IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 OP.No. 33680 of 2000(H) ----------------------- PETITIONER: ------------ 1. DR.D.PRASANNAN, MANAGIND DIRECTOR, INSTANT BIO LAB PVT. LTD., KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM (DIED) ADDITIONAL PETITIONER: 2. D.SARASWATHY DEVI, W/O.LATE DR.P.PRASANNAN, SREENIKETHAN, DIVISION OFFICE ROAD, P.M.G. JUNCTION, THIRUVANANTHAPURAM. (ADDL.P2 IMPLEADED AS PER ORDER IN I.A.NO.11878/08 ON 18.9.2008) BY ADV. SRI.P.GOPALAKRISHNAN NAIR RESPONDENTS: ------------- 1. THE PRESIDING OFFICER, EMPLOYEES' PROVIDENT FUND APPELLATE TRIBUNAL, CAMP: THIRUVANANTHAPURAM. 2. THE REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUNDS, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.N.N. SUGUNAPALAN, SC, P.F. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.33680/00. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE CERTIFICATE OF REGISTRATION DTD.9.10.96. P2. COPY OF THE MAHAZAR BY THE SQUAD. P3. COPY OF THE REPORT BY THE SQUAD. P4. COPY OF THE ORDER DTD.5.6.97. P5. COPY OF THE WRITTEN STATEMENT OF OBJECTIONS DTD.23.3.98. P6. COPY OF THE -DO- 14.5.98. P7. COPY OF THE AFFIDAVIT BEFORE R2 DTD.5.7.99. P8. COPY OF THE ORDER DTD.24.4.00 BY R2. P9. COPY OF THE ORDER DTD.7.6.00. P10. COPY OF THE APPEAL MEMORANDUM DTD.30.6.00. P11. COPY OF THE ORDER IN CASE NO.ATA 340(7) 2000 DTD.9.11.00 BY R1. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No.33680 of 2000 ================== Dated this the 18th day of September, 2008 J U D G M E N T This original petition was originally filed by one Dr.Prasannan, Managing Director of Instant Bio Lab (Pvt) Ltd., Thiruvananthapuram, challenging the orders issued by the 2nd respondent and 1st respondent, who are original and appellate authorities under the Employees' Provident Funds and Miscellaneous Provisions Act (“The Act” for short). During the pendency of the original petition Dr.Prasannan died and, by virtue of the orders in I.A.No.11878/2008, his wife, who is also a director of the establishment, has been impleaded as additional petitioner, who prosecutes the original petition further. 2. In this original petition the petitioners are challenging Exts.P8 and P11 orders. Ext.P8 is the order passed by the 2nd respondent under Section 7A of the Act. Ext.P11 is the order of the 1st respondent Appellate Tribunal in the appeal filed by the petitioners against Ext.P8 order. Both ended against the petitioners. o.p.33680/00 2 3. Notices were issued under Section 7A of the Act to the establishment seeking to club the petitioners' establishment with another establishment by name “Cryo Clinic”. In Ext.P8 order the 2nd respondent ultimately came to the conclusion that both are separate establishments and are not liable to be clubbed together. Thereafter, the 2nd respondent proceeded to consider the question as to whether the petitioners' establishment is liable to be covered independently under the Act. Therefore, the question was examined as to whether the petitioner's establishment employs 20 or more persons so as to bring the petitioner's establishment within the purview of the Act and ultimately, the 2nd respondent came to conclusion that the establishment was in fact employing 20 or more persons and therefore, the establishment is independently liable to be covered under the Act. The petitioners' appeal against that order was dismissed by Ext.P11 order. It is under the above circumstances, this original petition has been filed. 4. The contention of the petitioners is that the finding of fact that the petitioners' establishment was employing 20 or more persons in their establishment is perverse and o.p.33680/00 3 unsustainable. According to the petitioners, the documents submitted by the petitioners before the 2nd respondent proved that the petitioners' establishment does not employ 20 or more persons. Reading from Ext.P8 order, the counsel for the petitioners would try to prove that the findings were based on mere conjunctures and surmises and not on evidence. He also specifically submits that none of the documents produced by the petitioners to prove the case has not been adverted to by the 2nd respondent. He therefore, submits that Exts.P8 and P11 orders are clearly unsustainable and are liable to be set aside. 5. I have considered the contentions of the petitioners elaborately. 6. The question as to whether the petitioners are employing 20 or more persons in their establishment has been considered by the 2nd respondent in Ext.P8 thus: “The next question to be examined is whether M/s.Instant Bio Lab (Pvt) Ltd. is liable for coverage independently from the date it has completed infancy on 1.11.96. In deciding this issue, some crucial aspects have to be examined. In the Mahazar prepared by the Squad Enf.officers on 4.10.96 a copy of which has already been made available to the Managing Director of Instant Bio Lab (Pvt) Ltd., it is relevant to note the confession made by the Manager Mr.Rajagopalan Nair. Sri.Rajagopalan Nair has confessed before the Enf.officers that no proper attendance and salary registers have been maintained. He has stated that in the reception a register showing the arrival and o.p.33680/00 4 departure of employees were recorded. The Squad could physically count 22 employees on the date of their visit on 4.10.96 in the Mahazar prepared by the Enf.Officers names of 29 employees including part time/honarary consultants whoa re paid wages/remuneration are included. Out of 29 employees 22 employees have signed the statement in the presence of the Enf.officers. 