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PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL &
THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 8TH DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 WA NO. 1708 OF 2019 AGAINST THE JUDGMENT DATED 07/06/2018 IN WP(C)NO.
13827/2016 OF HIGH COURT OF KERALA APPELLANT/1ST RESPONDENT:
EMPLOYEES' PROVIDENT FUND ORGANIZATION, REPRESENTED BY ASSISTANT PROVIDENT FUND COMMISSIONER(COMPLIANCE DIVISION), BHAVISHYANIDHI, P.B.NO.1806, ERANHIPALAM P.O., KOZHIKODE - 673 006 BY ADV ABRAHAM P.MEACHINKARA RESPONDENTS/PETITIONER/RESPONDENTS:
1 MOULANA HOSPITAL, P.B.NO.31, OOTTY ROAD, PERINTHALMANNA, MALAPPURAM DISTRICT -679 322, REPRESENTED BY MANAGING PARTNER N.ABDUL RASHEED.
2 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF LABOUR AND EMPLOYMENT, SASTHRI BHAVAN, NEW DELHI -110 001.
BY ADVS.
K.ANAND HUSSAIN KOYA VALIYAVEEDAKATH THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON
08.02.2024, ALONG WITH WA.469/2023, 1633/2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL &
THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 8TH DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 WA NO. 469 OF 2023 AGAINST THE JUDGMENT DATED 11/10/2022 IN WP(C)NO.14016/2010 OF HIGH COURT OF KERALA APPELLANTS/RESPONDENTS 1 TO 3:
1 EMPLOYEES PROVIDENT FUND ORGANIZATION, SUB REGIONAL OFFICE, BAVISHYA NIDI BHAVAN, KALOOR, COCHIN, PIN – 682 017.
2 REGIONAL PROVIDENT FUND COMMISSIONER, ERNAKULAM, PIN – 682 017.
3 ASSISTANT PROVIDENT FUND COMMISSIONER, KOCHI, PIN – 682 017.
BY ADV SAJEEV KUMAR K.GOPAL RESPONDENTS/PETITIONER/4TH RESPONDENT:
1 LISIE HOSPITAL, ERNAKULAM, REPRESENTED BY ITS DIRECTOR, FR.MATHEW MUTTAMTHOTTY, PIN – 682 017.
2 REGISTRAR, KERALA NURSES' AND MIDWIVES' COUNCIL, RED CROSS ROAD, THIRUVANANTHAPUAM, PIN – 695 037.
BY ADV N. RAGHURAJ
08.02.2024, ALONG WITH WA.1708/2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL &
THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 8TH DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 WA NO. 1633 OF 2019 AGAINST THE JUDGMENT DATED 07/06/2018 IN WP(C)NO.15477/2014 OF HIGH COURT OF KERALA APPELLANT/2ND RESPONDENT:
EMPLOYEES' PROVIDENT FUND ORGANIZATION, REPRESENTED BY ASSISTANT PROVIDENT FUND COMMISSIONER (COMPLIANCE DIVISION), BHAVISHYANIDHI, P.B NO.1806, ERANHIPALAM P.O., KOZHIKODE - 673 006.
BY ADV DR.ABRAHAM P.MEACHINKARA, SC, EPF ORG.
RESPONDENTS/PETITIONER/1ST RESPONDENT:
1 M/S.MALABAR HOSPITALS (P) LTD., RAJIV GANDHI BYPASS ROAD, KARUVAMNARAM, MANJERI, MALAPPURAM DISTRICT - 676 121, REPRESENTED BY MANAGING PARTNER DR. A. MOIDEENKUTTY.
2 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF LABOUR AND EMPLOYMENT, SASTHRI BHAVAN, NEW DELHI - 110 001.
BY ADVS.SRI.K.ANAND CENTRAL GOVERNMENT COUNSEL(B/O)
SHRI.RAJESH O.N.
