IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.04.2011 CORAM THE HONOURABLE MR. JUSTICE K.CHANDRU W.P.NO.1280 OF 2011 AND M.P.NO.1 OF 2011 Sri Ramnarayan Mills Ltd., Periyanaickenpalayam, Coimbatore 641 020. Rep. by B.Ravishankar Personnel Officer ... Petitioner VERSUS 1.The Employees Provident Fund Appellate Tribunal Ministry of Labour & Employment Scope Minar, 4th Floor, Core-2, Laxmi Nagar, New Delhi 110 092. 2.The Regional Provident Fund Commissioner II Employees Provident Fund Organisation Regional Office Dr. Balasundaram Road, Coimbatore 641 018. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorari, calling for the records connected with A.T.A.338(13) of 2007 and quash the order dated 29.12.2010 passed by the 1st respondent, the Employees Provident Fund Appellate Tribunal, Ministry of Labour & Employment, Scope Minar, 4th Floor, Core-2, Laxmi Nagar, New Delhi 110 092 confirming the order dated 12.04.2007 passed by the 2nd respondent, the Regional PF Commissioner, Employees Provident Fund Organisation, Regional Office, Dr.Balasundaram Road, Coimbatore 641 018. For Petitioner : Mr.Manohar Gupta For M/s.Gupta & Ravi For Respondent-2 : Mr.K.Gunasekar O R D E R
The petitioner is a Textile Mil and has come forward to challenge the order dated 29.12.2010 passed by the first respondent – Appellate Tribunal in A.T.A.No.338/13/2007.
2.In the writ petition, notice of motion was ordered on 21.01.2011. Pending the notice of motion, an order of interim stay was granted for a limited period. On notice from this Court, the second respondent has filed a counter affidavit dated 19.04.2011.
3.The petitioner preferred an appeal before the first respondent Tribunal under Section 7-I of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (shortly “the Act”) challenging the order passed by the second respondent under Section 7-A of the Act. It is seen from the records that in the petitioner’s mill, 159 persons were employed as apprentices under the Apprentice scheme framed by them. Admittedly, those persons were not apprentices as per the provisions of the Apprentice Act 1961. But the petitioner’s mill relied upon the relevant certified Standing Orders, which enables to keep the apprentices for employment. When the second respondent sought to cover those apprentices under the Act, the petitioner raised a dispute. Therefore, in terms of para 26(B) of the Employees’ Provident Fund Scheme, 1952, a reference was made to the Regional Provident Fund Commissioner. The Regional Provident Fund Commissioner relying upon the reference, by order dated 12.04.2007 found that the apprentices, who were engaged by the petitioner, had actually contributed to the production. It is also found that as a matter of fact, they are getting allowances, bonus and leave facilities etc., on par with other permanent employees.
4.The contention raised by the petitioner before the first respondent Tribunal is that they engaged 108 permanent workers, 7 ITI apprentices, 150 scheme apprentices and 18 staff apprentices and therefore, out of the total employees i.e., 308 employees, the apprentices themselves have constituted more than 50% of the work force. The Tribunal rejected the case of the petitioner by stating that the apprentices engaged by them were not really apprentices excluded by the provisions of the Act, since they are contributing to the production directly and also in respect of payment of bonus, they are bound to be covered by the provisions of the Act. The Tribunal, by its order dated 29.12.2010 rejected the stand taken by the petitioner and held that the apprentices are covered by the provisions of the Act.
5.The contention raised by the petitioner was two-fold. The certified standing orders of the establishment provides for engagement of apprentices and they are excluded from the application of the Act. Secondly, payment of bonus as referred to by the Tribunal, is not a profit sharing bonus and they are only entitled to other bonuses, such as attendance bonus, incentive etc.
6.In the counter affidavit filed by the second respondent, it is pointed out that the Tribunal had appreciated the judgment of the Supreme Court in Regional Provident Fund Commissioner, Mangalore Vs. Central Arecanut & Coca Marketing And Processing Coop. Ltd., reported in 2006 (2) SCC 381 and made a clear distinction between a “trainee” and an “apprentice” who were engaged as apprentices and from whom the work was extracted.
7.In this context, it is necessary to refer to the judgment of this Court in Sree Mangayarkarasi Mills (P) Ltd., Vs. The Assistant Provident Fund Commissioner reported in 2011 (1) CTC 851. But however, Mr.Manohar Gupta, learned counsel appearing for M/s.Gupta and Ravi stated that in the said judgment, this Court considered the application of payment of Bonus Act to the apprentices therein and in the present case, since the petitioner is not paying profit sharing bonus, that judgment will have no relevance.
8.This Court is unable to agree with the submissions made by the learned counsel for the petitioner. The payment of Bonus Act is only enacted for the purpose of paying profit sharing bonus but does not exclude the employer from paying other bonuses. It is suffice to state that when the Tribunal as well as the second respondent recorded a finding of fact that the workers are engaged as apprentices, but the work extracted from them was in the production line, and they were also getting other benefits such as attendance bonus, leave etc., which is similar to the benefits given to other permanent workers, certainly this Court cannot entertain a writ petition under Article 226 of the Constitution of India. Even as per the statistics furnished by the petitioner in the affidavit that 50% of the mill is run by the so called apprentices, it is too late in the date to believe that those workers are engaged only as apprentices and no work of regular worker is extracted from them.
9.In view of the above, there is no case made out to interfere with the order passed by the Tribunal. Hence, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.
26.04.2011
Index : Yes/No
Internet : Yes/No
TK
To
1.The Employees Provident Fund Appellate Tribunal
Ministry of Labour & Employment
Scope Minar, 4th Floor, Core-2,
Laxmi Nagar, New Delhi 110 092.
2.The Regional Provident Fund Commissioner II
Employees Provident Fund Organisation
Regional Office
Dr. Balasundaram Road,
Coimbatore 641 018.
K.CHANDRU, J.
TK
W.P.NO.1280 OF 2011
26.04.2011