7 persons including Shaji N.R., Peon, Sri.Karunakaran Nair, Ambulance Driver and 5 Doctors who are working as honarary/part time consultants viz. Dr.Alelyamma Joseph, Dr.Ramachandran, Dr.Elizabeth Eapen, Dr.Aleykutty and Dr.K.R.Menon could not sign the statement as they were not present at the time of visit by Enf.Officers. In this connection the statement of Mr.Rajagopalan Nair, Manager that no proper attendance and wages registers are maintained assumes greater importance. The management in their letter dated 11.10.96 has stated that 17 persons including 4 cleaners are working in the establishment. It is quite possible that Doctors who are honarary consultants might not be marking their attendance. Since they are paid remuneration for the services rendered, they are to be treated as employees within the meaning of Sect.2(f) of the Act. Simply because the names of Doctors or other employees are not entered in the register, it does not mean that they should not be counted for the purpose of coverage under the Act. The Enf.Officers have consistently stated that no attendance and wages registers are produced for verification. Obviously registers were not maintained properly and since it has been conclusively proved that 29 employees were working in Instant Boi Lab (Pvt) Ltd. as on 4.10.96, it is quite possible that they might be working on 1.11.96 also on which date the establishment has completed its infancy. Apart from stating that 17 employees only are working, the management has not specified who are those 17 employees. The statement of employment strength signed by 22 employees and countersigned by the Squad Enf.Officers were made available to the Managing Director, but he has never disputed the names or the authenticity of the signatures put therein. There is every reason to believe that the establishment had employed more than 20 employees as on 1.11.96 and therefore it is legally coverable from that date. Though the employment strength as on 1.11.96 is not reported because of non-production/non- maintenance of wages and attendance register by the Managing Director, it will not materially change the position since the engagement of 29 employees as on 4.10.96 has been conclusively proved.” 7. The only question I have to decide is as to whether o.p.33680/00 5 the above finding of fact is perverse warranting interference. Before dealing with the same, I must remind myself of my limited jurisdiction in dealing with challenge against such orders. It is settled law that findings of fact in such orders cannot be interfered with under Article 226 of the Constitution of India unless the same are demonstrably perverse. The fact that another person would come to a different conclusion on the same evidence is not a ground for interference. What is canvassed before me is purely a question of fact as to whether the establishment was employing 20 or more persons. Further the Act is a beneficial legislation and it is settled law that the provisions of the Act have to be applied liberally. It is not disputed before me that the establishment is statutorily bound to maintain wage registers and attendance registers of the employees. Although the counsel for the petitioners would repeatedly assert that the establishment is maintaining such registers and the same were produced before the 2nd respondent and 1st respondent, there is no evidence anywhere in the documents before me to prove that such registers have been maintained or produced. On the other hand, in Ext.P8 order it is o.p.33680/00 6 stated that the manager of the establishment has deposed before the 2nd respondent that the establishment is not maintaining proper attendance and wage registers. In Ext.P10 appeal memorandum a series of documents have been referred to by the petitioners, in which in paragraph 14 of Ext.P10, it is stated that the appellant establishment started maintaining attendance and wage registers from 1998 since its coverage under the Act. But conspicuously while other documents are stated to have been filed, there is no mention anywhere in Ext.P10 that such attendance and wage registers have been produced before the 2nd respondent or before the 1st respondent. As such, there is nothing before me to prove that the petitioners have been maintaining wage registers and attendance registers. When an establishment statutorily obliged to maintain such registers under threat of penalty, has not produced such registers, an adverse inference has to be drawn against the establishment to the effect that if they are produced, the same would be against the establishment. That itself would go to a great extent to prove the case of the 2nd respondent. Further it is categorically stated in Ext.P8 that when the enforcement officers o.p.33680/00 7 visited the establishment they counted 22 employees on the date of their visit. In the mahazar prepared by the Enforcement Officers names of 29 employees were made mention of. The petitioners could have easily disproved the same by producing the attendance and wage registers which the petitioners has not chosen to do. In the above circumstances, I am unable to accept the contention of the petitioners that the finding that the establishment has employed 20 or more persons is perverse. Since the only question canvassed before me is as to whether the petitioners' establishment was employing 20 or more persons, so as to bring them within the purview of the Act , no other question need be considered in this original petition. Since I cannot find anything wrong with the findings of fact in Ext.P8, the petitioners are not entitled to succeed in this original petition and accordingly the same is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.33680/00 8 S.SIRI JAGAN, J. ================ O.P.No.33680 of 2000-H ================ J U D G M E N T 18th September, 2008