Calcutta High Court (Appellete Side)
Regional Provident Fund Commissioner … vs Employees Provident Fund Appellate … on 20 February, 2026
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
WPA 11596 of 2011
Regional Provident Fund Commissioner and another
Vs.
Employees Provident Fund Appellate Tribunal, Ministry of Labour &
Employment Government of India & Ors.
For the Petitioners : Ms. Aparna Banerjee.
For the Respondents : None.
Hearing concluded on : 30.01.2026
Judgment on : 20.02.2026
Shampa Dutt (Paul), J.:
1. The writ petitioners being the statutory authorities working under
the Employees Provident Fund Organisation and discharging their
statutory functions under the Employees Provident Fund and
Miscellaneous Provisions Act, 1952 and the scheme framed
thereafter, have filed the instant writ petition challenging the order
dated 24th March, 2011 passed by the learned Employees‟ Provident
Fund Appellate Tribunal, New Delhi in ATA No. 497 (15) of 2009
under Section 71 of the Employees Provident Fund and
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Miscellaneous Provisions Act, 1952. The learned Tribunal has
allowed the appeal being ATA No. 497(15) of 2009 filed by the
respondent no. 2, M/s. Klar Sehen Pvt. Ltd., the appellate tribunal
set aside the order passed by the petitioners/provident fund
authorities under Section 7A of the Employees Provident fund
authorities under Section 7A of the Employees Provident Fund and
Miscellaneous Provisions Act, 1952.
2. The petitioners on 7th November,2006 received a complaint against
the respondent no. 2, from the secretary of AAL West Bengal Sales
Representatives Union, stating that respondent no. 2 had deprived
the trainee medical representatives working in respondent company
from the legitimate right of becoming a member under the
Employees Provident Fund and Miscellaneous Provisions Act, 1952.
3. As such Enforcement Officers were appointed to inspect the office of
the respondent no. 2 and the said Enforcement Officers submitted a
report on 21st December, 2006.
4. The Petitioners on the basis of the said report dated 29th December,
2006 initiated the proceedings under Section 7A of the Employees
Provident Fund and Miscellaneous Provisions Act, 1952 and
summon was issued to the respondent company on 12th March,
2007.
5. Pursuant to the said summon, hearing under Section 7A of the
Employees Provident Fund and Miscellaneous Provisions Act, 1952
took place on several dates and after giving several opportunity of
hearing to the respondent company, an order under Section 7A of
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the Employees Provident Fund and Miscellaneous Provisions Act,
1952 was passed on 6th February, 2009, by holding that the trainee
medical representatives working in the respondent company were
neither apprentices under the Apprentice Act of 1961 or under
standing orders and as such they had to be considered as
“employee” within the meaning of Section 2(f) of the Employees
Provident Fund and Miscellaneous Provisions Act, 1952 and
paragraph 26 (1) (a) of the Employees Provident Fund Scheme, 1952
and would be entitled for all benefits under the Employees Provident
Fund and Miscellaneous Provisions Act, 1952.
6. An amount of Rs. 18, 74, 239/- as the total dues in respect of the
said trainee medical representatives working under the respondent
no. 2 for the period 5/1999 to 3/2007 was demanded.
7. The respondent no. 2 did not submit the assessed amount of Rs.
18, 74, 239/- and as such the petitioners passed an attachment
order to the banker of the respondent company under Section 8F
of the of the Employees Provident Fund and Miscellaneous
Provisions Act, 1952 on 6th March , 2009 and 19th March, 2009.
8. The respondent company in the mean time filed an application
under Section 7B of the Employees Provident Fund and
Miscellaneous Provisions Act, 1952 for review of order dated 6th
February, 2009, passed under Section 7A of the Employees
Provident Fund and Miscellaneous Provisions Act, 1952 pursuant
to the leave granted by the Hon‟ble High Court, Calcutta by an
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order dated 23rd March, 2009 in writ petition being WPA No. 5303
(W) of 2009, filed by the respondent company.
