Rajesh Krishnan, Secretary Vs. Assistant Provident Fund Commissioner - Court Judgment

Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894 section 54; [v.k. bali, cj, kurian joseph & k. balakrishnan nair, jj] appeal court fee payable held, court fee is liable to be paid on an ad varolem basis on compensation amount claimed in appeal. - according to them, exhibit p-3 does not constitute standing orders as referred to in the definition of 'employee' under the act and without standing orders applicable to the employees of the petitioner's establishment, which permits engagement of apprentices, the trainees also would come within the definition of 'employee'.although they have not taken such a contention in the proceedings resulting in exhibit p-9, they would now raise a contention that for the purpose of becoming eligible for exemption under section 16(1)(a), it is not sufficient that the petitioner is employing less than 50 persons, but the other condition referred to therein that the establishment is working without the aid of power also should be satisfied. apart from the permanent employees, the petitioner has been engaging trainees for the purpose of training in accordance with the training scheme, the rules and regulations as well as the standing orders. ' (underlining supplied) 10. those sentences would show that in the establishment referred to in that judgment, there were standing orders as well as a training scheme. 12. admittedly, if these trainees are also included in the number of workmen of the hospital, clearly the number of workmen would exceed 50. the exemption under section 16(1)(a) is available only to a co-operative society, who employs less than 50 employees. therefore, since the petitioner's hospital is working with the aid of power, clearly for that reason also, the petitioner falls out side the scope of section 16(1)(a) of the act. 14. for the above reasons, the challenge against exhibit p-9 order clearly fails.s. siri jagan, j.1. the petitioner is a co-operative society engaged in the business of running a hospital. they are aggrieved by exhibit p-9 order of the respondent - assistant provident fund commissioner, kottayam, by which it was held that the petitioner's hospital is liable to be covered under the employees provident funds and miscellaneous provisions act and the scheme framed thereunder. according to the petitioner, being a co-operative society employing less than 50 employees, the petitioner is eligible for exemption from the provisions of the act, by virtue of section 16(1)(a) of the employees provident funds and miscellaneous provisions act, by which co-operative societies employing less than 50 employees are exempted from the purview of the act. the petitioner's contention is that. exhibit p-9 order has been passed considering the trainees engaged by the petitioner in their establishment also as employees, who do not come within the definition of 'employee' under section 2(f) of the act, without counting whom, the number of employees employed by the petitioner in their hospital is below 50, consequent to which the exemption provision applies to the petitioner. the petitioner would also contend that for this purpose, exhibit p-3 scheme framed by the petitioner as per which the trainees are engaged must be construed as a standing order referred to in the definition of 'employee' in section 2(f) of the act, in which case, the trainees are liable to be excluded for the purpose of calculating the number of employees employed in the petitioner's establishment, direct result of which is that the petitioner is employing less than 50 employees and therefore is eligible for exemption under section 16(1)(a) of the act. the petitioner relies on the judgment of the madras high court in sri. rama vilas service ltd. v. regional provident fund commissioner : 2000 i llj 709, wherein, according to the petitioner, an (identical training scheme has been relied upon for the purpose of holding that trainees employed as per that training scheme is excluded from the purview of the definition of 'employee'. the contention of the petitioner is that since the two schemes are in pari materia, the trainees engaged by the petitioner under exhibit p-3 scheme are also liable to be excluded for the purpose calculating the number of employees of the petitioner's establishment, while considering claim for exemption under section 16(1)(a) of the act.2. this is opposed by the learned counsel for the provident fund organisation. according to them, exhibit p-3 does not constitute standing orders as referred to in the definition of 'employee' under the act and without standing orders applicable to the employees of the petitioner's establishment, which permits engagement of apprentices, the trainees also would come within the definition of 'employee'. although they have not taken such a contention in the proceedings resulting in exhibit p-9, they would now raise a contention that for the purpose of becoming eligible for exemption under section 16(1)(a), it is not sufficient that the petitioner is employing less than 50 persons, but the