IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 OP.No. 22711 of 2000(D) ----------------------- PETITIONER(S): --------------- LATHIKA.C., HEADMISTRESS, GURUJYOTHI MODEL SCHOOL, NEDUNGOLAM.P.O., KOLLAM. BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENT(S): --------------- 1. THE REGIONAL PROVIDENT FUND COMMISSIONER, KERALA, BHAVISHYA NIDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-4. *ADDL.R2. EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, 7TH FLOOR, 60-SKYLARK BUILDING, NEHRU PLACE, NEW DELHI - 110 019. (*IMPLEADED ADDITIONAL R2 AS PER ORDER DATED 13/10/2000 IN CMP NO.39759/2000) ADV. SRI.P.S.SREEDHARAN PILLAI, SCGSC SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/05/2009, ALONG WITH OP NO. 31954 OF 2000 THE COURT ON 25/05/2009 DELIVERED THE FOLLOWING: OP NO.22711/200 ORDER ON CMP NO.38252/2000 IN OP NO.22711/2000 DISMISSED. 25/05/2009 SD/- (ANTONY DOMINIC, JUDGE) APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF PROVISIONAL COVERAGE NOTICE NO.KR/12937/ENF.II(5) 96 DATED 29/11/1996 ISSUED BY THE RESPONDENT. P2 : COPY OF REVIEW PETITION DATED 16/01/97 FILED BY THE PETITIONER & OTHER EMPLOYEES BEFORE THE RESPONDENT. P3 : COPY OF ORDER NO.KR/12937/ENF.II(1)/98 DATED 04/01/98 ISSUED BY RESPONDENT. P4 : COPY OF JUDGMENT IN OP NO.22210/98 DATED 05/03/1999 OF THIS HONOURABLE COURT. P5 : COPY OF ORDER DATED 08/02/2000 PASSED BY THE EPF APPELLATE TRIBUNAL. RESPONDENT'S EXHIBITS R1(a) : COPY OF THE ATTENDACE REGISTER. R1(b) : COPY OF THE ENQUIRY REPORT DATED 24/09/1996. R1(c) : COPY OF THE MAHAZAR. R1(d) : COPY OF PROCEEDINGS OF THE REGIONAL PROVIDENT FUND COMMISSIONER, TRIVANDRUM DATED 04/01/1998. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- O.P. Nos.22711 & 31954 of 2000 --------------------------------- Dated, this the 25th day of May, 2009 J U D G M E N T The dispute raised in these two writ petitions is regarding the liability of coverage under the Employees Provident Funds and Miscellaneous Provisions Act, 1952 in respect of an educational institution. 2. From the facts pleaded in these original petitions, it would appear that a school was initially started by M/s.Sree Narayana Charitable Trust in 1987. The trust deed is Ext.P12 in OP No.31954/2000. It would appear that the position continued until 1995, when following Ext.P4 in OP No.31954/2000, the school was entrusted to M/s.Sree Narayana Vidya Bhavan Teachers' Consortium following a decision taken by the committee of the Trust. It is stated that this position continued until 1996, when the management was entrusted to M/s.Sree Narayana Charitable and Educational Society, the Certificate of Registration of which is Ext.P13 in OP No.31954/2000. OP Nos.22711 & 31954/2000 -2- 3. It would appear that while so following an inspection in the School, Ext.P5 in OP No.31954/2000 was issued calling upon the Secretary of the Society, which run the school, to remit the Provident Fund contribution and that was contested, and finally after an enquiry, as contemplated under Section 7A of the Act, Ext.P8 order was issued by the Commissioner, upholding the coverage in respect of the establishment overruling the contention that the establishment in question was not in existence for more than three years and that the number of employees were less than 20. 4. It would appear that an original petition was filed before this Court challenging the aforesaid order. That original petition was disposed of relegating the parties to pursue the matter in statutory appeal as provided under the Act before the Employees Provident Fund Appellate Tribunal, New Delhi. Accordingly, appeals were filed and those appeals were rejected by a common order, produced as Ext.P10 in OP No.31954/2000. Based on Ext.P10, liability was ordered to be discharged and at that stage, these original petitions have been filed challenging the aforesaid orders. OP Nos.22711 & 31954/2000 -3- 5. Pleadings in the original petitions would show that contentions which were urged before the Commissioner and the Appellate Tribunal are reiterated before this Court also. The main contention is that at the time when coverage was ordered, the establishment, namely, M/s.Sree Narayana Charitable and Educational Society had not completed three years of its existence or in other words, the period of infancy protection had not expired. The other contention raised is that at the relevant time, the number of employees of the establishment in question was less than 20. 6. In so far as the infancy protection that is claimed by the petitioners is concerned, it would appear from the records produced in the original petitions that this plea has been raised before the Commissioner during the course of the enquiry and also before the Tribunal. Both the authorities examined the factual aspects and have concurrently held against the petitioners. The commissioner has held that irrespective of change of hands, the establishment essentially is only a continuation of the original one, and therefore, change of name from a Trust to a Society is of no consequence. It is with that conclusion, the Commissioner has held that mere change OP Nos.22711 & 31954/2000 -4- of place, structure, management or nature of management, whether it is ownership, lease or otherwise will not alter the liability for payment of contribution due under the Act. This plea was reiterated before the Tribunal and has been overruled in Ext.P10 referred to above. 7. Having considered the orders impugned, I am inclined to agree with the conclusions in the orders of the Commissioner and the Tribunal. If I am to accept the plea now raised, that will be allowing the petitioners to get the infancy protection from the date when the society was formed, and thus enable them to avoid the liabilities for the entire past period. On the basis of the factual conclusions that are arrived at by the Commissioner and also the Tribunal, I am inclined to uphold the findings rendered by the authorities. 8. Yet another contention that was raised before the Commissioner and the Tribunal was regarding the number of employees, which according to the petitioners was below 20 at the relevant point of time. A reading of the orders show that the attendance registers were produced before the authorities and some OP Nos.22711 & 31954/2000 -5- of the names were found to have been scored off. It is referring to this document and other records, the coverage in that respect also has been upheld. Having considered these findings also, I see no reason to take a view different from what has been taken by the Commissioner and the Tribunal. These original petitions fail and are accordingly dismissed. (ANTONY DOMINIC, JUDGE) jg