SRI.HUSSAIN KOYA VALIYAVEEDAKATH
08.02.2024, ALONG WITH WA.1708/2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL &
THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 8TH DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 WA NO. 1778 OF 2019 AGAINST THE JUDGMENT DATED 07/06/2018 IN WP(C)NO.34620/2016 OF HIGH COURT OF KERALA APPELLANT/1ST RESPONDENT:
EMPLOYEES' PROVIDENT FUND ORGANIZATION, REPRESENTED BY ASSISTANT PROVIDENT FUND COMMISSIONER (COMPLIANCE DIVISION), BHAVISHYANIDHI, P.B. NO.1806, ERANHIPALAM P.O., KOZHIKODE – 673 006.
BY ADV DR.ABRAHAM P.MEACHINKARA, SC, EPF ORG.
RESPONDENTS/PETITIONER/RESPONDENTS:
1 M/S. MALABAR HOSPITALS (P) LTD., RAJIV GANDHI BYPASS ROAD, KARUVAMNARAM, MANJERI, MALAPPURAM DISTRICT-676 121, REPRESENTED BY MANAGER PARTNER DR. A.MOIDEENKUTTY.
2 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF LABOUR AND EMPLOYMENT, SASTHRI BHAVAN,NEW DELHI-110 001.
BY ADVS.
SRI.K.ANAND HUSSAIN KOYA VALIYAVEEDAKATH SHRI.RAJESH O.N.
08.02.2024, ALONG WITH WA.1708/2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL &
THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 8TH DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 WA NO. 2390 OF 2017 AGAINST THE JUDGMENT DATED 13/07/2017 IN WP(C)NO.16329/2012 OF HIGH COURT OF KERALA APPELLANT/PETITIONER:
M/S INDO AMERICAN HOSPITAL, BRAIN& SPINE CENTRE, CHEMANAKIRI NEAR VAIKOM, KOTTAYAM, PIN - 686 143, REPRESENTED BY ITS MANAGING DIRECTOR COL.RAJIV MANALI.
BY ADVS.SRI.T.A.SHAJI (SR.)
SRI.ATHUL SHAJI KUM.NAIR ANUJA GOPALAN SRI.JOLLY JOHN RESPONDENTS/RESPONDENTS IN THE W.P.(C):
1 ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES' PROVIDENT FUNDS ORGANIZATION, SUB REGIONAL OFFICE, CHALAKKUZHY BUILDINGS, C.M.S COLLEGE ROAD, KOTTAYAM - 686 001.
2 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF LABOUR, GOVT. OF INDIA, NEW DELHI - 110 001.
3 THE BRANCH MANAGER, STATE BANK OF TRAVANCORE, KULASEKHARAMANGALAM BRANCH, VAIKOM, KOTTAYAM, PIN-686 608.
BY ADVS.
SRI.JOY THATTIL ITOOP, SC, EPF ORGANISA SRI.K.SHRI HARI RAO, CGC SRI.PUSHPARAJAN KODOTH SRI.K.S.DILEEP(B/O)
ADV.T.SETHUMADHAVAN(SR.)
ADV.K.JAYESH MOHANKUMAR
08.02.2024, ALONG WITH WA.1708/2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL &
THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 8TH DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 WA NO. 2505 OF 2018 AGAINST THE JUDGMENT DATED 07/06/2018 IN WP(C) NO.1852/2011 OF HIGH COURT OF KERALA APPELLANT/2ND RESPONDENT:
THE REGIONAL PROVIDENT FUND COMMISSIONER II, EMPLOYEES PROVIDENT FUND ORGANISATION, SUB REGIONAL OFFICE, OLD MUNICIPAL OFFICE BUILDING, KOLLAM-691 001.
BY ADV PIRAPPANCODE V.S.SUDHIR RESPONDENTS/PETITIONER & 1ST RESPONDENT:
1 HOLY CROSS HOSPITAL, KOTTIYAM-691 571, KOLLAM DISTRICT, REPRESENTED BY THE ADMINISTRATOR, SR.FIDES THOTTAN.
2 EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, CORE-2,4TH FLOOR, SCOPE MINAR, LAXMI NAGAR, DIST.CENTRE, DELHI-110 092.
08.02.2024, ALONG WITH WA.1708/2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL &
THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 8TH DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 WA NO. 2464 OF 2018 AGAINST THE JUDGMENT DATED 07/06/2018 IN WP(C)NO.14751/2017 OF HIGH COURT OF KERALA APPELLANT/RESPONDENTS:
1 THE REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, BHAVISHYANIDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004.
