JUDGMENT : Are the trainees undergoing training in the Lord Krishna Bank Ltd. to be enrolled as members of the provident fund established under the Employees’ Provident Funds Scheme framed under S.5 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter, the Act), is the question that falls for decision in this case. 2. On joining training, a trainee is entitled to receive only a stipend. Ordinarily, the period of training is of six months duration. At any time during the period of training the Bank can terminate the training without any prior notice and without assigning any reason therefor. The period of training can likewise be extended. During the period of training, a trainee is expected to get a thorough knowledge of the manual of instructions of the Bank, circulars, rules of business, policies and procedures, system of working etc. of the Bank. He should thus be able to discharge the duties and responsibilities expected of him satisfactorily. He should also show his capacity in mobilising deposits by attaining the deposit targets. Unless the trainee attains the required standard of proficiency, there is no assurance that he would be appointed to the service of the Bank. On his being taken as a trainee of the Bank, he shall have to resign from the job, if any, he is holding and shall also have to relinquish agency, if any, he holds. However, there is no commitment and guarantee that a trainee will be absorbed in the service of the Bank even on satisfactory completion of the training. On such completion of training he has to appear for such tests and/or interviews prescribed by the Bank from time to time for considering his eligibility for appointment as a probationary hand for a period of one year. These are the material terms of the contract of appointment as a trainee. 3. The above mentioned terms of the contract of appointment of a trainee entered into between the Bank and a prospective trainee as evidenced in this case by Exts. P1 and P7 leave no room for doubt that the trainee is not a member of the service of the Bank, even as a probationer. 3. The above mentioned terms of the contract of appointment of a trainee entered into between the Bank and a prospective trainee as evidenced in this case by Exts. P1 and P7 leave no room for doubt that the trainee is not a member of the service of the Bank, even as a probationer. He is, by the training undergone by him, expected to learn and equip himself with everything needed for getting absorbed into the service of the Bank, or in other words, and to be more precise, to make himself eligible for absorption as a probationer in the Bank’s service. In legal terminology the trainee is therefore an ‘apprentice’, and Exts. P1 and P7 constitute a contract of apprenticeship. On this there is no dispute between the learned counsel on either side. The point for decision formulated in the beginning of this judgment can therefore be recast as: ‘is an apprentice to be enrolled as a member of the Fund’. “By a contract of apprenticeship a person is bound to another for the purpose of learning a trade or calling, the apprentice undertaking to serve the master for the purpose of being taught, and the master undertaking to teach the apprentice. Where teaching on the part of the master or learning on the part of the other person is not the primary but only an incidental object, the contract is one of service rather than of apprenticeship; but, if the right of receiving instruction exists, a contract does not become one of service because, to some extent, the person to whom it refers does the kind of work that is done by a servant, or because he receives pecuniary remuneration for his work.” (Halsbury’s Laws of England, Third Edition, Vol. 25. para 877, pp. 451-52). Quoting the above passage the Supreme Court in ESI. Corporation v. Tata Engineering & Co. (AIR. 1976 SC. 66 at 68) said as follows: “The heart of the matter in apprenticeship is, therefore, the dominant object and intent to impart on the part of the employer and to accept on the part of the other person learning under certain agreed terms. That certain payment is made during the apprenticeship, by whatever name called, and that the apprentice has to be under certain rules of discipline do not convert the apprentice to a regular employee under the employer. That certain payment is made during the apprenticeship, by whatever name called, and that the apprentice has to be under certain rules of discipline do not convert the apprentice to a regular employee under the employer. Such a person remains a learner and is not an employee.” and pointed out- “It is, therefore, inherent in the word ‘apprentice’ that there is no element of employment as such in a trade or industry but only on adequate well-guarded provision for training to enable the trainee after completion of his course to be suitably absorbed in earning employment as a regular worker. The fact that a trainee may have been absorbed in the company where he is undergoing the training, is not relevant for the purpose of comprehending the content of the term.” Thus an apprentice is not an employee as understood in legal parlance. Is the position different under the Act and the Scheme, has to be considered next. 4. The Scheme has been framed under the power conferred on the Central Government by S.5 of the Act to frame the Scheme ‘for the establishment of provident funds under the Act for employees or for any class of employees’ and for none else. (Emphasis supplied). S.2 (f) of the Act defines ‘employee’ as follows:- ‘2. Definitions. In this Act, unless the context otherwise requires, xx xx xx (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 employed by or through a contractor in or in connection with the work of the establishment;” 5. Construing almost the similar definition of the word ‘employee’ in S.2 (9) of the Employees’ State Insurance Act, 1948, which runs as follows:- “employee” means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and (i) who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere;......” the Supreme Court in E.S.I. Corporation v. Tata Engineering & Co. in (AIR. 1976 SC. in (AIR. 1976 SC. 69) said: “From the terms of the agreement it is clear that apprentices are mere trainees for a particular period for a distinct purpose and the employer is not bound to employ them in their works after the period of training is over. During the apprenticeship they cannot be said to be employed in the work of the company or in connection with the work of the company. That would have been so if they were employed in a regular way by the company. On the other hand the purpose of the engagement under the particular scheme is only to