other condition referred to therein that the establishment is working without the aid of power also should be satisfied.3. i have considered the rival contentions' in detail.4. section 16(1)(a) reads thus:16. act not to apply to certain establishments. - (1) this act shall not apply - (a) to any establishment registered under the co-operative societies act, 1912 (2 of 1912), or under any other law for the time being in force in any state relating; to co-operative societies, employing less than fifty persons and working without the aid of power; or....the term 'employee' is defined in section 2(f) of the act thus:'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 and 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;5. going by the said definition, for excluding an apprentice from the purview of 'employee', that apprentice should have been engaged under the apprentices act 1961 or under the standing orders of the establishment. the petitioner has no case that the apprentices in question were engaged under the apprentices act. therefore, the question which has to be considered is whether the apprentices, whom the petitioner claims to have engaged are engaged under the standing orders of the establishment. no standing orders other than exhibit p-3, which the petitioner claims to be the standing orders have been produced before me. the petitioner also contends that even if exhibit p-3 cannot be construed as standing orders, the bye-laws of the society can be construed as the standing orders permitting engagement of trainees, in view of clause 2(e) of the bye-laws, which is quoted in the original petition, thus:to train nurses, compounders, technicians, opticians, physiotherapists, etc. and to conduct institutions to impart the required trainingaccording to the petitioner, since the object clause of the bye-laws of the society provides for training of nurses, compounders, technicians, opticians, physiotherapists etc. that should be construed as standing orders permitting engagement of trainees.6. i am unable to agree. it cannot be disputed by anybody that the term 'standing 'orders' has a definite connotation in industrial law. the industrial employment (standing orders) act gives an indication as to what a standing order should contain. section 2(g) of that act defines 'standing orders' to mean rules relating to matters set out in the schedule. the schedule reads thus:matters to be provided in standing orders under this act.-1. classification of workmen eg. whether permanent, temporary, apprentices, probationers or badlis.2. manner of intimating to workmen periods and hours of work, holidays, pay days and wage rates.3. shift working.4. attendance and late coming.5. conditions of procedure in applying for and authority which may grant leave and holidays.6. requirements to enter premises by certain gates and liability to search.7. closing and re-opening of sections of the industrial establishment and temporary stoppages of work and the rights and liabilities of the employer and workmen arising there from.8. termination of employment and the notice thereof to be given by employer and workmen.9. suspension or dismissal for misconduct and acts and omissions which constitutes: misconduct.10. means of redress for workmen against unfair treatment or wrongful exactions by the employer or his agents or servants.10a. additional matters to be provided in standing orders relating to industrial establishment in coal mines-(1) medical aid in case of accident.(2) railway travel facilities.(3) method of filling vacancies.(4) transfers.(5) liability of manager of the establishment or mine.(6) service certificate.(7) exhibitions and supply of standing orders.11. any other matter which may be prescribed.7. model standing orders have also been prescribed in the rules framed under the act. standing orders which provides for such matters are what is referred to in the definition of 'employee' in section 2(f) of the act. such standing order should specifically contain a provision, whereby the establishment can engage an apprentice in that establishment, and the apprentice so engaged only would be taken out of the purview of the definition of 'employee'. the petitioner has not been able to produce before me or refer to any such standing orders as contemplated in the definition. the object clause of the bye-laws referred to in the original petition can by no stretch of imagination be termed as standing orders. it only lays down the objects of the society for which the petitioner's society can engage themselves in, as required under the kerala co-operative societies act. that does not constitute standing orders at all.8. of course, the petitioner has a contention that exhibit p-3 can be construed as standing orders, which also i cannot agree. exhibit p-3 is only a scheme for training persons in the nursing, laboratory and x-ray departments of the petitioner's hospital. it does not provide for the general conditions of service of the employees which standing orders should necessarily contain. that deals exclusively with trainees only. exhibit p-3 can be pressed