Kerala High Court
Lakeshore Hospital And Research Centre ... vs Employees Provident Fund Appellate ... on 4 June, 2010
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
THURSDAY, THE 6TH DAY OF JUNE 2013/16TH JYAISHTA 1935
WP(C).No. 13476 of 2013 (H)
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PETITIONER(S):
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LAKESHORE HOSPITAL AND RESEARCH CENTRE LTD,
MARADU, NETTOOR P.O, KOCHI 40
REPRESENTED BY ITS COMPANY SECRETRY
MR.R MURALEEDHARAN
BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.GOPINATH MENON
SRI.P.BENNY THOMAS
SRI.K.JOHN MATHAI
RESPONDENT(S):
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1. EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL,
SCOPE MINAR, CORE II, 4TH FLOOR
LAXMI NAGAR DISTRICT CENTRE, LAXMI NAGAR
NEW DLEHI 110 092
2. REGIONAL PROVIDENT FUND COMMISSIONER,
EMPLOYEES' PROVIDENT FUND ORGANIZATION,
SUB REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN
KALOOR, KOCHI 682 017
R2 BY ADVS. DR.S.GOPAKUMARAN NAIR (SR.)
SRI.A.RAJASIMHAN,SC,EPF ORGANISATION
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 13476 of 2013 (H)
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APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1: COPY OF THE CERTIFICATE DATED 04.06.2010 ISSUED BY
BHARAT SEVAK SAMAJ, PROMOTED BY GOVERNMENT OF INDIA
AUTHORIZING THE HOSPITAL AS TRAINING CENTRE FOR THE
STUDENTS UNDERGOING COURSES.
EXHIBIT P2: COPY OF THE ORDER DATED 03.12.2012 PASSED BY THE
2ND RESPONDENT.
EXHIBIT P3: COPY OF THE JUDGMENT DATED 13.02.2013 IN W.P.(C)
NO.31039 OF 2012 PASSED BY THIS HON'BLE COURT.
EXHIBIT P4: COPY OF THE APPEAL MEMORANDUM (WITHOUT ANNEXURES)
DATED 25.03.2013 FILED BY THE PETITIONER BEFORE THE
1ST RESPONDENT.
EXHIBIT P5: COPY OF THE ORDER DATED 10.04.2013 IN A.T.A. NO.218
(7) 2013 PASSED BY THE 1ST RESPONDENT.
EXHIBIT P6: COPY OF THE STATEMENT SHOWING THE DETAILS OF THE
STIPEND PAID TO THE TRAINEES DURING THE PERIOD
4/2010 TO 12/2011.
RESPONDENT(S)' EXHIBITS : NIL
/TRUE COPY/
P. A. TO JUDGE
Pn
C.K. ABDUL REHIM, J.
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W.P.(C). No. 13476 of 2013
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Dated this the 6th day of June, 2013
JUDGMENT
Challenge is against Exhibit P5 order passed by the 1st respondent tribunal under Section 7(O) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 ('the Act' for short). The 2nd respondent had issued an order determining the contributions payable by the petitioner under Section 7A of the Act (Exhibit P2). The petitioner had earlier approached this court challenging Exhibit P2 on the ground that, before determining the contributions payable, the 2nd respondent ought to have conducted an enquiry as contemplated under Para 26B of the relevant Scheme in order to adjudicate the dispute as to whether the persons claimed as "trainees" are employees drawing salary. In Exhibit P3 judgment this court observed that the matter can be adjudicated in an appeal under Section 7(1) of the Act. It was made clear that, grounds available to the petitioner with respect to enquiry under Para 26B of the Scheme can W.P.(C). No. 13476 of 2013 -2- also be incorporated in the appeal and the appellate tribunal was directed to advert to all such contentions. This court further observed that the petitioner is at liberty to seek waiver of the condition for pre-deposit, under Section 7(O) of the Act, in view of the peculiar circumstances of the case.
2. Exhibit P4 is the appeal filed consequent to judgment of this court. Along with the appeal the petitioner had failed an application under Section 7(O) of the Act seeking waiver of the requisite pre-deposit. Exhibit P5 is the order passed by the tribunal on the said application. The tribunal directed deposit of a sum equivalent to 50% of the determined amount. Operation of Exhibit P2 order was stayed subject to such deposit. It is challenging Exhibit P5 that this writ petition is filed.
3. Contention of the petitioner is that, despite specific directions issued by this court in Exhibit P3 judgment to consider the waiver of pre-deposit on the basis of the special circumstances existing, the tribunal had insisted for payment of 50%, which according to the W.P.(C). No. 13476 of 2013 -3- petitioner is quite unjustifiable and unreasonable. I am of the considered opinion that the matter of granting waiver as contemplated under Section 7(O) is purely a matter coming within discretionary jurisdiction of the statutory tribunal. The petitioner cannot claim total waiver of the amounts in dispute, when the statute insists upon pre- deposit of 75% of the amounts determined under the impugned order. Going by the provisions of Section 7(O) under normal circumstances pre-deposit of the 75% is the rule, and any deduction/waiver of such deposit is only an exemption. The tribunal cannot be blamed in exercising its discretion in limiting the waiver at 25% of the amounts due, considering the special circumstances prevailing. At any rate, an interference in exercise of jurisdiction vested on this court under Article 226, is not at all warranted in the matter of an interim order issued by the statutory tribunal, when such order be termed as one issued without application of mind or without advertence to the grounds raised. Hence the challenge against Exhibit P5 fails.
W.P.(C). No. 13476 of 2013 -4-
4. Learned counsel for the petitioner raises a further contention that the amount determined under Exhibit P2 includes the entire amount of stipend paid by the petitioner. Even assuming that the amount of stipend paid should be treated as salary and that the trainees to whom such amounts were paid are to be treated as employees, persons who were drawing monthly emoluments at a rate more than Rs.6,500/- per month at the time of their joining in service, will not come within the purview of the Act. Under such circumstances, even if the findings entered by the 2nd respondent is sustained the petitioner will not be liable for payment of contributions with respect to those persons who were drawing monthly emoluments above Rs.6,500/- at the time of their joining in service. Therefore, it is requested that a direction may be issued to the 2nd respondent to make a recalculation for the purpose of computing 50% of the amount which is liable to be realised on the basis of Exhibit P5.
5. Standing counsel appearing for the respondent W.P.(C). No. 13476 of 2013 -5- is not in a position to dispute the position that, any employee drawing monthly salary at more than Rs.6,500/- at the time of joining in service will not come within the purview of the Act, and the employer is not liable for payment of any contributions with respect to such employees.
6. Therefore, while dismissing the writ petition I make it clear that, while computing 50% of the amount ordered to be paid as per Exhibit P5, contributions with respect to persons who were drawing monthly emoluments of more than Rs.6,500/- per month at the time of their joining in service, should be excluded. In order to facilitate such computation the 2nd respondent shall furnish a statement before the tribunal. It is made clear that the above direction is issued only as an interim measure and this will not prejudice any contentions of the parties with respect to sustainability of the order of determination.
7. The period stipulated for payment is extended till 30.06.2013. The calculation statement as directed W.P.(C). No. 13476 of 2013 -6- above, shall be furnished by the 2nd respondent before the tribunal with copies served on the petitioner, within a period of one week from the date of receipt of a copy of this judgment.
C.K. ABDUL REHIM, JUDGE Pn