RAJESH KRISHNAN Vs. ASST PROVIDENT FUND COMMISSIONER

JUDGEMENT

(1.) The petitioner is a Co-operative Society engaged in the business of running a hospital. They are aggrieved by Exhibit P-9 order of the respondent - Assistant Provident Fund Commissioner, Kottayam, by which it was held that the petitioner's hospital is liable to be covered under the Employees Provident Funds and Miscellaneous Provisions Act and the Scheme framed thereunder. According to the petitioner, being a Co-operative Society employing less than 50 employees, the petitioner is eligible for exemption from the provisions of the Act, by virtue of Section 16(1)(a) of the Employees Provident Funds and Miscellaneous Provisions Act, by which Co-operative Societies employing less than 50 employees are exempted from the purview of the Act. The petitioner's contention is that. Exhibit P-9 order has been passed considering the trainees engaged by the petitioner in their establishment also as employees, who do not come within the definition of 'employee' under Section 2(f) of the Act, without counting whom, the number of employees employed by the petitioner in their hospital is below 50, consequent to which the exemption provision applies to the petitioner. The petitioner would also contend that for this purpose, Exhibit P-3 scheme framed by the petitioner as per which the trainees are engaged must be construed as a standing order referred to in the definition of 'employee' in Section 2(f) of the Act, in which case, the trainees are liable to be excluded for the purpose of calculating the number of employees employed in the petitioner's establishment, direct result of which is that the petitioner is employing less than 50 employees and therefore is eligible for exemption under Section 16(1)(a) of the Act. The petitioner relies on the judgment of the Madras High Court in Sri. Rama Vilas Service Ltd. v. Regional Provident Fund Commissioner, 2000 1 LLJ 709, wherein, according to the petitioner, an (identical training scheme has been relied upon for the purpose of holding that trainees employed as per that training scheme is excluded from the purview of the definition of 'employee'. The contention of the petitioner is that since the two schemes are in pari materia, the trainees engaged by the petitioner under Exhibit P-3 scheme are also liable to be excluded for the purpose calculating the number of employees of the petitioner's establishment, while considering claim for exemption under Section 16(1)(a) of the Act.

(2.) This is opposed by the learned Counsel for the Provident Fund Organisation. According to them, Exhibit P-3 does not constitute standing orders as referred to in the definition of 'employee' under the Act and without standing orders applicable to the employees of the petitioner's establishment, which permits engagement of apprentices, the trainees also would come within the definition of 'employee'. Although they have not taken such a contention in the proceedings resulting in Exhibit P-9, they would now raise a contention that for the purpose of becoming eligible for exemption under Section 16(1)(a), it is not sufficient that the petitioner is employing less than 50 persons, but the other condition referred to therein that the establishment is working without the aid of power also should be satisfied.

(3.) I have considered the rival contentions' in detail.