9. The petitioners after giving reasonable opportunity of hearing to the
respondent company rejected the review application by an order
dated 25th June, 2009, by upholding the order passed under
Section 7A of the Employees Provident Fund and Miscellaneous
Provisions Act, 1952.
10. An order under Section 7Q of the Employees Provident Fund and
Miscellaneous Provisions Act, 1952 was passed on 5th August,
2009, for the delay in making payment of the amount of Rs. 18, 74,
239/- assessed under Section 7A of the Employees Provident Fund
and Miscellaneous Provisions Act, 1952 , for the period 5/1999 to
3/2007.
11. The respondent company filed an appeal under Section 71 of the
Employees Provident Fund and Miscellaneous Provisions Act, 1952
before the Employees Provident Fund Appellate Tribunal, New Delhi
being ATA No. 497 (15) of 2009 and in the said appeal, the
impugned order was passed wherein the Appellate Tribunal set
aside the order passed under Section 7A of the EPF Act, 1952.
12. Hence the writ application, on the ground that the learned Tribunal
failed to consider that there was no standing order of the
respondent company in respect of the said trainee medical
representatives and as such the said trainees were the employees as
per the definition of „employee‟ as per Section 2 (f) of the EPF Act.
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13. It is further stated that the respondent company had filed a writ
petition, being WPA No. 10858 of 2011 before the Hon‟ble High
Court, Calcutta against the petitioners to get back the amount of
Rs. 18, 74, 239/-, the amount assessed under Section 7A of the
Employees Provident Fund and Miscellaneous Provisions Act,
1952 and already recovered by the petitioners by way of attachment
orders passed under Section 8F of the Employees Provident Fund
and Miscellaneous Provisions Act, 1952. The said writ petition has
been dismissed for default on 20th June, 2025, as no one appeared
on behalf of the writ petitioner.
14. On hearing the learned counsel appearing for the parties and on
perusal of the materials on record including the impugned order, it
appears that the case of the respondent before the tribunal was that
the appellant was engaging the employees in the guise of trainees,
who were doing the work of a regular employee, so they cannot be
treated as trainees.
15. Vide his order dated 06.02.2009 the Regional P.F. Commissioner
(Compliance) Regional Office, Kolkata, held:-
“………In the present case, however it is clear that the
trainees under question are neither apprentices under
the Apprentices Act, 1961 or under standing orders of
the establishment. Hence, they cannot be called
apprentices to whom the protection shall apply and
they will have to be considered “employee” within the
meaning of Section 2(f) of the EPF & MP Act, 1952 and
Para 26(1)(a) of EPF Scheme 1952 and eligible for all
benefits provided under EPF & MP Act, 1952………..”
16. In appeal the EPFAT vide order dated 24th March, 2011, held:-
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“4. It is contended that the trainees are not the employee of
the appellant. Reliance is placed in the case of RPFC vs.
M/s. Central Aercanut & Coca Marketing and Processing
Coop. Ltd. reported in AIR 2006 Supreme Court at page 971.
5. The learned advocate for respondent supported the
impugned order.
6. Section 2(f) defines the word „employee‟ as follows:-
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 indirectly from the employer ,
(and includes any person,-
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 (52 of 1961)
or under the standing orders of the establishment;”
The perusal of the definition makes it clear that person
appointed under Apprenticeship Act or under a Certified
Standing Order cannot be treated as employee of the
establishment. In the absence of Certified Standing Order,
the Model Standing Order will govern the case and there is
no dispute to this position. Trainee is a person who has no
right to work and is under no obligation to accept the job if
offered. In the case of of Regional PF Commissioner Vs.
M/s. Central Aercanut and Coco Marketing &
Processing Corporation Ltd., the lordship held that, “the
trainees were apprentice engaged under the standing order
of the establishment. Since, the trainees are treated as
apprentice, the appellant is not liable to pay the PF for
them.” In the case in hand, the report of the Enforcement
Officer reveals that the persons concerned were the
“trainees” and there is no finding showing that they
are doing the work of regular employee.