2 THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, REGIONAL OFFICE, THIRUVANANTHAPURAM.
BY ADV PIRAPPANCODE V.S.SUDHIR RESPONDENT/PETITIONER:
SIVAGIRI SREE NARAYANA MEDICAL MISSION HOSPITAL, VARKALA, THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY THE SECRETARY - 695 012.
BY ADVS.
V. JAYAPRADEEP LILIN LAL(K/114/2021)
SAJEENA ABDU T.K.(K/476/2022)
08.02.2024, ALONG WITH WA.1708/2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AMIT RAWAL & C.S.SUDHA, JJ.
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Writ Appeal Nos. 2390/2017, 2464/2018, 2505/2018, 1633/2019, 1708/2019, 1778/2019 & 469/2023 -------------------------------------------------------------------------
Dated this the 08th day of February, 2024
J U D G M E N T
Amit Rawal, J.
Six hospitals, namely, M/s.Indo American Hospital, Holy Cross Hospital, Sivagiri Sree Narayana Medical Mission Hospital, M/s.Malabar Hospitals (P) Ltd., Moulana Hospital and Lisie Hospital, except two, that is Holy Cross Hospital and Sivagiri Sree Narayana Medical Mission Hospital, who are indulging into education were confronted with proceedings under the Employees Provident Funds and Miscellaneous Provisions, 1952 (hereinafter called, the 1952 Act) on the allegation that, on the basis of the report of the inspection conducted by the Enforcement Officer, the contribution of the entire number of staff working in the hospital was not being paid, except a few and therefore exigible to the provisions of the 1952 Act and consequential proceedings. The Enforcement Officer as required under the Act is competent to inspect the record by visiting the premises of the establishments to ascertain whether the staff is permanent or a trainee, contractual or bonded etc. for, as per the definition of Section 2(f) 'employee' means an employee employed directly or indirectly in any establishment including the apprentice but not apprentice appointed under the Apprentice Act, 1961 or model Standing Orders.
2. Management of the hospitals purported to have supplied materials and made available the entire documents to the Enforcement Officer by justifying the cause of not submitting the contribution of few members of the staff, who, according to them, were either training staff, bonded worker, contractual or trainees.
3. The Enforcement Officer dissatisfied with the reply submitted a report, resulted into proceedings under Section 7A of the Act. The Assessing Officer conducted a detailed hearing and provided an opportunity of hearing as per the provisions of sub-section (2) of Section 7A of the Act. The representatives of the Hospitals raised multi-fold grounds for non applicability of the provisions of the 1952 Act, which are summarised hereunder :
1) Few of the hospitals are also imparting the education and the students who have passed the final year examinations are mandatorily required to undergo one year training and would not be falling in the definition of permanent employee.
2) The terms and conditions of the appointment letters also reveal that they were paid stipend which is not equivalent to the wages given to the other regular set of employees and appointment is confined to three months; on satisfaction of the work, they would be confirmed and absorbed in the establishment. It is only for those set of employees, the employer would be obliged to make the contribution under the provisions of the 1952 Act. 4. The Assessing Officer after having accepted the request for re-
inspection of certain establishments, came to the finding that the workers working under the establishment were infact regular ones and not temporary apprentices appointed under the standing orders, raised the demand.
5. The aforementioned orders were impugned before the Commissioner but of no avail. The matter was taken to this Court under Article 226 of the Constitution of India.
6. Learned Single Judge on analysis of the rival contentions and the case law on record, particularly the judgment of the Supreme Court in Regional Provident Fund Commissioner, Mangalore v. Central Arecanut & Coca Marketing and Processing Coop. Ltd., Mangalore reported in (2006)2 SCC 381 allowed the writ petition. It is in that background the Employees' Provident Fund Organization is before us in this intra court appeals.
7. Respective counsels representing the EPF in different matters have in unison raised the following submissions :
i) The entire gamut and genesis of the judgment of the learned Single Bench is based on a premise that all the hospitals are indulging into education and therefore the final year students who are mandatorily required to give undertaking, would not fall within the definition of Section 2(ii)(f) of the Payment of Wages Act ; whereas each and ev
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