IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 WP(C).No. 15453 of 2006(M) ----------------------------------------- PETITIONER(S): ------------------------- THE KERALA INSTITUTE OF MEDICAL SCIENCES, ANAMUGHAM, ANAYARA P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR DR.M.I. SAHADULLA. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT(S): ---------------------------- THE REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, BHAVISHYANIDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. BY SRI.N.N. SUGUNAPALAN,SENIOR ADVOCATE, SC, P.F. ADV.SMT.T.N.GIRIJA, SC,EPF ORGANISATION THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2011,ALONG WITH WPC NO.10644 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.15453/2006 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE DIRECTIONS ISSUED BY THE PROVIDENT FUND INSPECTOR DATED 18/9/2002. P2 COPY OF THE LETTER DATED 12/10/2002 FROM THE PETITIONER TO THE ENFORCEMENT OFFICER. P3 COPY OF THE LETTER DATED 5/7/2004 ISSUED BY THE ASSISTANT PROVIDENT FUND COMMISSIONER. P4 COPY OF THE ORDER DATED 19/10/2005 ISSUED BY THE RESPONDENT. P5 COPY OF THE PROCEEDINGS DATED 22/2/07 OF THE RESPONDENT. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE LETTER DATED 29/8/2005. /TRUE COPY/ P.A.TO.JUDGE sts S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)Nos. 15453 of 2006 & 10644 of 2007 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of September, 2011 J U D G M E N T The petitioner in these writ petitions, who is the same in both, is a hospital and an establishment covered under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. In the course of running the hospital, the petitioner employs trainees. While assessing contributions in respect of employees of the petitioner, a doubt arose as to whether the trainees are employees liable to be covered under the Act and whether contributions are payable in respect of the trainees. The matter was taken up by the Regional Provident Fund Commissioner, Trivandrum, under paragraph 26B of the Employees' Provident Funds Scheme, 1952, for deciding whether the trainees employed by the petitioner are required to be enrolled as members of the Employees' Provident Fund. Despite the finding that the employees in question are actually trainees, the Regional Provident Fund Commissioner, the 1st respondent herein, W.P.(C)Nos. 15453 of 2006 & 10644 of 2007 -2- came to the conclusion that they are liable to be covered under the Act and confirmed that the petitioner is liable to pay contributions in respect of the trainees as well, by Ext.P4 order. W.P. (C) No.15453/2006 is filed by the petitioner challenging Ext.P4 order of the respondent, in that writ petition under paragraph 26B of the Employees' Provident Funds Scheme. While that writ petition was pending, orders were initiated passed under Section 14B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 assessing damages for delay in payment of the contributions in respect of the trainees. Ext.P7 order has been passed assessing damages and proceedings under Section 8F of the Act has been initiated by Ext.P8. W.P. (C) No.10644/2007 is filed by the hospital challenging those orders. 2. The issue to be decided in these writ petitions is as to whether the petitioner is liable to cover the trainees under the Act and to pay contributions in respect of the trainees. I need not go into a thread bare examination of W.P.(C)Nos. 15453 of 2006 & 10644 of 2007 -3- the various provisions of the Act and Scheme to decide this question, in view of the Hon'ble Supreme Court's decision on the subject in Regional Provident Fund Commissioner, Mangalore v. Central Arecanut & Coca Marketing and Processing Coop. Ltd., Mangalore [(2006) 2 SCC 381, wherein the Supreme Court has, in identical situation held that even where there are no certified Standing Orders for the establishment involved, in so far as in respect of establishments coming under the Industrial Employment (Standing Orders) Act, 1946, until certified standing orders are framed the model standing orders prescribed under the Industrial Employment (Standing Orders) Central Rules, 1946 would apply and therefore trainees who come within the definition of 'apprentices' under the model standing orders are excluded employees in respect of whom an employer is not liable to pay contributions as per the provisions of the Act and the Scheme. In this case, there is not much dispute as to whether the trainees in question are trainees or not. In fact Ext.P4 order proceeds on the basis W.P.(C)Nos. 15453 of 2006 & 10644 of 2007 -4- that they are trainees. As such the facts of the case are exactly identical to the case in Central Arecanut & Coca Marketing and Processing Coop's case (supra). As such following that judgment, the orders impugned in these writ petitions are quashed. If during the pendency of these writ petitions any payments have been made by the petitioner in respect of the employees that is liable to be refunded to the petitioner. However I direct that such amounts paid shall be adjusted against future contributions payable by the petitioner in respect of other covered employees. These writ petitions are disposed of as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/