Morning Star Medical Centre, Nazareth Hill, Adimali P.O, Idukki District, Rep. by Medical Administrator V. The Assistant Provident Fund Commissioner, Sub Regional Office, EPF Organisation, Kottayam

WP(C)/18846/2010

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The case revolves around the question of whether nuns working at the Morning Star Medical Centre, a hospital, are entitled to Provident Fund contributions under the Employees Provident Funds and Miscellaneous Provisions Act. The petitioner argued that the nuns are not employees in the traditional sense as they receive only a nominal allowance and are bound by their religious vows, which might exempt them from being considered as employees under the Act. The Provident Fund Commissioner contended that the allowances are used for the nuns' maintenance, effectively making them employees under the Act. The court refrained from making a factual determination and remitted the matter to the Commissioner for a decision under Section 7A of the Act.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 799088 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 20-12-2017
• Assessment Year: misc
• Other Referred Cases: Fr.Agnelo Gracies v. Regional Provident Fund Commissioner [2005 (2) KLT 165]
• Laws Referred To: Employees Provident Funds and Miscellaneous Provisions Act
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: JOY ITOOP
• Assessee Lawyers: V M KURIAN; MATHEW KURIAN; K T THOMAS
• Keywords: Casual Labourers; Provident fund; Nuns; Employees Provident Funds and Miscellaneous Provisions Act; Section 7A
• Section: 7A

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 20TH DAY OF DECEMBER 2017/29TH AGRAHAYANA, 1939 WP(C).No. 18846 of 2010 (E) ---------------------------- PETITIONER: ----------- MORNING STAR MEDICAL CENTRE, NAZARETH HILL, ADIMALI.P.O, IDUKKI DISTRICT, REP. BY MEDICAL ADMINISTRATOR. BY ADVS.SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENT: ----------- THE ASSISTANT PROVIDENT FUND COMMISSIONER, SUB REGIONAL OFFICE,, EPF ORGANISATION, KOTTAYAM - 1. BY ADV. SRI.JOY THATTIL ITOOP, SC, EPF ORGANISATION THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 18846 of 2010 (E) --------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------ EXHIBIT P1 : TRUE COPY OF THE MEMORANDUM OF ASSOCIATION AND RULES AND REGULATIONS. EXHIBIT P2 : TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF SOCIETY NO.ER-167/85 DATED 17.04.1985. EXHIBIT P3 : TRUE COPY OF THE CERTIFICATE DATED 12.01.1993 ISSUED BY THE COMMISSIONER OF INCOME TAX. EXHIBIT P4 : TRUE COPY OF THE INSPECTION NOTE DATED 04.09.2001 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P5 : TRUE COPY OF THE WRITTEN EXPLANATION DATED 10.10.2001 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P6 : TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 12.11.2001. EXHIBIT P7 : TRUE COPY OF THE APPEAL MEMORANDUM DATED 28.11.2001 SUBMITTED BEFORE THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL. EXHIBIT P8 : TRUE COPY OF THE JUDGMENT DATED 15.01.2002 IN O.P. NO.1569/2002. EXHIBIT P9 : TRUE COPY OF THE ORDER DATED 29.11.2005 IN I.A. NO.17543/2005 IN O.P.NO.1569/2002. EXHIBIT P10 : TRUE COPY OF THE ORDER DATED 21.10.2005 IN ATA NO.712 (7) 2001 PASSED BY THE TRIBUNAL. EXHIBIT P11 : TRUE COPY OF THE ORDER DATED 27.02.2007 PASSED BY THE TRIBUNAL. EXHIBIT P12 : TRUE COPY OF THE JUDGMENT DATED 31.07.2007 IN W.P.(C). NO.14095/2007. EXHIBIT P13 : TRUE COPY OF THE ORDER DATED 29.03.2010 IN ATA NO.712 (7) 2001 PASSED BY THE TRIBUNAL. RESPONDENT(S)' ANNEXURES - NIL ------------------------ //TRUE COPY// P.A. TO JUDGE ww DEVAN RAMACHANDRAN, J. === = = = = = = == = == = = = ======= W.P.(C) No.18846 of 2010 ==== = = = = = === = = = = = = = = === Dated this the 20th day of December, 2017 JUDGMENT The issue in this writ petition is essentially as to whether the casual labourers and nuns who were working in the hospital run by the petitioner are entitled to Provident Fund contribution by the employer, in terms of the provisions of the Employees Provident Funds and Miscellaneous Provisions Act (herein referred to 'the Act' in short). 2. I am told the bar that the issue relating to the casual labourers are no longer relevant because the petitioner has paid the contribution and that all which remains now is the question whether the nuns would also be covered by the sweep of the Act. On one hand the petitioner asserts that the nuns are not paid salary and that they are paid only a nominal monthly allowance, but on the other the Provident Fund W.P.(C) No.18846 of 2010 2 Commissioner appears to take the position that the nuns are also paid amounts which is to be construed a salary since such amounts are admittedly being used for their maintenance and upkeep. Certain incidental and corollary issues have also been raised as to whether the nuns, who are by their oath obligated to serve the church, can be employed as normal employees and, therefore, if the money paid for their upkeep can be construed to be salary, so as to bring them within the sweep of the Act. These are all essentially questions of facts and will require evaluation of the materials and evidence to be produced by the parties for a final determination. 3. This Court, while article 226 of the Constitution of India, is proscribed from entering in to an examination or evaluation of questions of facts of this nature and it will not be within the province of this Court to make an affirmative view on these issues, since it will require extensive evaluation of material and evidence. I am certain that these are best left to be competent experts in the field. 4. Under the provisions of the Act, it is enjoined upon the Commissioner of Provident Fund to make a W.P.(C) No.18846 of 2010 3 determination under Section 7A and the Act prescribes specific procedural requirements for this purpose. If a determination is made under the provisions of Section 7A, taking in to account all the contention of the petitioner, then I am certain that a final view can be evolved. This is also because while making a determination under Section 7A, the competent Commissioner will have the benefit of documents and other evidence which will then throw light on the real controversy. 5. Guided by this prospective, I am of the view that it will not be proper for this Court to enter in to an adjudication akin to a determination under Section 7A of the Act and that the competent Commissioner requires be directed to complete such determination taking into view all the contentions of the petitioner. I am also cognizant that the petitioner relies upon the judgment in Fr.Agnelo Gracies v. Regional Provident Fund Commissioner [2005 (2) KLT 165] of the High Court of Bombay, to assert that Priests who are employed in the Seminary cannot be seen to be employees and that the case of nuns working under them are also analogous. I do not intend to take any conclusive view on this W.P.(C) No.18846 of 2010 4 and I deem it fit to leave this also for the consideration of the competent Commissioner while the determination is made under the Act. In such circumstances, I close this writ petition without entering into the merits of the various contentions and controversies raised herein but remit the matter to the competent Commissioner of the Provident Fund to make a determination under Section 7A, after affording an opportunity of being heard to the petitioner and the concerned employees in terms of law, specifically adverting to the judgments relied upon by the petitioner and their contention that nuns are not employees under them. To facilitate this enquiry even though I have not considered the impugned Ext.P13 order on its merits, I set it aside, since the findings therein would implead a fresh consideration by the Commissioner. The exercise as directed herein may be completed by the respondent, as expeditiously as possible without any avoidable delay. This writ petition is thus ordered. Sd/- DEVAN RAMACHANDRAN, JUDGE ww "