offer training under certain terms and conditions. Besides, the apprentices are not given wages within the meaning of that term under the Act. If they were regular employees under the Act, they would have been entitled to additional remuneration such as daily allowance and other allowances which are available to the regular employees. We are, therefore, unable to hold that the apprentice is an employee within the meaning of S.2(9) of the Act.” 6. The same is the position under the Act. So far as an apprentice is concerned, that is to say, he is not an employee as defined in S.2 (f) of the Act in so far as the purpose of the engagement is only to offer training under certain terms and conditions’ wherefore he ‘cannot be said to be employed in the work’ of the Bank ‘or in connection with the work’ of the Bank The term ‘wages’ is not defined in the Act, and in the absence of any such definition it should be understood according to its ordinary dictionary meaning, viz., ’that which is paid for services’ or ‘as money payable by a master in respect of services’. Ext. P1 says that during the period of training a trainee will not be entitled to any privileges and/or benefits enjoyed by those in service of the Bank. Thus, under the contract of apprenticeship, a trainee is entitled only to receive the stipulated stipend agreed upon, and not the wages payable to those in regular service. Therefore, no scheme can be framed under S.5 of the Act for establishment of provident funds under the Act for apprentices. 7. Para.26 of the Scheme requires ‘every employee other than an excluded employee” to become a member of the Fund. Therefore, no scheme can be framed under S.5 of the Act for establishment of provident funds under the Act for apprentices. 7. Para.26 of the Scheme requires ‘every employee other than an excluded employee” to become a member of the Fund. The term ‘excluded employee’ is defined in Para.2 (f) of the Scheme as follows: “2. Definition. In this Scheme, unless the context otherwise requires: XXXX XX (f) “excluded employee” means (i) an employee who, having been a member of the Fund, withdrew the full amount of his accumulations in the Fund under clause (a) or (c) or sub-paragraph (1) of Para.69: (ii) an employee whose pay at the time he is otherwise entitled to become a member of the Fund, exceeds one thousand and six hundred rupees per month; Explanation. “Pay” includes basic wages with dearness allowance, retaining allowance (if any) and cash value of food concessions admissible thereon; xxxx (iv) an apprentice; Explanation. An apprentice means a person who, according to the certified standing orders applicable to the factory or establishment, is an apprentice, or who is declared to be aa apprentice by the authority specified in this behalf by the appropriate Government;” 8. The stand taken on behalf of the respondents is that an apprentice who does not come within the ambit of the explanation is not an ‘excluded employee’, and therefore, he is to be enrolled as a member of the Fund. This argument proceeds on the assumption that an apprentice, unless he ii an excluded employee, is an employee. Apart from the fact that under S.5 of the Act, a Scheme can be framed for establishing provident funds only for employees or for any class of employees, as defined in S.2 (f) of the Act, the term ‘employee’ in the Scheme is, since that term has not been defined therein, to have, as per Para.2 (m) thereof, the meaning assigned to that expression in S 2 (f) of the Act; and it has already been found that an apprentice is not an employee as defined in S.2 (f) of the Act Therefore, the basic assumption on which the argument is advanced fails and the argument cannot be upheld. It may here be observed that the explanation defining the expression apprentice which limits the meaning thereof to such apprentices who fall within the ambit of that definition was added in 1958, and that prior thereto all apprentices were excluded employees. If the explanation was added with a view to classify apprentices into two groups, (i) employees, and (ii) excluded employees, so as to compel the enrolment of the first mentioned group as members of the Fund, as suggested on behalf of the respondents during the course of the arguments, in my view, that object has not been achieved. And it seems that the same cannot be achieved without altering the definition of ‘employee’ in S.2(f) of the Act so as to include an apprentice also within the ambit of that expression. As pointed out in the E.S.I. Corporation case by the Supreme Court with reference to the definition of ‘workman’ in S.2(s) of the Industrial Disputes Act, 1947, the legislature is well aware of resort to such a definition, so as to rope in an apprentice also within its ambit. 9. The 1st respondent, the Regional Provident Fund Commissioner, as per his Ext. P6 proceedings decided by virtue of his power under Para.26B of the Scheme, that the trainees of the Bank are to be enrolled as members of the Fund, after overruling the Bank’s contention advanced on the basis of the decision in E. S. I. Corporation case that they are not employees as defined in S.2(f) of the Act. This is the order that is impugned herein. The Bank was by Ext. P6 order directed to enroll the trainees as members of the Fund and to pay the dues under threat of prosecution proceedings as contemplated by S.14 of the Act read with Para.76 of the Scheme, and proceedings to recover the amount due as an arrear of land revenue. In view of the above discussion the petitioner Bank is entitled to have the same quashed, as sought for, and I do so. In view of the above discussion the petitioner Bank is entitled to have the same quashed, as sought for, and I do so. Though the petitioner Bank has sought clause (f)(iv) in Para.2 of the Scheme declared as ultra vires of the power the 2nd respondent, the Union of India, has under S.5 of the Act, in the light of the discussion clarifying the scope thereof and in view of the fact that apprentices falling within the definition contained in the explanation thereto are certainly not employees as defined in S, 2(f) of the Act, it is only necessary to declare that the impugned clause in Para.2 of the Scheme will not also warrant treating apprentices not falling within the definition contained in the explanation thereto as employees as defined in S.2(f) of the Act, and I declare so. It goes without saying that Ext. P6 proceedings having been quashed, the respondents are not entitled to proceed as stated therein to prosecute the petitioner Bank or to recover the amount as stated therein. This writ petition is allowed to the above extent. There will be no order as regards costs. Allowed.