JUDGMENT : (Prayer: Writ petition filed under Article 226 of the Constitution of India for writ of certiorari calling for the records relating to the order of the 2nd respondent in Proceedings No.TN/SRO-SLM/34970 dated 11.02.2000 as affirmed by the order of the 1st respondent in Proceedings No.ATA No.127 (13)/2000 dated 29.03.2005, quash the same.) 1. This writ petition has been filed challenging the order of the 1st respondent dated 29.03.2005 in proceedings ATA No.127 (13)/2000 confirming the order of the second respondent dated 11.02.2000 in proceedings No.TN/SRO-SLM/34970 dated 11.02.2000. 2. It is the case of the petitioner that they are manufacturers of cotton yarn and they are 100% export oriented unit which started commercial production in February 1994. According to them, they enjoyed infancy protection under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as ‘EPF & MP Act, 1952’). According to them, they do not have their own standing orders certified under the provisions of Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as ‘IESO Act, 1946’). According to the petitioner, by virtue of the Tamil Nadu Industrial Employment (Standing Orders) Rules 1947, in the event of industrial establishment not having its own certified Standing Orders, the Model Standing Orders set out in Schedule 1 to the Rules would apply. According to the petitioner, the Model Standing Orders classified the workmen into seven different categories and one of the categories of workmen classified under the Model Standing Orders is Apprentice. 3. According to the petitioner, since their unit was set up only in February 1994, the petitioner was entitled for infancy protection under the EPF & MP Act, 1952 for a period of three years. It is their case that the Act will be applicable to the petitioner only from January 1997 onwards. According to the petitioner, as of January 1997, there were 256 employees, out of which, 200 were apprentices and 56 were confirmed employees. 4. It is the case of the petitioner that they have also entered into a Memorandum of Settlement under Section 18(1) of the Industrial Dispute Act, 1947 setting out a Scheme of Apprenticeship. According to them, individual agreements have also been entered into with each apprentice and the Agreements are as per the format contained in Annexure-1 of the Settlement. 5. It is the case of the petitioner that they have also entered into a Memorandum of Settlement under Section 18(1) of the Industrial Dispute Act, 1947 setting out a Scheme of Apprenticeship. According to them, individual agreements have also been entered into with each apprentice and the Agreements are as per the format contained in Annexure-1 of the Settlement. 5. It is the case of the petitioner that they engaged the services of M/s.Harita Consultancy Services, Bangalore, from October 1993 onwards which is a group of textile technologists/engineers, having a combined experience over 15 decades and they have entered into apprentice agreement with them for appointment of apprentices for their establishment. According to the petitioner, the said M/s.Harita Consultancy Services cater to the specific needs of new textile mills on turn-key basis to fulfill their needs in terms of scientific personnel training by using the latest techniques. According to the petitioner, since the petitioner textile mill is situated in a backward area, there are workmen who are hardly having experience of working in textile mills and therefore, it became necessary for them to impart training to the apprentices in order to enable them to acquire the required skills necessary for working in a textile mill. 6. According to the petitioner, the enforcement officer under the EPF & MP Act, 1952 having jurisdiction over the petitioner visited the petitioner’s factory and sought certain clarifications and in response thereto, the petitioner addressed letters dated 17.03.1997 and 20.03.1997 enclosing copies of various documents. It is also the case of the petitioner that the letters were issued on 30.07.1997 and 20.01.1998 giving particulars of Balance Sheet, Sales Tax Order, the total number of employees and the strength as per Form-12A. According to the petitioner, by order dated 17.02.1998, the Enforcement Officer requested the petitioner to produce a copy of the Model Standing Orders and this was also produced by letter dated 18.02.1998. It is the case of the petitioner that the petitioner also produced a copy of the Memorandum of Settlement under Section 18(1) of the Industrial Disputes Act containing Annexure-I setting out the Model Apprenticeship Agreement. 7. It is the case of the petitioner that the Assistant Commissioner of Employees’ Provident Fund, Salem-1 issued summons under Section 7 A of the EPF & MP Act, 1952 on 10.03.1998. 7. It is the case of the petitioner that the Assistant Commissioner of Employees’ Provident Fund, Salem-1 issued summons under Section 7 A of the EPF & MP Act, 1952 on 10.03.1998. According to the petitioner, they appeared in response to the said summons and submitted a detailed representation dated 16.03.1998. According to them, the said Assistant Commissioner passed orders dated 31.03.1998 under Section 7A of the EPF & MP Act, 1952 determining a total sum of Rs.7,51,779.35 payable by the petitioner on the basis that all the workmen engaged right from the inception of coverage were confirmed employees and that, there were not a single apprentice. 