Dismissed

M/S. Indo American Hospital v. the Assistant Provident Funds Commissioner

Kerala HC13 Jul 2017WP(C)/16329/2012

Case brief

AI extract

What is this about?

This writ petition challenged an order requiring a hospital to pay provident fund contributions for trainees. The court held that since the trainees were not excluded under the Apprentices Act or standing orders, they fall within the definition of 'employee', dismissing the petition.

What did the court decide?

The writ petition was dismissed without any direction were to allow the request, the petitioner was directed to comply with the administrative order.

M/S. Indo American Hospital Vs the Assistant… — Pension and Retirement Benefits | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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THURSDAY, THE 13TH DAY OF JULY 2017/22ND ASHADHA, 1939

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WP(C).No. 16329 of 2012 (M)

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PETITIONER:

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M/S.INDO AMERICAN HOSPITAL, BRAIN & SPINE CENTRE, CHEMANAKIRI NEAR VAIKOM, KOTTAYAM-686143, REPRESENTED BY ITS MANAGING DIRECTOR, COL. RAJIV MANALI.

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BY ADV. SRI.T.A.SHAJI

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RESPONDENTS:

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1. THE ASSISTANT PROVIDENT FUNDS COMMISSIONER, EMPLOYEES PROVIDENT FUNDS ORGANIZATION, SUB REGIONAL OFFICE, CHALAKKUZHY BUILDINGS, C.M.S. COLLEGE ROAD, KOTTAYAM-686001.

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2. UNION OF INDIA,REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF LABOUR, GOVT. OF INDIA, NEW DELHI, PIN - 110 001.

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3. THE BRANCH MANAGER, STATE BANK OF TRAVANCORE, KULASEKHARAMANGALAM BRANCH, VAIKOM, KOTTAYAM, PIN - 686 608.

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R1 BY SRI.JOY THATTIL ITOOP, SC

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R2 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R3 BY SRI.K.S.DILIP

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 16329 of 2012 (M)

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APPENDIX

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PETITIONERS’ EXHIBITS:

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EXT.P1:	TRUE COPY OF THE MEMORANDUM OF ASSOCIATION DATED 27-9-1993.
EXT.P2:	TRUE COPY OF THE CHALAN EVIDENCING THE REMITTANCE OF PAYMENT OF PF CONTRIBUTION FOR THE MONTH OF DECEMBER 2011 ALONG WITH THE LIST OF EMPLOYEES.
EXT.P3:	TRUE COPY OF THE NOTICE DATED 15-1-2012 ISSUED BY 1ST RESPONDENT.
EXT.P4:	TRUE COPY OF THE WRITTEN SUBMISSION DATED 20-1-2012 SUBMITTED BY THE PETITIONER.
EXT.P5:	TRUE COPY OF THE PROCEEDINGS OF 1ST RESPONDENT DATED 22-3-2012.
EXT.P6:	TRUE COPY OF THE APPOINTMENT ORDER DATED 29-11-11 ISSUED TO ONE OF THE TRAINEES.
EXT.P7:	TRUE COPY OF THE REVIEW PETITION DATED 23-4-2012 SUBMITTED BY THE PETITIONER.
EXT.P8:	TRUE COPY OF THE ORDER DATED 13-6-12 OF THE 1ST RESPONDENT IN THE REVIEW PETITION.
EXT.P9:	TRUE COPY OF THE ORDER DATED 9-7-12 BY THE 1ST RESPONDENT ISSUED TO THE 3RD RESPONDENT.

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RESPONDENTS' EXHIBITS: NIL.

//TRUE COPY//

P.S. TO JUDGE

mbr/

A.MUHAMED MUSTAQUE, J. =========================

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W.P.(C).No.16329/2012

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J U D G M E N T

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The petitioner is a hospital covered under the Employees' Provident Funds & Miscellaneous Provisions Act, 1952 (for short, the “Provident Fund Act”). They challenge an order directing to pay contribution in respect of trainees engaged by them in the hospital. The stand of the hospital is that they are not liable to pay contribution in respect of trainees as they were only given scholarship and they are not 'employees' in terms of Section 2(f) of the Provident Fund Act.

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The short issue is whether the trainees employed by the petitioner would come within the ambit of the 'employee' as defined under the Provident Fund Act.

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An 'employee' is defined under Section 2(f) as follows:

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“2(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 --

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 WPC 16329/2012

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-:2:-

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(i) employed by or through a contractor in or in connection with the work of the establishment;

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(ii) engaged as an apprentice, not being an apprentice engaged under the Apprentices Act 1961 (52 of 1961), or under the standing orders of the establishment.”

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Admittedly, there are 34 trainees. According to the petitioner, they were paid only scholarship. The scholarship in normal sense is understood as a reward given to a scholar in pursuit of education or other intellectual venture. Whatever term may be used in this context, it has only to be understood as remuneration paid. The hospital is not a place where a formal education is provided. Admittedly, these persons are qualified nurses.

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It is to be noted nowhere in the definition of the “employee” a trainee is excluded. On the other hand, the definition as above clearly indicate that an employee engaged through a contractor in respect of the work of an establishment is also covered by the definition of the “employee”. The only exclusion as referred in the definition is an apprentice engaged under the Apprentices Act 1961, or under the standing orders of the establishment. It is not referred therein that the trainees should be excluded.

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The learned Senior Counsel for the petitioner relied upon the

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judgment of the Hon'ble Supreme Court in Regional Provident Fund

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 WPC 16329/2012

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-:3:-

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Commissioner, Mangalore v. Central Arecanut & Coca Marketing and Processing Coop Ltd., Mangalore [(2006) 2 SCC 381] and would argue that trainees will have to be excluded from the purview of “employee”.

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The judgment relied on by the learned Senior Counsel has no relevance in the case. It is to be noted that an apprentice would also fall within the meaning of an employee unless he falls within the meaning of apprentice as referred under the Apprentices Act 1961 or under the standing orders of the establishment. If the trainees are apprentices and they can be treated as apprentices under the Apprentices Act 1961 or under the standing orders of the establishment, certainly, they could have been excluded. But, nothing was placed before the authority to show that they could be treated as apprentices coming within the meaning of the Apprentices Act or under the standing orders of the establishment. Therefore, I do not find any scope for interfering with the impugned order. Accordingly, the writ petition is dismissed.

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Sd/-

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A.MUHAMED MUSTAQUE, JUDGE

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M/S. Indo American Hospital v. the Assistant Provident Funds Commissioner

Case brief

What is this about?

What did the court decide?

M/S. Indo American Hospital v. the Assistant Provident Funds Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

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