IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 OP.No. 5347 of 2000(J) ---------------------- PETITIONER: ------------ DR. JOYCE MAMMEN, MANAGING PARTNER, GOSPEL MEDICAL CENTRE, KALLISSERY P.O., CHENGANNUR, RESIDING IN KANDATHIL HOUSE, PUTHENCAVU, CHENGANNUR, CHRISTIAN, AGED 60. BY ADV. SRI.C.S.BALAGANGADHARAN SRI.P.RAMAKRISHNAN RESPONDENTS: ------------- 1. REGIONAL PROVIDENT FUND COMMISSIONER, BHAVISHYANIDHI BHAVAN, P.B.NO.1016, PATTOM, THIRUVANANTHAPURAM. 2. UNION OF INDIA, MINISTRY OF LABOUR, REPRESENTED BY IT'S SECRETARY, CENTRAL SECRETARIAT, NEW DELHI. 3. TAHSILDAR, CHENGANNUR. ADDL. 4. THE REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION SUB REGIONAL OFFICE, 36/685 A, BHAVISHYANIDHI BHAVAN, P.B. NO. 1895, KALOOR, ERNAKULAM, KOCHI 682 017 ADDL. R4 IS IMPLEADED AS PER ORDER DATED 23.1.2006 ON CMP 13439 OF 2000 R1 AND R4 BY ADV. SRI.N.N.SUGUNAPALAN (SR.) THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 22/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 ORDER ON CMP 8847 OF 2000 IN OP 5347 OF 2000 DISMISSED 22.5.2008 SD/-C.N.RAMACHANDRAN NAIR, JUDGE. APPENDIX PETITIONER'S EXHIBITS: EXT.P1 DATED 22.9.1987 TRUE COPY OF THE JUDGMENT PASSED BY THE HON'BLE HIGH COURT IN OP 194 OF 1985 FILED BY THE PETITIONER. EXT.P2 DATED 25.2.1988. TRUE COPY OF THE JUDGMENT PASSED BY THE HON'BLE HIGH COURT DISMISSING WRIT APPEAL NO,.1016 OF 1987 FILED BY THE FIRST RESPONDENT IN THE O.P. EXT.P3 DATED 24.6.1997. TRUE COPY OF THE ORDER PASSED BY THE HON'BLE DIVISION BENCH OF THIS HON'BLE HIGH COURT ALLOWING CMP 3996 OF 1995 FILED BY THE PETITIONER. EXT.P4 DATED 19.5.1988 TRUE COPY OF THE PROCEEDINGS PASSED BY THE ASST. REGIONAL PROVIDENT FUND COMMISSIONER, THIRUVANANTHAPURAM, RECORDING HIS FINDING THAT THE ST. ANDREWS HOSPITAL STARTED BY THE PETITIONER IN 1968 IS A CONTINUATION OF A PREVIOUS HOSPITAL THAT WAS CONDUCTED IN THE SAME BUILDING. EXT.P5 DATED 2.11.1993 TRUE COPY OF THE NOTICE ISSUED TO THE PETITIONER BY THE OFFICE OF THE REGIONAL PROVIDENT FUND COMMISSIONER, THIRUVANANTHAPURAM. EXT.P6 DATED 5.7.1993 TRUE COPY OF NOTICE ISSUED BY THE OFFICE OF THE FIRST RESPONDENT TO THE PETITIONER DEMANDING TO PAY RS. 2,14319-20 TOWARDS PROVIDENT FUND OF THE EMPLOYEES OF ST. ANDREWS HOSPITAL FOR THE PERIOD BETWEEN 1978 AND 1983. EXT.P7 DATED 2.4.1993. TRUE COPY OF THE REPLY SENT BY THE PETITIONER TO THE FIRST RESPONDENT. RESPONDENTS' EXHIBITS:NIL. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- O.P. NO. 5347 OF 2000 -------------------------------------------- Dated this the 22nd day of May, 2008 JUDGMENT This is the second round of O.P. filed by the petitioner claiming infancy protection under the provisions of the Provident Funds Act. Petitioner's case is that petitioner took the building on lease from the Church which owns it and started hospital from June, 1978 on wards. Petitioner claimed infancy protection for the first five years and offered to pay contribution from 1983 onwards. However, the claim for infancy protection was declined as the hospital was previously run in the building taken over by the petitioner. In other words first respondent took the view that establishment continued and petitioner is only a management which came in between. The challenge to the first order led to Ext.P1 judgment. Writ Appeal though filed was dismissed vide Ext.P2 judgment. This Court directed furnishing of bank guarantee for arrears from 1978 onwards and further directed the first respondent to consider petitioner's claim for infancy protection from 1978 to 1983. Pursuant to the direction issued by this Court, Ext.P4 2 order was passed by the first respondent, which is under challenge in this O.P. 2. Even though counsel for the petitioner contended that petitioner started hospital with their own equiments and employees, it is seen from Ext.P4 that when petitioner was given an opportunity to furnish documents and adduce evidence to establish his case, he stated before the first respondent that he had nothing more to say . Even the lease deed under which petitioner has taken over the building is not produced in this Court to establish the terms of lease. The facts found by the first respondent are that hospital was run in the very same building for a long period and remained closed on and off. However, when the petitioner took over the building, hospital was running in that building and it had hospital equipments. It is not clear from any orders or in the O.P. whether the hospital building taken over by the petitioner on lease was with the employees, who were earlier working in the hospital, previous name of which was Andrew Hospital. Even though petitioner is controverting the findings on facts by the first respondent in Ext.P4, I find that even after one round of litigation, petitioner did not adduce any evidence but wanted the first respondent to decide the 3 matter based on facts on record. First respondent has taken in to account evidence furnished by the Church authorities which let out the building to the petitioner on lease wherein the Church has reconfirmed that the building was given on lease with hospital which was already in existence, and it was taken over with furniture, fixturers , equipments, etc. The institution at the time of taking over by the petitioner was already covered by the provisions of the Act and since petitioner continued that establishment and did not start any new hospital, the first respondent rightly held that petitioner is not a new establishment entitling for infancy protection. I do not find anything wrong in this finding, because evidence goes toshow that business carried on by the petitioner is only a continuation of the hospital business that was run in the same building, that was taken over by the petitioner. O.P. therefore fails and is dismissed. (C.N. RAMACHANDRAN NAIR) Judge kk 4