8. Aggrieved by the aforesaid order of the Assistant Commissioner passed under Section 7-A of the Act, the petitioner filed an appeal before the Appellate authority under Section 7-I of the Act. The Tribunal by its order dated 30.11.1998 allowed the appeal by remanding the matter back to the original authority on the ground that the original authority while passing orders under section 7-A of the Act, has not examined as to whether the class of workmen shown by the petitioner as apprentices were infact apprentices i.e., they were engaged by the petitioner only for imparting training or not. 9. According to the petitioner, after remand, the petitioner received a notice dated 16.07.1999 from the Assistant Commissioner (Original Authority) calling for hearing on 29.07.1999. According to the petitioner, the petitioner filed a detailed representation dated 09.09.1999 enclosing copies of the training programme syllabus, certificate given to M/s.Harita Consultancy Services, profile of Consultants, payment details to Consultants, photo copies of apprenticeship agreements in respect of 20 employees, statement giving details, number of apprentice from February 1994 to August 1999, number absorbed on the permanent rolls etc. According to the petitioner, despite submission of all relevant documents, the second respondent after remand, by his order dated 11.02.2000 has once again held that all the apprentices engaged by the petitioner were regular employees and on that basis, has determined a total sum of Rs.7,51,779.35 payable towards Employee provident fund contributions. According to the petitioner, while pending disposal of the earlier appeal, the petitioner had already deposited 5,63,835/- being 75% of the amount determined by the earlier order and this was done by a Demand Draft No.882005 dated 02.09.1998 payable at New Delhi in favour of the Tribunal. 10. According to the petitioner, while pending disposal of the earlier appeal, the petitioner had already deposited 5,63,835/- being 75% of the amount determined by the earlier order and this was done by a Demand Draft No.882005 dated 02.09.1998 payable at New Delhi in favour of the Tribunal. 10. Aggrieved by the order dated 11.02.2000 passed by the second respondent, determining the sum of Rs.7,51,779.35 payable by the petitioner, the petitioner preferred an appeal to the first respondent which was taken on file by the first respondent in ATA.No.127(13)/2000. By order dated 29.03.2005, the appeal was dismissed confirming the order of the second respondent dated 11.02.2000. Aggrieved by the order dated 29.03.2005 passed by the first respondent, this writ petition has been filed. 11. A counter affidavit has been filed by the respondents stating that the so called apprentices engaged by the petitioner were actually engaged in the actual production and were paid salaries and other benefits. According to them, the so called apprentices do not come under the purview of apprentices. According to them, the petitioner do not have any certified Standing Orders. According to them, it is obligatory on the part of the petitioner management to frame Standing Orders and send it for certification to the competent authority within six months under the IESO Act, 1946. According to them, the Model Standing Orders could be made applicable for the interim period starting from the date of submission of Standing Orders to the date of Certification of the same. According to them, the petitioner establishment has totally violated this condition under the IESO Act, 1946 and therefore, they cannot claim any benefits which are allowed under the EPF & MP Act, 1952 in respect of the category “apprentices” coming under the Model Standing Orders. 12. According to the respondents, as per their records, the petitioner establishment employed 374 persons and out of which 282 persons were treated as apprentices which constituted about 75%. According to them, excessive employees named as apprentices will amount to clear violation of ratio of apprentice as against the regular employees prescribed by the appropriate Government. According to them, as per the agreement for apprenticeship, the trainees are not entitled for any other allowances or concessions apart from the stipend. According to them, excessive employees named as apprentices will amount to clear violation of ratio of apprentice as against the regular employees prescribed by the appropriate Government. According to them, as per the agreement for apprenticeship, the trainees are not entitled for any other allowances or concessions apart from the stipend. Further according to them, under the alleged apprenticeship agreements, the alleged trainees/apprentices have agreed to follow the work norms of the mill, follow the procedures to fulfill the jobs entrusted to them, and they have also agreed to accept any alternative work. According to the respondents, these conditions are more suitable for a regularised worker than a trainee/apprentice. According to them, as seen from the apprenticeship agreement, the main focus of the agreement is also on the work to increase production. According to them, the issue of imparting on the job or off the job training are not spelt out in the alleged apprenticeship agreement. 