SEVAYAN MEDICAL Vs. ASSISTANT PROVIDENT FUND COMMISSIONER

JUDGEMENT

(1.) By way of this petition under Article 226/227 of the Constitution of India, petitioner is seeking quashing of the order dated 4 th August, 2008 passed by the Employees Provident Fund Appellate Tribunal, New Delhi in Appeal No. A.T.A.No.562(3)/2005 and pursuant thereto show cause notice dated 23 rd December, 2008 issued by the Recovery Officer and summons dated 29 th December, 2008 issued by the Assistant Commissioner, Employees Provident Fund Organisation, Bhagalpur (Bihar).

(2.) The case of the petitioner is that petitioner establishment is a small medical care and research centre situated in Munger, Bihar catering to the basic medical needs pertaining to ladies and children's health. In all there are 11 employees and the number of employees has never crossed the figure of 20 in its entire period of existence. In the month of June-July, 2004, the petitioner establishment was approached by the Interactor of Town High School, Munger and Deputy Director, Board of Practical Training Kolkata requesting the petitioner establishment to engage few Degree/Diploma/Technician (Vocational) students as apprentices and impart practical training to them as envisaged in the scheme of the Board. Petitioner agreed to their request and agreed to take a group of 12 students as apprentices under the Apprentices Act, 1961 selected by the Interactor and sponsored by the Board of Practical Training Eastern Region, Calcutta. Those 12 students were to be paid stipend as fixed under the scheme by the Board. The duration of the training was one year. They were also informed that they would be paid stipend as mandatory under the Apprentices Act, 1961 and no P.F./deductions were to be made for them. On 18 th January, 2005, the Enforcement Officers of the Provident Fund Commissioner, Bhagalpur visited the petitioner establishment and conducted inspection of the premises and asked for certain documents which were duly supplied by the petitioner. Thereafter, respondent no.1 issued an order dated 31 st January, 2005 holding that there were 29 employees working in the establishment and demanded that employer's contribution be deposited in the office of respondent by 20 th February, 2005. Petitioner disputed the order by contending that there were only 11 employees and made detailed representation to respondent no.1. On 9 th March, 2005, respondent no.1 issued summons to the petitioner for appearance before it on 23 rd March, 2005. The representative of petitioner establishment appeared before respondent no.1 on 23 rd March, 2005 and contended that it has only 11 employees and 12 apprentices were trainees and not their employees, as such Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act) was not applicable to it. On 18 th April, 2005, respondent no.1 held that the apprentices receiving training are persons and therefore they will be regarded as 'person' to determine the applicability of the Act.

(3.) Petitioner assailed the said order before the Employees Provident Fund Appellate Tribunal, New Delhi i.e. respondent no.2 (hereinafter referred to as 'the Tribunal') in ATA 562(3)/2005. Notice was issued to respondent for 2 nd September, 2005. However, no stay was granted for determination under section 7(1)(b) of the Act. Thereafter, petitioner moved an application for the grant of stay of determination process. The same was also dismissed by the Tribunal vide order dated 26 th October, 2005. The said order was challenged by the petitioner by filing WP(C) 4926/2006 before this court. During the hearing of the said petition, attention of this court was drawn to the decision of the Supreme Court in Regional Provident Fund Commissioner Mangalore Vs. Central Arecanut and Coca Marketing and Processing Coop. Ltd, Mangaltore, 2006 2 SCC 381 wherein it is held that 'Apprentice' engaged under the Apprentices Act or under the Standing Orders would be excluded from the definition of an "employee" under the Act. The said writ petition was disposed of by this court vide order dated 3 rd April, 2006 with the direction that determination proceedings by the Regional Provident Fund Commissioner may go on. However, so far as the recoveries of amount pursuant to the final determination proceedings are concerned, the same shall not be effected without prior permission of the Employees Provident Fund Appellate Tribunal before whom the appeal was pending. It was also directed that judgment of the Supreme Court relied upon by the petitioner shall be considered by the Tribunal at the time of adjudication of the appeal. It is stated that the aforesaid appeal was dismissed vide impugned order dated 4 th August, 2008 without any reference to aforesaid judgment. Thereafter, show cause notice dated 23 rd December, 2008 and summons dated 29 th December, 2008 have been issued. Aggrieved with the same, present petition is filed.