Dismissed

Dr.Joyce Mammen v. Regional Provident Fund Commissioner

Kerala HC23 Jul 2013WA/177/2009

Case brief

AI extract

What is this about?

This appeal challenges the rejection of a claim for infancy protection under the Provident Fund Act. The appellant argued that taking over a defunct hospital on lease constituted a new establishment. The Court held that mere change of management or revival of an existing entity does not reset the infancy period.

What did the court decide?

None granted; the writ appeal was dismissed against the order declining reply to the infants protection claim.

Dr.Joyce Mammen Vs Regional Provident Fund… — Pension and Retirement Benefits | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR &

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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TUESDAY, THE 23RD DAY OF JULY 2013/1ST SRAVANA, 1935

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WA.No. 177 of 2009 ( ) IN OP.5347/2000

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OP 5347/2000 of HIGH COURT OF KERALA DATED 22/5/2008

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APPELLANT(S)/PETITIONER:

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DR. JOYCE MAMMEN, MANAGING PARTNER, GOSPEL MEDICAL CENTRE, KALLISSERY.P.O, CHENGANNUR RESIDING AT KANDATHIL HOUSE, PUTHENCAVU, CHENGANNUR.

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BY ADV. SRI.P.RAMAKRISHNAN

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RESPONDENT(S)/RESPONDENTS:

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REGIONAL PROVIDENT FUND COMMISSIONER, BHAVISHYANIDHI BHAVANAM, P.B. NO. 1016, PATTOM THIRUVANANTHAPURAM

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UNION OF INDIA, MINISTRY OF LABOUR, REPRESENTED BY ITS SECRETARY, CENTRAL SECRETARIAT NEW DELHI.

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THAHSILDAR, CHENGANNUR.

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REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION SUB REGIONAL OFFICE, 36/685 A, BHAVISHYANIDHI BHAVAN P.B. NO. 1895, KALOOR, KOCHI-17.

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R1 & R4 BY ADV. SRI.N.N. SUGUNAPALAN, SC, P.F.

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WA 177/09

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APPENDIX

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APPELLANT'S EXHIBITS:

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ANNEXURE-1: TRUE COPY OF INCOME AND EXPENDITURE STATEMENT FOR THE YEAR ENDING 31ST MARCH, 1980

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ANNEXURE-2: TRUE COPY OF BALANCE SHEET FOR THE YEAR ENDING 31ST MARCH 1980

//True copy//

PA to Judge.

uj.

MANJULA CHELLUR, C.J. &

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K.VINOD CHANDRAN,J.

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W.A.No. 177 OF 2009

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Dated this the 23^rd day of July, 2013

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JUDGMENT

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Manjula Chellur,C.J.

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Heard learned counsel for the appellant as well as the standing counsel appearing for respondents 1

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and 2.

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The entire controversy revolves round the claim made by the appellant/writ petitioner seeking benefit of infancy protection for the first five years, from 1978 to 1983, exempting her from paying contribution under the Provident Fund Act. It is not in dispute that the appellant being a partner of a firm which started a hospital by name St.Andrews Hospital took on lease the hospital run in the building belonging to St.Mary's Orthodox church. The Provident Fund Authorities brought the hospital under coverage w.e.f 30/9/1978 which became the subject matter of earlier litigation. However, the said original

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WA.177/09

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petition came to be disposed of, directing the Provident Fund Commissioner to conduct fresh enquiry as contemplated under Section 7A of the Act to ascertain whether the hospital had functioned earlier with 20 employees on the roll and if so, whether the establishment had already functioned so as to wipe out the claim of infancy protection.

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Subsequent to the disposal of the original petition, admittedly, except filing of an affidavit, the appellant did not give any further evidence on record. The Provident Fund Commissioner by virtue of second order opined that the hospital which had functioned earlier was not covered under the Act but the establishment had already completed the infancy period when the present management took over the hospital. Therefore, it is liable for coverage. This came to be challenged in O.P.5347/2000. The learned Single Judge after considering the rival contentions opined that there was no further evidence let

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WA.177/09

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in, which would change the factual situation, so far as the appellant hospital is concerned. The materials on record indicate that the church authorities handed over the building along with furniture, fixtures and equipments as

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part of the lease. At the time of such taking over, the infancy period was already over and it was not a new establishment started by the appellant. Therefore, the appellant firm is not entitled to infancy protection. Aggrieved by the same, the appellant is before us.

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According to the learned counsel appearing for the appellant, before taking over this hospital by the appellant on lease from the church authority, it was actually a defunct establishment and only after the appellant firm took over the establishment on lease in 1978 the hospital started functioning, therefore, it has to be considered as an establishment starting from 1978 onwards and first five years infancy protection must be extended to the appellant. So far as this infancy protection, prior to the

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WA.177/09

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amendment of Section 16(1) (b) it provided that the Act will not apply to an establishment employing 50 or more persons or 20 or more, but less than 50 persons until the expiry of five or three years, respectively, from the date on which the establishment is or has been, set up. In the light of the above wordings in Section 16 (1) (b) of the Act, one has to see what exactly “establishment being set up” means. It means actual functioning of the hospital having 20 persons or establishment being set up even with less than 20 persons. If it is an establishment run for ten years without employing 10 persons; but after ten years, if 10 persons are added, making the number as 20, can it still be an infancy establishment to make such establishment entitled to infancy protection. The very word infancy means beginner. Therefore, by virtue of change of hands, can the appellant be called as a new establishment? The terms of lease as discussed by the Provident Fund Commissioner in its order clearly indicate that furniture,

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fixtures and other equipments of the hospital were also taken on lease by the appellant. Except adding one or two new equipments, the entire establishment was taken over by the appellant firm and started functioning of the hospital with new management. The question remains, whether if the hospital was in existence for sometime and thereafter, it was defunct for long time, then whether the benefit of infancy protection could be extended to this appellant who took over the hospital on lease in 1978.

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The wordings used in the above Section clearly indicate the intention of the legislature to give protection to the beginners or new establishment who start their establishment with 20 persons, by way of concession such protection is extended to them. Mere change of hands or mere increase in the number of persons to 20, would not make it a new establishment for the benefit of infancy protection. The wordings, “from the date on which the establishment is or has been set up” definitely refers

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WA.177/09

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to the initial establishment and cannot refer to revival, change of management etc. Therefore, viewed from any

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angle, the argument of the appellant fails.

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Accordingly the writ appeal is dismissed.

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MANJULA CHELLUR, CHIEF JUSTICE.

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K.VINOD CHANDRAN, JUDGE.

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uj.

Dr.Joyce Mammen v. Regional Provident Fund Commissioner

Case brief

What is this about?

What did the court decide?

Dr.Joyce Mammen v. Regional Provident Fund Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

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