13. According to them, the petitioner have taken a stand that the so called apprentices appointed by them for learning work are excluded employees as per Section 2(f) of the EPF & MP Act, 1952 as they have been appointed under the provisions of the Model Standing Orders. According to them, the petitioner has tried to take advantage of the classification made in the Model Standing Orders treating all persons as “apprentices” with the view to deny Provident Fund to them. According to them, by this action, the petitioner is avoiding benefits under the Social Security Scheme to the workers. It is their case that the second respondent under Section 7-A of EPF & MP Act, 1952 has rightly held that the so called apprentices were infact regular employees of the petitioner and according to them, the second respondent has rightly determined the provident fund payable by the petitioner at Rs.7,51,779.35. It is also their case that the first respondent has also rightly confirmed the order of the second respondent by its order dated 29.03.2005 passed under Section 7-I of the EPF & MP Act, 1952. 14. Heard, Mr.K.Parthiban, learned counsel for the petitioner and Mr.R.Thirunavukarasu, learned counsel for the respondents. 15. The IESO Act, 1946 requires the industrial establishments to formally define conditions of employment of the employees working under them. 14. Heard, Mr.K.Parthiban, learned counsel for the petitioner and Mr.R.Thirunavukarasu, learned counsel for the respondents. 15. The IESO Act, 1946 requires the industrial establishments to formally define conditions of employment of the employees working under them. Under section 3 of the IESO Act, 1946, within six months from the date on which the Act became applicable to an industrial establishment, the employer shall submit five copies of the draft standing orders proposed by him for adoption in his industrial establishment to the certifying officer. Thereafter, if the employer has fulfilled the requirements, the draft standing orders shall be certified under Section 5 of the IESO Act, 1946. In the case on hand, even though the petitioner establishment as per their own statement has set up their unit in February 1994 itself, they have not adhered to the mandatory statutory requirement prescribed under Section 3 of the IESO Act, 1946 by submitting draft standing orders to the respondents for certification. The draft standing orders required to be submitted under Section 3 of the IESO Act, 1946 should furnish the details of the employees as set out in the schedule to the IESO Act, 1946. The schedule gives the details of the classification of workmen namely Permanent, Temporary, Apprentice, probationer and badli. 16. One of the points for consideration in this writ petition is whether the employer can take protection under the Model Standing Orders even without adhering to the mandatory statutory requirement under Section 3 of the IESO Act, 1946 of submitting draft standing orders within six months from the date of commencement of the business for certification. Admittedly in the case on hand, the petitioner has not submitted draft standing orders for certification as prescribed under Section 3 of the IESO Act, 1946. The IESO Act, 1946 is a welfare legislation to protect and safeguard the interest of workers. The preamble of the IESO Act, 1946 makes it clear that it is impediment upon every employer to define with sufficient precision the conditions of employment of their workers and make those conditions known to the workmen employed by them. Only with that object in mind, the legislature thought it fit to enact the IESO Act, 1946. It is only to protect and safeguard the interest of the workers. 17. The IESO Act, 1946 comprises of fifteen sections and one Schedule. Only with that object in mind, the legislature thought it fit to enact the IESO Act, 1946. It is only to protect and safeguard the interest of the workers. 17. The IESO Act, 1946 comprises of fifteen sections and one Schedule. As seen from all the sections in IESO Act, 1946, it is very clear that those sections are intended only to protect the interest of the workers and not to protect an employer who has violated Section 3 of the Act by not submitting draft standing orders for certification. Eventhough, Section 12A of the IESO Act, 1946 stipulates that the prescribed model standing orders is applicable pending certification of the draft standing orders by the certifying officer, Section 12A of the IESO Act, 1946 can be applied only by a worker to enure to his benefit and not by an employer who is seeking exemption from payment of Employees’ Provident Fund Contributions to their employees/workers which is detrimental to their interest. Section 