Malabar Medical College Hospital ... vs The Regional Provident Fund ...
2021 Latest Caselaw 4073 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR. JUSTICE A.M.BADAR

    THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                         OP(LC).No.2 OF 2021


PETITIONER:

              MALABAR MEDICAL COLLEGE HOSPITAL AND RESEARCH CENTRE
              MODAKALUR P. O., KOZHIKODE - 673323, REP. BY ITS
              CHAIRMAN MR. V. ANIL KUMAR.

              BY ADVS.
              SRI.V.B.HARI NARAYANAN
              SMT.RUBY P.PAULOSE
              SMT.SALIHA BEEVI P.A
              SMT.GAYATHRY.J

RESPONDENT:

              THE REGIONAL PROVIDENT FUND COMMISSIONER
              EMPLOYEES PROVIDENT FUND ORGANISATION, REGIONAL
              OFFICE, ERANHIPALAM P. O., KOZHIKODE - 673 006.


OTHER PRESENT:

              SRI.ABRAHAM P MEACHINKARA, SC.

     THIS OP (LABOUR COURT) HAVING COME UP FOR ADMISSION         ON
04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P(LC) No.2/2021                     2


                                JUDGMENT

Dated this the 4th day of February 2021

By this original petition, the petitioner challenges Ext.P3 order

passed by the Central Government Industrial Tribunal-cum-Labour

Court, Ernakulam.

2. It was reported to the authority appointed for

determination of money dues from the employer under the

Employees' Provident Funds & Miscellaneous Provisions Act, 1952

(EPF Act, for short) that the petitioner-establishment has defaulted

in payment of various dues under the EPF Act. Irregularities such

as evading wages for the period from August 2016 to July 2017 so

also not enrolling 196 employees under the EPF Act and non-

payment of their contribution were also reported. That is how the

authority under Section 7A of the EPF Act issued summons to the

petitioner-establishment for determination of money dues from the

petitioner-establishment under the EPF Act. Accordingly, enquiry

came to be conducted and during the course of enquiry, it was

pointed out the following facts:

a) Out of 196 non enrolled employees mentioned by

the Provident Fund Department, the petitioner-

establishment has allotted UAN to 65 of them from

01.10.2015 onwards.

b) Out of the balance 131 employees, 3 were stated

to be ex-Government employees and 1 as excluded

employee.

c) The balance 127 persons were stated to be

trainees as detailed in the Annexure out of which

26 have already left their hospital.

3. After due enquiry, the authority under Section 7A of the

EPF Act was pleased to hold that there should be clear training

scheme for persons engaged as apprentice or trainee under the

certified standing orders. The authority also found that during the

course of hearing the matter under Section 7A of the EPF Act, the

petitioner-establishment has allotted UAN to 65 employees out of

196 employees claimed to be trainees by them. With this the

authority concluded that the establishment failed to enroll

196 employees to the membership of the Fund for various spells for

the period from August 2011 to July 2017 and all those 196

persons were in fact employees as defined by Section 2(f) of the

EPF Act. Accordingly the dues came to be determined.

4. The petitioner assailed the order passed under Section 7A

of the EPF Act by filing an appeal and by the impugned order at

Ext.P3, the said appeal came to be dismissed by the learned

Presiding Officer of the Central Government Industrial Tribunal-

cum-Labour Court, Ernakulam.

5. Heard both sides. Learned counsel for the petitioner

argued that the petitioner establishment is running a hospital and it

is covered by the provisions of the Industrial Employment

(Standing Orders) Act, 1946. It is argued that there is no

requirement of framing of any training scheme as per the

provisions of the said Act and the persons who are held to be

employees were in fact trainees working with the petitioner-

establishment. It is also argued that both the authorities below

gave erroneous finding that hospitals are not covered by the

Industrial Employment (Standing Orders) Act. Learned counsel

for the petitioner relied on the judgment of the Hon'ble Supreme

Court in the matter of Regional Provident Fund Commissioner

vs. M/s.Central Arecanut and Coco Marketing & Processing

Cooperative Ltd., Mangalore reported in (2006) 2 SCC 381 and

in Sivagiri Sree Narayana Medical Mission Hospital vs.