into service only if there are standing orders for the establishment which provides for engaging apprentices. that being so persons engaged as trainees as per exhibit p-3 scheme cannot be excluded from the purview of 'employee'. therefore, by no stretch of imagination can exhibit p-3 also be termed as a standing order.9. the result of the above discussion is that there are no standing orders in the petitioner's establishment as referred to in the definition of employee in section 2(f) of the act, which permits the petitioner to engage apprentices in their establishment. without such standing orders, the apprentices, even if engaged by the petitioner as per exhibit p-3 scheme, cannot be excluded from the purview of the definition of 'employee' as defined in section 2(f) of the act. of course, the petitioner would rely on the decision of the madras high court sri. rama vilas service ltd. v. regional provident fund commissioner (supra), in which, according to the petitioner, such a scheme was considered as standing orders. a reading of the said judgment would, without any doubt, show that the contention of the petitioner is wrong. the following sentences in paragraph 5 of the said judgment would conclusively prove the same:5. xxxx xxxx xxxx xxxxthe petitioner-company is having its goods transport services and also workshop. apart from the permanent employees, the petitioner has been engaging trainees for the purpose of training in accordance with the training scheme, the rules and regulations as well as the standing orders. the trainees are classified as 'staff trainees', who are trained in the administrative side of the] office, 'technical trainees' trained in the workshop, 'workshop trainees' and 'security trainees.'(underlining supplied)10. those sentences would show that in the establishment referred to in that judgment, there were standing orders as well as a training scheme. the types of employees permitted to be engaged by the establishment by the standing orders are also mentioned in the judgment. this is further highlighted from the following sentences in the same judgment.5.... the petitioner herein, replied, to the same by their letter dated october 3, 1988, stating that in terms of the provisions of the standing orders applicable to the petitioner-company they have classified the trainees as learners, who may be paid or unpaid during the period of such training and it is not obligatory on the part of the petitioner to provide an apprentice with work, in the company after his training period.(underlining supplied)11. therefore, in that judgment also, the trainees, who were trained in accordance with the scheme framed by the establishment, were also engaged pursuant to provisions available in the standing orders of the establishment. here it is not so. the petitioner could not refer to any document which could answer the description of standing orders as contemplated in section 2(f). that being so, these trainees cannot be exempted from the purview of the definition of 'employee' in section 2(f) of the act.12. admittedly, if these trainees are also included in the number of workmen of the hospital, clearly the number of workmen would exceed 50. the exemption under section 16(1)(a) is available only to a co-operative society, who employs less than 50 employees. since taking into account so called trainees also the number of employees exceeds 50, the petitioner is not entitled to the benefit of exemption under section 16(1)(a).13. although in view of my above finding it is not necessary for disposal of this writ petition to consider the same, i also find merit in the contention of the respondent that for attracting section 16(1)(a), the society employing less than 50 employees should also be one working without the aid of power. it is common knowledge that no hospital can function without the aid of power. therefore, since the petitioner's hospital is working with the aid of power, clearly for that reason also, the petitioner falls out side the scope of section 16(1)(a) of the act.14. for the above reasons, the challenge against exhibit p-9 order clearly fails. accordingly, the original petition is dismissed.15. the learned counsel for the petitioner makes a fervent plea that if the petitioner is now forced to pay the demand, the society would have no other option, but to close down. i do not find that consideration of sympathy can weigh with this court in deciding a question of law. but i make it clear that it would be open to the petitioner to approach the appropriate authorities under the employees provident funds and miscellaneous provisions act, 1952 for appropriate exemptions and remissions and i hope that the appropriate authority would consider the same with the sympathy it deserves considering the fact that the petitioner is a co-operative society and the respondent organisation seeks to protect the welfare of the employees of the petitioner's establishment who would be likely to be rendered jobless, if the demand is enforced. in any event the petitioner shall be given at least four months time to pay off the amount demanded.