12A of the IESO Act, 1946 is meant to protect the employees/workers when there is no certified standing orders in place and is not meant to protect an employer who seeks to get exemption from payment of Employees’ Provident Fund Contributions to their employees/workers. If that is allowed, the object of the IESO Act, 1946 will get defeated. The explicit inclusion of the application of provisions of Section 9, 13(2) and 13-A of the IESO Act, 1946 and the exclusion of Section 13 of the IESO Act, 1946 (that is provisions relating to penalties and procedures) in the non-obstante clause of Section 12-A together with its very caption indicates by implication that Section 12-A does not permit an employer to circumvent by simply adopting the model standing orders indefinitely and does not absolve the employer of his statutory requirement to comply with Section 3(1), (2) and (3) of the IESO Act, 1946 by submitting draft standing order for certification. 18. The petitioner establishment has failed to adhere to the mandatory requirement of submitting the draft standing orders under Section 3 of the IESO Act, 1946 and obtaining certification under Section 5 of the said Act. 18. The petitioner establishment has failed to adhere to the mandatory requirement of submitting the draft standing orders under Section 3 of the IESO Act, 1946 and obtaining certification under Section 5 of the said Act. The model standing orders can be made applicable only for a limited period i.e., for the interregnum period between the date of submission of draft Standing Orders under Section 3 of the IESO Act, 1946 and the date of Certification of the standing orders under Section 5 of the said Act, 1946. In the case on hand, when the petitioner who has not complied with the statutory requirements for certification of the draft standing orders as prescribed under Section 3 of the IESO Act, 1946, they are legally barred from taking protection under Section 12-A of the IESO Act, 1946 for adoption of model standing orders to circumvent the payment of Employees’ Provident Fund Contributions to their employees/workers. 19. As observed earlier, Section 12-A of the IESO Act, 1946 is applicable to the employers only when they have already applied for certification of the draft standing orders under Section 3 of the IESO Act, 1946 and when they have not done so, they are not entitled to adopt the model standing orders. The model standing orders can only enure to the benefit of employees/workers, when the employer has not applied for certification of the draft standing orders under Section 3 of the IESO Act, 1946 or the employer has applied for certification and the certification is awaited. When the employer deliberately has not applied for certification of the draft standing orders under Section 3 of the IESO Act, 1946, they cannot seek benefit of the model standing orders as per Section 12-A of the IESO Act, 1946 as it is a welfare legislation to protect and safeguard the interest of the employees/workers alone. 20. Admittedly, the petitioner did not produce all the agreements relating to engagement of apprentices in the earlier round of hearing before the second respondent under Section 7-A of the EPF & MP Act, 1952 as well as before the Appellate Authority under section 7-I of the EPF & MP Act, 1952. 20. Admittedly, the petitioner did not produce all the agreements relating to engagement of apprentices in the earlier round of hearing before the second respondent under Section 7-A of the EPF & MP Act, 1952 as well as before the Appellate Authority under section 7-I of the EPF & MP Act, 1952. The documents relied upon by the petitioner, to substantiate their case, were produced before the second respondent, only after the order of remand passed by the first respondent in the appeal filed under Section 7-I of the EPF & MP Act, 1952. 21. The second respondent after considering the documents which were placed before him by the petitioner establishment after the Appellate authority remanded the matter for fresh consideration has rightly rejected the contention of the petitioner establishment that there were 256 employees, out of which, 200 were apprentices and only 56 were confirmed employees. The second respondent while passing the order dated 11.02.2000 under Section 7-A of the EPF & MP Act, 1952 has noticed the following from the various documents produced by the petitioner establishment: “1. The training to the so called apprentices is imparted by M/s.Harita Consultancy Services Ltd., who were paid meagre sum of Rs.7,000/- during 1993 and presently Rs.17,250/- per month for imparting training. As the amount offered for training, large number of employees is very less, it has to be presumed that these programmes made by M/s.Harita Consultancy Services Ltd., could be only in the form of guest lectures etc., intended for all categories. 2. There is no certified Standing Orders for the establishment. 3. There is no training programme syllabus for imparting training to the so called apprentices. 4. The agreement for apprenticeship training was entered into longback on 04.10.1993 in respect of certain employees whereas the training syllabus was formulated only on 06.09.1999. 