7. Thus, in view of the discussion held above, the order of
the authority cannot be sustained. Hence ordered, the
appeal is allowed. The order of the EPF Authority is hereby
set aside. Copy of order be sent to the parties and the file be
consigned to record room.
Sd/-
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PRESIDING OFFICER, EPFAT”
17. In The Regional Provident Fund Commissioner, Mangalore vs.
M/s. Central Arecanut & Coca Marketing and Processing Co-op.
Ltd., Mangalore (2006) 2 SCC 381, the Supreme Court held:-
“……………..Undisputedly, the respondents are
trainees. The question as rightly noted by the Division
Bench is whether an apprentice can be deemed to be
an employee within the meaning of Section 2(f) of the
Act in the case at hand.
Section 12-A of the Standing Orders Act, inter-alia
provides as follows:
“12A. Temporary application of model standing orders.
(1) Notwithstanding anything contained in Sections
3 to 12, for the period commencing on the date on
which this Act becomes applicable to an industrial
establishment and ending with the date on which the
standing orders as finally certified under this Act come
into operation under Section 7 in that establishment,
the prescribed model standing orders shall be deemed
to be adopted in that establishment, and the provisions
of section 9, sub-section (2) of section 13 and section
13-A shall apply to such model standing orders as they
apply to the standing orders so certified.
(2) Nothing contained in sub-section (1) shall apply to
an industrial establishment in respect of which the
appropriate Government is the Government of the State
of Gujarat or the Government of the State of
Maharashtra.”
From a bare reading of Section 12-A it is
manifestly clear that until the Standing Orders
are finally certified and come into operation, the
prescribed model standing orders shall be
deemed to be adopted in the concerned
establishment. The Model Standing Orders
prescribed under Rule 3(1) of the Industrial
Employment (Standing Orders) Central Rules,
1946 (in short the ‘Central Rules’) are contained
in Schedule I to the said Rules. Standing Order
No.2 thereof classified workmen as follows:
1) Permanent
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2) Probationers
3) badlis
4) temporary
5) casual
6) apprentices.
‘Apprentice’ is defined in clause (g) of Standing Order
No.2 as follows:
“An ‘apprentice’ is a learner who is paid an allowance
during the period of his training.”
The Apprentices Act defines an ‘apprentice’ as follows:
“2(aa): ‘apprentice’ means a person who is undergoing
apprenticeship training in pursuance of a contract of
apprenticeship.”
In the present case, admittedly the Standing Orders
were not at the relevant point of time certified.
Therefore, in terms of Section 12-A of the Standing
Orders Act, the Model Standing Orders are deemed to
be applicable. Section 2(f) of the Act defines an
employee to include an apprentice, but at the same
time makes an exclusion in the case of an apprentice
engaged under the Apprentices Act or under the
Standing Orders. Under the Model Standing Orders an
apprentice is described as a learner who is paid
allowance during the period of training.
In the case at hand, trainees were paid stipend
during the period of training. They had no right
to employment, nor any obligation to accept any
employment, if offered by the employer.
Therefore, the trainees were ‘apprentices’
engaged under the ‘Standing Orders’ of the
establishment.
Above being the position, it cannot be said that the
concerned 45 trainees were employee in terms
of Section 2(f) of the Act. In other words, an apprentice
engaged under the Apprentices Act or under the
Standing Orders is excluded from the definition of an
’employee’ as per Section 2(f) of the Act………..”
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18. In the present case, the complainant was a “trainee” and as such in
view of the judgment in Coca Marketing (Supra), the impugned
order dated 24th March, 2011, passed by the learned employees
provident fund appellate tribunal, New Delhi in ATA No. 497 (15) of
2009, being in accordance with law, calls for no interference.
19. WPA 11596 of 2011 is disposed of.
20. Connected application, if any, stands disposed of.
21. Interim order, if any, stands vacated.
22. Urgent photostat certified copy of this Judgment, if applied for, be
given to the learned Advocates for the parties on the usual
undertakings.
(Shampa Dutt (Paul), J.)
