Madras High Court
The Executive Officer/Joint ... vs The Registrar on 13 April, 2022
W.A(MD)No.558 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.04.2022
CORAM :
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.A(MD)No.558 of 2011
and
M.P(MD)No.1 of 2011
The Executive Officer/Joint Commissioner,
Arulmigu Dhandayuthapaniswamy Thirukoil,
Palani-624 601, Dindigul District. ... Appellant
vs.
1.The Registrar,
Employees Provident Fund Appellate Tribunal
(Ministry of Labour & Employment, Govt of India)
Scopeminar Core-II, 4th Floor, Laxmi Nagar District Centre,
Laxmi Nagar, New Delhi-110 092.
2.The Regional Provident Fund Commissioner,
Bhavishyanidhi Bhavan, Post Box No.1,
Lady Doak College Road, Chooikulam,
Madurai-625 002. ... Respondents
Appeal filed under Clause 15 of Letters Patent, against the
order dated 28.01.2011 in W.P(MD)No.12085 of 2010.
For Appellant : Mr.R.Devaraj
For R1 & R2 : Mr.K.Murali Sankar
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W.A(MD)No.558 of 2011
JUDGMENT
R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
Challenge in this writ appeal is to the order of the learned
Single Judge dated 28.01.2011 made in W.P(MD)No.12085 of 2010,
in and by which, the writ petition filed by the petitioner/appellant
Temple challenging the orders of the appellate authority under the
Employees' Provident Fund and Miscellaneous Provisions Act, 1952
(hereinafter referred to as, ''the Act'') was dismissed.
2. The Provident Fund authority launched the proceedings
against the Temple under Section 7A of the Act in respect of the
Hospital and the Matriculation School run by the Temple. The
Provident Fund Authority held that these two institutions were
brought under the scope of the Act on 01.12.1977 and 01.08.1992
respectively. A coverage memo was issued on 08.10.1994 and the
Hospital and the School were allotted separate code numbers in
No.TN/29605 and TN/29604 respectively. The said coverage memo
was challenged by the appellant Temple in W.P(MD)No.9662 of 1997
and stay of operation of the said coverage memo was obtained by the
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W.A(MD)No.558 of 2011
Temple authorities. The said writ petition was disposed of with a
direction to the appellant to approach the authority by submitting an
explanation with all relevant documents.
3. Thereafter, an enquiry under Section 7A of the Act was
conducted by the authority. Before the authority, the appellant
contended that it being a institution under the control of the State
Government and having its own Contributory Provident Fund
Scheme, it will be an exempted establishment within the meaning of
Section 16(1)(b) of the Act. It was also contended that while the
school employees were about 27 persons on the date of coverage,
the hospital employees were only 7 persons and therefore, the
Hospital would be an exempted establishment. The authority
compared the provisions of the scheme with the provisions of the
scheme under the Act and found that the scheme under the Act is
more beneficial to the employees. Therefore, the authority held that
the Act would apply and the institutions are liable to pay contributions
under the Act.
4. Aggrieved, the Temple preferred an appeal before the
appellate authority. The learned appellate authority held that the
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W.A(MD)No.558 of 2011
institution cannot be termed as an institution under the control of the
State or Central Government and therefore, the exemption provided
under Section 16(1)(b) would not be applicable. On the question of
contribution, the appellate authority concluded that the finding of the
original authority is correct and does not call for interference. Hence,
the Temple approached this Court again in W.P(MD)No.12085 of
2010.
5. The Writ Court concurred with the appellate authority in
its conclusion that the Temple cannot be said to be under the control
of the State Government. The Writ Court also found that the Hindu
Religious and Charitable Endowments Department itself has
withdrawn the Provident Fund Scheme that was made applicable to
all the Temples and had directed the Temples to get covered by the
Employees' Provident Fund Scheme under the Act. The Writ Court,
therefore, concluded that the Temple which runs the Hospital and
School is bound to pay the contribution as per the Act. Hence, this
appeal by the Temple.
6. We have heard Mr.R.Devaraj, learned counsel appearing
for the appellant and Mr.K.Murali Sankar, learned counsel appearing
for the respondents.
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W.A(MD)No.558 of 2011
7. Mr.R.Devaraj, learned counsel appearing for the appellant
would vehemently contend that the appellant being a institution
which is under the control of the State Government and having its
own Provident Fund Scheme till 2006, the authorities cannot demand
contribution. He would also submit that the Hospital cannot be
treated as an establishment under the Act since it employs less than
20 persons. He would also fault the authorities for combining both
the Hospital and the School to conclude that they are employing
more than 20 persons. Mr.Devaraj would also contend that the
authority under Section 7 of the Act is bound to pass an order
determining the amount payable and in the absence of such
determination, the appellant cannot be directed to pay contribution.