Regional Provident Fund Commissioner reported in 2018 (4)

KLT 352. Learned counsel relying on these judgments argued that

unless and until standing orders are final, certified model standing

orders shall hold the field. Those model standing orders are

applicable to the petitioner-establishment and therefore, the

petitioner-establishment can engage trainees or apprentice. The

alleged employees as stated by the authorities under the EPF Act

were in fact apprentice and by the impugned order, the learned

Tribunal committed grave error to hold that provisions of the

Industrial Employment (Standing Orders) Act, 1946 are not

applicable to the hospital.

6. As against this, learned Standing Counsel appearing for

the respondent drew my attention to the finding of fact recorded by

the learned Tribunal in paragraph 5 of the impugned order and

argued that the learned Tribunal has clearly recorded a finding that

security staff and trained nurses are kept as trainees for years

together.

7. I have considered the submissions so advanced and

perused the materials placed before me. The term 'employee' is

defined by Section 2(f) of the EPF Act and it reads thus:

"(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,-

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

8. A bare perusal of the above definition makes it clear that

'apprentice' engaged under the Apprentices Act, 1961 or under the

standing orders of the establishment cannot be termed as

'employees' under the EPF Act. It is also clear that in the absence

of certified standing orders, model standing orders framed under

the Industrial Employment (Standing Orders) Act, 1946 hold the

field and the model standing orders also contain the provision for

engagement of probationer or trainee. However, the burden for

establishing the fact that the persons stated to be employees by

the Provident Fund organisation are in fact apprentice, lies on the

establishment because that is a fact especially within the

knowledge of the establishment which engages such persons.

9. In the case in hand, it is seen from the order of the

authority under Section 7A of the EPF Act that no evidence was

adduced by the petitioner-establishment to demonstrate that

persons mentioned in the report were in fact apprentice and not

employees. On this backdrop, the relevant observations recorded

by the Tribunal in paragraph 5 while deciding the appeal need to be

quoted and those read thus:

"This is a typical case wherein the test given by the Hon'ble High Court of Kerala is required to be applied. From the Annexure 1 document produced by the appellant, it is seen that the terms of conditions of engagement as trainees would be borne out from the orders issued to them for training. As already pointed out it was upto the appellant to produce those documents before the respondent at the time of hearing. It is seen from Annexure 2 produced by the appellant that security staffs are also kept as trainees and it is also stated that some of the trainees are kept for years together. From Annexure 4, it is seen that out of 161 trainees 65 trainees already been enrolled under the PF and some of the trainees are engaged as trainees for more than 4 years duration. These documents produced by the appellant themselves would clearly show that there is no clear training scheme for the appellant and even security guards are kept as trainees for years together. As already pointed out qualified nurses cannot be kept as trainees as already decided by the Hon'ble High Court of Kerala. Hence it is clear that the claim of the appellant that these trainees are apprentices under model standing orders cannot be accepted".

In the light of this discussion, it cannot be said that the

impugned order of the Appellate Tribunal is either perverse or

illegal. The same is based on record which depicts that no evidence

was adduced by the establishment to demonstrate that the persons

named in the report were in fact apprentice and not the employee

of the petitioner-establishment.

In the result, this original petition fails and the same is

dismissed.

Sd/-

A.M.BADAR

JUDGE

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APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 A COPY OF THE APPEAL MEMORANDUM TOGETHER WITH ANNEXURES IN APPEAL NO.333/2018.

EXHIBIT P2 A COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT IN APPEAL NO.333/2018.

EXHIBIT P3 A COPY OF THE ORDER DATED 23.10.2020 IN APPEAL NO.333/2018 OF CGIT, ERNAKULAM.

RESPONDENTS' EXHIBITS: NIL.

True Copy

P.S to Judge

smp