IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930 OP.No. 27000 of 2000(L) ----------------------- PETITIONERS: ------------ 1. THE UNIVERSITY OF CALICUT, REP. BY ITS REGISTRAR, CALICUT UNIVERSITY POST, THENHIPALAM, MALAPPURAM. 2. THE WARDEN, CALICUT UNIVERSITY MEN'S HOSTEL, DO. DO. 3. THE WARDEN, CALICUT UNIVERSITY WOMEN'S HOSTEL, DO. DO. BY ADV. SRI.P.C.SASIDHARAN RESPONDENTS: ------------- 1. THE REGIONAL PROVIDENT FUND COMMISSIONER, SUB REGIONAL OFFICE, BHAVISHYAHIDHI BHAVAN, P.B.NO. 1806, ERANHIPALAM P.O., KOZHIKODE – 673 006. 2. THE EMPLOYEES' PROVIDENT FUND APPELLATE TRIBUNAL, 7TH FLOOR, 60, SKYLARK BUILDING, NEHRU PLACE, NEW DELHI – 110 019, REP. BY ITS REGISTRAR. BY ADV. SRI.N.N.SUGUNAPALAN (SR.) SRI.C.S.ABDUL SAMMAD, ADDL.CGSC SRI.MATHEWS J.NEDUMPARA, SC,P.F.ORGSN. SRI.THOMAS MATHEW NELLIMOOTTIL,SC, P.F. FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/09/2008, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONERS' EXHIBITS: O.P.NO. 27000/2000 --------------------------------------------------------------- EXT.P1 TRUE COPY OF JUDGMENT IN O.P.NO. 7203/93 DST. 3-6-1993. EXT.P2 ORDER DT. 29-3-1994. EXT.P3 ORDER DT. 31-5-1995. EXT.P4 ORDER DT. 14-12-1995. EXT.P5 ORDER DT. 12-9-1996. EXT.P6 ORDER DT. 12-8-1997. EXT.P7 ORDER DT. 12-8-1999. EXT.P8 APPEAL SUBMITTED BEFORE R2. EXT.P9 DO. DO. EXT.P10 DO. DO. EXT.P11 DO. DO. EXT.P12 DO. DO. EXT.P13 COMMUNICATION DT. 20-12-1999. EXT.P14 ORDER DT. 7-2-2000. EXT.P15 JUDGMENT IN W.A.NO. 1690/93 AND CONNECTED CASES DT. 19-3-1999. EXT.P16 ORDER DT. 31-8-2000. RESPONDENTS' EXHIBITS: -------------------------------------- EXT. R1(a) ORDER DT. 25-1-1997. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 27000 of 2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 19th September, 2008. J U D G M E N T A very difficult question arises in this case. The University of Calicut and the Wardens of its Men's and Women's hostels are the petitioners in this original petition. They are aggrieved by orders of the original and appellate authorities under the Employees Provident Funds and Miscellaneous Provisions Act, whereby, mess in the two hostels run by the University are sought to be clubbed together under Section 2A of the Act and to be covered under the Act. Before the authority under Section 7A, the University took the contentions that the University is not the employer of the employees of the mess run in the hostels and that even if the University is the employer, these hostels are completely distinct and separate and cannot be clubbed together for the purposes of the Act. According to the University, the University has absolutely no control over the running of the mess. The mess is run by the employees' committee elected by the students from among themselves and they only appoint and pay wages to the employees of the mess. As such, the University cannot be saddled with the liability to cover the employees of the mess under the Act and to pay contributions in respect of them, so far as by no stretch of imagination is there any employer-employee relationship between the University and the employees of the mess. Therefore, according to the University, the University cannot be held responsible for payment of contributions under the Act in respect of the employees of the mess. Alternately, they further contend that even if the University can be held to be the employer of the employees of the mess of the hostels, these two hostels are kept completely separate for all purposes and therefore the two cannot be clubbed together for the purpose of coverage under the Act. The contention is that if considered as distinct and separate units, there are no sufficient O.P.No. 27000/2000. -: 2 :- number of employees in each hostel for becoming liable to be covered under the Act. However, the contentions raised by the University did not find favour with the authority under Section 7A of the Act who passed Exts. P2 to P7 orders for various periods. Against those orders, the University filed Exts.P 8 to P12 appeals. Those appeals were dismissed by the Appellate Tribunal by Ext. P14 common order on the ground that the appeals are barred by limitation. The petitioners challenge the original and appellate orders in this original petition. 2. I am unable to consider the contentions of the University on merits in view of a Division Bench decision of this Court in Assistant Commissioner of Central Excise v. Krishna Poduval, 2005(4) KLT 947, wherein the Division Bench has held that where an appeal is dismissed as barred by limitation, the cause of action of the appellant is finally lost and the same cannot be resurrect by filing a writ petition under under Article 226 of the Constitution of India challenging the original and appellate orders seeking a decision on merits. Accordingly, the original petition is dismissed following the said decision. However, I am of the opinion that, in view of the peculiar circumstances of the case and the facts that the petitioner is a University, the decision on the issue will affect other University hostels also and that the petitioners lost an opportunity to contest the matter on merits on account of technical ground of limitation, the petitioners should be given an opportunity to contest the matter on merits, when 7A proceedings are initiated for computation of amounts for future periods. Therefore, I make it clear that the impugned orders and this judgment will not stand in the way of the petitioners contesting the issue on the grounds taken in this original O.P.No. 27000/2000. -: 3 :- petition as enumerated above as and when fresh proceedings are initiated for demanding contributions for future periods. Sd/- S. Siri Jagan, Judge. Tds/