IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.VINOD CHANDRAN MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933 OP.No. 11978 of 2003(A) ----------------------- PETITIONERS: --------------- 1. T.V. CHANDRASEKHARA WARRIER, ASSISTANT MANAGER, SREE THIRUMANDHAMKUNNU BHAGAVTHY DEVASWOM, ANGADIPURAM, MALAPPURAM DISTRICT 2. T.P. MANIKANDAN, LOWER DIVISION CLERK SREE THIRUMANDHAMKUNNU BHAGAVTHY DEVASWOM, ANGADIPURAM, MALAPPURAM DISTRICT 3. P.P. SUDHEER EMBRANTHIRI, KEEZHSHANTHI, SREE THIRUMANDHAMKUNNU BHAGAVTHY DEVASWOM, ANGADIPURAM, MALAPPURAM DISTRICT BY ADV. SRI.V.RAJENDRAN RESPONDENT(S): --------------- 1. THE TRUSTEE, SREE THIRUMANDHAMKUNNU BHAGAVTHY DEVASWOM, ANGADIPURAM, MALAPPURAM DISTRICT 2. THE COMMISSIONER, H.R.& C.E. (ADMN.) DEPARTMENT CIVIL STATION, KOZHIKODE 3. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT DEVASWOM DEPARTMENT, THIRUVANANTHAPURAM ADV. SRI.K.M.SATHYANATHA MENON FOR R1 SRI.K.MOHANAKANNAN,SC,MALABAR DEVASWOM GOVERNMENT PLEADER SRI. S. ABDUL SALAM FOR R2 & R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 21/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 11978 of 2003(A) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE LETTER OF THE ENFORCEMNET OFFICER, E.P.F. CALICUT EXT.P2 : TRUE COPY OF THE LETTER DT. 17.11.1998 OF THE 1ST RESPONDENT TO 2ND RESPONDENT EXT.P3 : TRUE COPY OF LETTER DT. 22.12.1998 OF THE 2ND RESPONDENT EXT.P4 : TRUE COPY OF THE JUDGMENT DT. 13.4.2000 IN O.P. NO.616/99 EXT.P5 : TRUE COPY OF THE ORDER DT. 3.6.2000 IN R.P NO.185/2000 IN O.P.NO.6156/99 EXT.P6 : TRUE COPY OF REPRESENTATION DT 21.7.2000 BY THE EMPLOYEES OF THE 1ST RESPONDENT EXT.P7 : TRUE COPY OF ORDER DATED 28.1.2000 OF THE 3RD RESPONDENT RESPONDENTS' ANNEXURES: NIL //TRUE COPY// jma K.Vinod Chandran, J. ---------------------------------------- W.P.(C).No.11978 of 2003-A ---------------------------------------- Dated this, the 21st day of November, 2011 JUDGMENT The petitioners, who are employees of Sree Thirumandhamkunnu Bhagavathy Devaswom, challenge Exhibit P7 order, by which the request of the employees of the temple for introduction of the Employees Provident Fund and Miscellaneous Provisions Act (hereinafter, for brevity, referred to as “the EPF Act”) and the Scheme made thereunder in the Sree Thirumandhamkunnu Bhagavathy temple was rejected by the Government. 2. The facts as stated by the learned counsel for the petitioner is that Exhibit P1 was a communication of the Enforcement Officer, Employees Provident Funds, Calicut stating that since the inclusion of the Devaswom is not mandatory under the EPF Act, the provisions of the Act can be applied only if the majority of the employees and the employer give consent to the scheme. In pursuance of the same and by virtue of the agreement of the majority of employees as also the employer, i.e., the trustees of the Sree Thirumandhamkunnu Bhagavathy Devaswom, an application was given to the Commissioner, Hindu Religious and Charitable Endowments (Administration) Department for introduction of the Scheme, since the Hindu Religious and Charitable Endowments Act (for short “HR&CE Act”) mandated the approval of the Commissioner in cases where there were financial implications cast on the Devaswom. The Commissioner having rejected the request by Exhibit P3, OP.No.11978/2003-A - 2 - the employees of the Devaswom approached this Court by filing O.P.No.6156 of 1999, which was disposed of directing the petitioners therein to file a representation before the Government and also directing the Government to consider the same and pass appropriate orders. It is also brought to my notice that the observation in Exhibit P4 that one of the temples alone cannot be taken to be covered under the EPF Scheme has been declared to be not relevant in so far as the consideration of the Government is concerned. This is rightly so since in any event the EPF Act can be applied only if both the employer and the employees agree and to say that there will be a plea from the side of all the temples is not at all relevant since many of them may not have the financial capacity to make such a claim. It is also evident that the Government has no financial implications in the above matter. Subsequently, in compliance with the directions of the learned Single Judge, Exhibit P6 representation was filed before the Government, which was rejected as per Exhibit P7. 3. The first respondent, the employer, supports the petitioners. The 2nd respondent though is shown as the Commissioner, HR & CE (Administration) Department, Civil Station, Kozhikode, on the constitution of the Malabar Devaswom Board by Act 31 of 2008, the Devaswom Board is deemed to be the 2nd respondent and the Standing Counsel for the Malabar Devaswom Board Shri.K.Mohana Kannan appears and contends that there OP.No.11978/2003-A - 3 - is already a Welfare Fund Scheme in the temple applicable to 50 out of the 51 members of the temple in question. It is also submitted that the Scheme is applicable to all the temples under the Malabar Devaswom Board. The Government, 3rd respondent, supports the stand of the Malabar Devaswom Board and has also filed a counter affidavit to that effect. 4. The petitioners' counsel, however, would say that Exhibit P7 was passed even before the constitution of the Malabar Devaswom Board and that he would confine the relief to seeking a direction to the Board for consideration of their request on merits on the facts and circumstances that exist today. It is also submitted by the learned counsel for the petitioners that though the contention of a uniform scheme is taken by the respondent-State as also the Board, it is also admitted in the additional counter affidavit dated 20.11.2007 that EPF & MP Act has been extended to the employees of the Sreekanteswara Temple without, however, information or sanction of the Department. The learned counsel for the Board would then say that there is a distinction between the said temple and the temple in which the petitioners are employees. 5. The disputed facts cannot be decided by this Court, since the materials are not before this Court. However, considering the fact that Exhibit P7 had contemplated the constitution of a Board and the request of the petitioners with reference to the present situation has not been OP.No.11978/2003-A - 4 - considered by the Board till now, I feel, the writ petition can be disposed of with a direction to the Malabar Devaswom Board, constituted under Act 31 of 2008, who is competently substituted for the 2nd respondent by a statutory enactment, to consider the representation made by either the employees or the employer, i.e., the trustees of the Sree Thirumandhamkunnu Bhagavathy Devaswom, if such a representation is made within a period of one month from today. The same shall be considered within a period of two months from the date of submission of the representation. I make it clear that this Court has not made any observation with regard to the merits of the claim or with regard to the rejection of the claim of the petitioners by the Government. The writ petition is disposed of accordingly. K.Vinod Chandran, Judge. vku/- OP.No.11978/2003-A - 5 - K.Vinod Chandran,J. O.P.No.11978 of 2003-A JUDGMENT 21st November, 2011.