Standing Order was not produced before the Authority. The due

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NC: 2023:KHC:38287 WP No. 37711 of 2017

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statement furnished by the Enforcement Officer was accepted after verification by the representative of the respondent. Accordingly, on 25.04.2008 an order was passed by the Authority determining the dues to the tune of Rs.2,80,841/(Rupees Two Lakh Eighty Thousand Eight Hundred and FortyOne only). A Review Petition was filed by the respondent and the same was rejected vide order dated 04.08.2008. The respondent challenged the order of the Authority by filing an appeal before the Employees' Provident Fund Appellate Tribunal in No.690(06)2008. The Appellate Tribunal allowed the appeal on 08.04.2014. Hence, the Regional Provident Fund Commissioner has filed the present Writ Petition under Articles 226 and 227 of the Constitution of India on several grounds as set out in the memorandum of writ petition.

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Learned counsel for the petitioner and the

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respondent have urged several contentions.

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Learned counsel for the respondent placed reliance on the following decisions:

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1. THE REGIONAL PROVIDENT FUND COMMISSIONER, MANGALORE VS. CENTRAL AERCANUT AND COCA

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NC: 2023:KHC:38287 WP No. 37711 of 2017

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MARKETING AND PROCESSING CO-OP. LTD., MANGALORE - AIR 2006 SC 971.

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2. SUNDARAM INDUSTRIES LTD., VS. THE REGIONAL PROVIDENT FUND COMMISSIONER, KARNATAKA - MANU/KA/0196/1995.

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3. DIRECTOR OF ELEMENTARY EDUCATION, ODISHA, AND OTHERS VS. PRAMOD KUMAR SAHOO - MANU/SC/1329/2019.

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4. SHIDDANAGOUDA (DEAD) BY LRS., VS. THE SPECIAL TAHSILDAR, LAND REFORMS, RON, AND OTHERS - W.P.NO.105092/2017 DECIDED ON 10.01.2020.

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5. THE STATE OF KARNATAKA AND OTHERS VS. SHAMSHADBEGUM BABUSAB SURKOD AND OTHERS - MANU/KA/3746/2021.

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Heard, the contentions urged on behalf of the respective

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parties and perused the Writ papers with utmost care.

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The point that requires consideration is whether the order of the Tribunal requires interference.

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The facts are sufficiently stated and do not require reiteration.

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Smt.B.V.Vidyulatha., learned counsel appearing on behalf of the petitioner in presenting her arguments

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5 - NC: 2023:KHC:38287 WP No. 37711 of 2017

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strenuously urged that the few workers of the respondent's organization were not enrolled on the PF. She argued by saying that the workers who were employed by the respondent are the employees of M/s Srinivasa Fine Arts Ltd. She drew the attention of the court to the definition of 'employee' as enumerated under Section 2(f) of the Employees Provident Fund and Miscellaneous Act, 1952.

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By way of answer to this contention reply, Sri.Hemanth Rao., vehemently contended that the respondent had appointed few workers as Trainee/ Apprentice. Hence, they were enrolled on the Provident Fund. He argued by saying that in the absence of a Certified Standing Order, the Model Standing Order becomes applicable. It is also contended that there was a delay and laches in filing the writ petition.

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The contention regarding 'employee' and 'apprentice' is noted with care. I find extracting Section 2(f) of the Act is helpful in indicating the right approach.

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2(f) "employee" 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

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6 - NC: 2023:KHC:38287 WP No. 37711 of 2017

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indirectly from the employer, and includes any person, --

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(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, or under the standing orders of the establishment.

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The language employed in the section is plain, simple, and clear. Employee, includes a person who is 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.

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Reverting to the facts of the case, the respondent admits that as of the date of the inquiry, their establishment did not have a Certified Standing Order in respect of their Unit situated at Bangalore. It is not in dispute that despite giving sufficient opportunities, the respondent has failed to produce a Certified Standing Orders. Furthermore, the representative of the respondent Management also admits that workers were not appointed under the Apprentices Act, of 1961. Therefore, in my view, the workers who were engaged as apprentices are the

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NC: 2023:KHC:38287 WP No. 37711 of 2017

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employees as defined under Section 2(f) of the Employees Provident Fund and Miscellaneous Act, 1952 as they were not engaged as apprentices under the provisions of the Apprentices Act, of 1961. Hence, they were liable to be enrolled on the Provident Fund. The Tribunal has overlooked this and erroneously allowed the appeal, which is unsustainable in law. For the reasons stated above, the Writ Petition deserves to be allowed.

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Counsel for the respondent has have cited several cases, but I do not think that the law is in doubt. Each decision turns on its facts. The present case is also tested in light of the aforesaid decisions.

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The Writ of Certiorari is ordered. The order dated 08.04.2014 passed by the Appellate Tribunal in A.T.A No.690(06)2008 vide Annexure-E is quashed.

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6. Resultantly, the Writ Petition is allowed .

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Sd/JUDGE

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TKN List No.: 1 Sl No.: 13

The Regional Provident Fund Commissioner v. M/S Srinivasa Fine Arts(P) Limited

Case brief

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The Regional Provident Fund Commissioner v. M/S Srinivasa Fine Arts(P) Limited

Case brief

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