- (1.) In this writ petition, the Petitioners, M/s. Tirupati Jute Industries Ltd. and its Director, have prayed for an Order commanding upon the Respondents to withdraw and/or cancel and quash the Order dated 16.2.2009 as contained in Annexure-P/8 to the writ petition purporting to be an Order passed under Section 7-A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the said Act). The Petitioners have also prayed for quashing the Order dated 26.2.2010 as contained in Annexure-P/10 passed under the provisions of Section 7-B of the said Act refusing to review the Order dated 16.2.2009. The Petitioners have also prayed for setting aside the Order/ Communication dated 23.7.2010 as contained in Annexure-P/11 whereby and whereunder the Senior Manager (Operations) of M/s. United Bank of India informed the Petitioners that their account has been attached by the Employees' Provident Fund Organisation and that they have been Ordered by the Employees' Provident Fund authorities to pay the available balance which was lying in their account and for which the amount of Rs. 1,81,128.18 paise had already been debited on 15.7.2010. Other consequential prayers have been made including a prayer that the Respondents be injuncted from giving effect to the impugned Orders. During the course of submissions, Mr. Partha Bhanjan Chowdhury, learned Counsel appearing for the Petitioners, submitted that the very initiation of the proceedings under Section 7-A of the said Act was totally without jurisdiction inasmuch the said Act could not at all have been made applicable against the Petitioners qua Trainees/Apprentices in view of the fact that such persons are ousted from the definition of the word "Employee" as defined under Section 2(f) thereof. In support of such a contention, Mr. Chowdhury relied upon the case of Regional Provident Fund Commissioner, Bangalore v. Central Arecanut and Coca Marketing and Processing Co-operative Ltd., 2006 108 FLR 805 Considering the aforementioned point argued, the Writ Petition was admitted for final hearing on 2.9.2010 whereafter it was heard on various dates and on 14.1.2011 the following Order was passed: 14.1.2011 W.P. 16954 (W) of 2010 Mr. Partha Bhanja Chowdhury Mr. S.K. Singh, Mr. Sujit Sharma... for the Petitioner Mr. P.K. Mallick, Mr. Amit Kumar Gupta... for the Respondents Although this writ petition was admitted for final hearing on 2.9.2010 and matter was directed to be listed on 8.12.2010 with an interim order, this Court could not take up the matter as it was holding Court in Circuit Bench at Port Blair from 6th December, 2010 to 20th December, 2010. In the meantime another Hon'ble Single Judge directed the matter to be listed after the Christmas holidays and the interim order passed earlier was extended by one week after reopening of the Court. Thereafter on 10th January, 2011 the matter was argued both by Mr. Partha Bhanjan Chowdhury as well as by Mr. P.K. Mallick at great length and Mr. Mallick stated that he was fully ready with all points and since the case involved points of law, there was no necessity to file any counter-affidavit and therefore he proceeded to argue the case. The matter was therefore heard in extenso on that day and again, was ordered to be listed on 13th January, 2011 as a part-heard matter. On 13th January, 2011 the matter was given (sic again) heard for the whole of the second half. Today again the case has been heard for the whole of the second half. Hearing is now complete and order is reserved. In view of the fact that affidavits have not been filed, allegations made, if any, would not be deemed to have been accepted by any of the Respondents. (Tapen Sen, J.) (Quoted)
(2.) It is on the basis of the aforementioned facts and points of law argued, that the writ petition was taken up for hearing and judgment was reserved on the said day i.e. on 14.1.2011.
(3.) Learned Counsel for the Petitioners, drew the attention of this Court to the first impugned Order dated 16.2.2009 which was passed under Section 7-A of the said Act and submitted that the Order itself would show that the Petitioners had raised the point that "Incentives" paid to an employee did not attract the provisions of the said Act and that the Petitioners were not liable for payment of Provident Fund Contribution on incentive allowances, Trainee Allowances and stipend as Trainees did not have any right of employment nor were they obliged to expect any employment even if offered by the Employers. He submitted that under the definition of the word "Employee" as defined under Section 2(f) of the said Act, such a person could be deemed to be an employee only if he was employed for wages in any kind of work, manual or otherwise. He submitted that Trainees/Apprentices engaged under the Apprentices Act or under the Standing Orders Act were excluded from the definition of the word "Employee" and therefore they could not be brought within the purview of Section 2(f) and therefore the very initiation of proceedings under the said Act was totally without jurisdiction.;