5. As per the agreement for apprenticeship the trainees are not entitled for any other allowances or concession apart from the stipend. But on a review of the statement of stipend during January 1997 it was noticed that these persons have contributed to the Labour Welfare Fund also. 6. The agreement provides for the conditions that as trainees/apprentices they should follow the work norms of the mill, shall follow the conditions and procedures to fulfill the jobs entrusted to them, shall be ready to accept any alternative work, shall not resort to strike etc., 7. 6. The agreement provides for the conditions that as trainees/apprentices they should follow the work norms of the mill, shall follow the conditions and procedures to fulfill the jobs entrusted to them, shall be ready to accept any alternative work, shall not resort to strike etc., 7. These conditions are more suitable for a worker than a trainee. The main focus of the agreement is also on the work which should result in more production. The issue of teaching or learning is not spelt out in the agreement. 8. All workers were regarded as apprentices during the period from January, 1994 to March, 1995. In the month of April, 1995 to December, 1996, 4% of the apprentices were considered as employees. At the relevant time of coverage in February, 1997, 282 persons were treated as apprentices out of 374 work force.” 22. The second respondent has also noticed that the number of apprentices engaged by the petitioner far exceeds the number of regular employees. 23. After analysing the evidence available on record, the second respondent in its order dated 11.02.2000 has come to the conclusion that the petitioner management has tried to take advantage of the classification made in the Model Standing Orders treating of persons as apprentices with the only objective of denying membership to provident fund in respect of the employees by artificially distinguishing them as apprentices. The second respondent has held that by this action, the petitioner establishment is not only avoiding benefits under the Social Security Scheme of workers but also for saving huge amounts for themselves. The second respondent has rightly held that it is obligatory and mandatory on the part of the petitioner establishment to frame Standing orders and send it for certification to the competent authority within six months. 24. Since the petitioner establishment failed to establish that the so called apprentices were indeed real apprentices, the second respondent rightly rejected the contentions of the petitioner establishment and held that the petitioner management is liable to pay provident fund for the so called apprentices also and determined the amount payable by the petitioner management at Rs.7,51,779.35. The Appellate authority under Section 7-I of the EPF & MP Act, 1952 by its order dated 29.03.2005 has confirmed the order of the second respondent dated 11.02.2000 by rightly dismissing the appeal filed by the petitioner under Section 7-I of the EPF & MP Act, 1952. The Appellate authority under Section 7-I of the EPF & MP Act, 1952 by its order dated 29.03.2005 has confirmed the order of the second respondent dated 11.02.2000 by rightly dismissing the appeal filed by the petitioner under Section 7-I of the EPF & MP Act, 1952. 25. The judgments relied upon by the learned counsel for the petitioner namely (a) Hon’ble Supreme Court Judgment in the case of Regional Provident Fund Commissioner, Mangalore vs. M/s. Central Arecanut & Coca Marketing And Processing Coop. Ltd., Mangalore in Civil Appeal No.978 of 2000 reported in (2006) 2 SCC 381 and (b) a Single Bench Judgment of the Madras High Court in the case of T.Anantha Krishnan vs. The Management of Madras Purasawalkam Hindu Janopakara Saswatha Nidhi or the Permanent General Benefit Fund Limited reported in 2011 (1) LNN 267 (Mad.) all pertain to cases where the employer had applied for certification of the draft standing orders under Section 3 of the IESO Act, 1946 and pending certification, they sought for application of the model standing orders. In the case on hand, admittedly, the petitioner has not applied for certification of the draft standing orders and this being the case, the judgments relied upon by the learned counsel for the petitioner will not apply to the facts of the instant case. 26. For the foregoing reasons, this court is of the considered view that the petitioner has violated the provisions of IESO Act, 1946 by not adhering to the statutory requirements contained therein and is not entitled to rely upon the model standing orders to circumvent the payment of Employees’ Provident Fund Contribution to their employees/workers. Only based on the evidence available on record, the respondents under the impugned orders have held that the so called apprentices are infact regular employees/workers of the petitioner. 27. For the foregoing reasons, there is no merit in this writ petition. Accordingly, this writ petition is dismissed no costs. Consequently, connected miscellaneous petition is closed.