8. As regards the contention of Mr.Devaraj that the Temple
is an establishment under the control of the State Government, we
are unable to agree with his submissions. Temples are independent
entities. Though a supervisory mechanism is provided under the
Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959,
the authorities under the said Act cannot interfere with the day-to-
day management of the Temple or its affairs. It has been held by a
long line of decisions of this Court as well as by the Hon'ble Supreme
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W.A(MD)No.558 of 2011
Court that the Tamil Nadu Hindu Religious and Charitable
Endowments Act, 1959, is only an enactment which enables
establishment of a Board to have a supervisory control over the
Temples particularly, the finances and the properties of the Temples.
The Temples are administered by the trustees and in the absence of
trustees, a provision is made for appointment of a fit person that by
itself will not make the establishment one under the control of the
State Government. We are, therefore, unable to find fault with the
Writ Court, when it held that the appellant is not an exempted
establishment under section 16(1)(b) of the Act.
9. Adverting to the second contention of Mr.Devaraj that the
Hospital employs less than 20 persons and therefore, it cannot come
within the meaning of an establishment under the Act, we are
inclined to accept the submissions of the learned counsel for the
appellant. Though Mr.Murali Sankar learned counsel appearing for
the respondents would vehemently contend that the Hospital and the
School being run by the same employer, the total strength of both
the establishments should be taken into account to decide the
applicability. He would rely upon Section 2A of the Act to justify his
submission. Section 2A of the Act reads as follows:-
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W.A(MD)No.558 of 2011
''2A.Establishment to include all
departments and branches.—For the removal
of doubts, it is hereby declared that where an
establishment consists of different
departments or has branches, whether situate
in the same place or in different places, all
such departments or branches shall be treated
as parts of the same establishment.''
10. We are unable to accept the contention of the learned
counsel that the School and the Hospital should be treated as same
department or branches of the same establishment. While the
Matriculation School run by the appellant was brought under cover of
the Act in the year 1992, the Hospital run by the appellant was
brought under the cover of the Act in the year 1977. Separate code
numbers were allotted to the Hospital and the School. Therefore, it
cannot be said that the School and the Hospital should be treated as
one unit for the purpose of determining the applicability of the
enactment. It is seen from the records that the Hospital employs
only 7 persons at the time of coverage. Therefore, the Hospital
cannot be treated as an establishment liable to coverage under the
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W.A(MD)No.558 of 2011
Act. Hence, the authority is not justified in demanding contribution
from the Hospital. Therefore, the Hospital would be exempt from the
provisions of the Act.
11. As regards the School, it is seen that the School had
admittedly employed 27 persons at the time of coverage. It is the
grievance of Mr.Devaraj, that the authority under the Act has not
complied with Section 7A(1)(b), inasmuch as the authority has not
determined the amount due from the employer under the provisions
of the Act. Unless the amount is quantified, the appellant cannot be
expected to pay. We find from the orders of the authorities that the
contention of Mr.Devaraj is justified. The amount payable has not
been determined. Admittedly, the institution has got its own
Contributory Provident Fund Scheme and the employees have been
contributing to the same and they have also been enjoying the
advantages of the said scheme. The same should also be taken into
account while determining the contribution payable. While upholding
the applicability of the Act to the School alone, we remit the matter
to the authority to enable him to decide the amount due from the
employer under Section 7A(1)(b) of the Act. While doing so, the
authority will also take into account the benefits which were granted
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W.A(MD)No.558 of 2011
to the employees under the Contributory Provident Fund Scheme that
is now in force and decide the quantum accordingly.
12. The Writ Appeal stands disposed of on the above terms.
Such exercise shall be completed within a period of 6 months from
the date of receipt of a copy of this judgment. Needless to say that
the appellant will co-operate with the authorities. No costs.
Consequently, connected miscellaneous petition is closed.
(R.S.M., J.) (N.S.K., J.)
13.04.2022
Index : Yes / No
bala
To
1.The Registrar,
Employees Provident Fund Appellate Tribunal
(Ministry of Labour & Employment, Govt of India)
Scopeminar Core-II, 4th Floor, Laxmi Nagar District Centre,
Laxmi Nagar, New Delhi-110 092.
2.The Regional Provident Fund Commissioner,
Bhavishyanidhi Bhavan, Post Box No.1,
Lady Doak College Road, Chooikulam,
Madurai-625 002.
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W.A(MD)No.558 of 2011
R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
bala
JUDGMENT MADE IN
W.A(MD)No.558 of 2011
DATED : 13.04.2022
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