IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 WP(C).No. 25654 of 2011(F) -------------------------- PETITIONER(S): ----------------------- EMPLOYEES' PROVIDENT FUND ORGANISATION, REPRESENTED BY THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, SUB REGIONAL OFFICE, KALOOR, KOCHI 682017. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SMT.T.N.GIRIJA, SC,EPF ORGANISATION RESPONDENT(S): ------------------------ 1. THE EMPLOYEES PROVIDENT FUNDS APPELLATE TRIBUNAL, NEW DELHI 110001. 2. C.RADHAKRISHNAN, MANAGING PARTNER, M/S LAKSHMI NURSING HOME, HOUSE NO.114, WASRD NO: VIII, MAJEED MARAKKAR ROAD, PERUMBAVOOR, ERNAKULAM DT 682016. 3. THE DIRECTOR, M/S.LAKSHMI HOSPITAL, DIWAN'S ROAD, ERNAKULAM 682016. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.25654/11 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE COVERAGE NOTICE DT 25/8/1988. EXT.P2: TRUE COPY OF THE LIST OF EMPLOYEES SUBMITTED by the 2ND RESPONDENT DATED 28.10.1987. EXT.P3: TRUE COPY OF THE ORDER UNDER SECTION 7A DT 13.5.1996. EXT.P4: TRUE COPY OF ORDER OF THE 1ST RESPONDENT TRIBUNAL INCASE NO. S 35011/7(16)96/PFC. EXT.P5: TRUE COPY OF THE JUDGMENT DT 1.9.2005 IN OP NO.6924.1998. EXT.P6: TRUE COPY OF THE ORDER PASSED BY THE PETITIONER UNDER SECTION 7A OF THE ACT DT 9.3.2010. EXT.P7: TRUE COPY OF THE APPEAL MEMORANDUM WITHOUT ITS ANNEXURE FILED BY THE 2ND RESPONDENT AS A.T.A.361(7).2010. EXT.P8: TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT TRIBUNAL IN A.T.A.361(7).2010 DT 25.3.11. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 25654 OF 2011 ===================== Dated this the 27th day of September, 2011 J U D G M E N T Employees' Provident Fund Organisation is the writ petitioner. The writ petition has been filed challenging Ext.P8 order passed by the 1st respondent Tribunal disposing of Ext.P7 appeal filed by the 2nd respondent. 2. Shortly put, the facts of the case are that, by Ext.P6 order passed by the petitioner exercising its powers under Section 7A of the EPF & MP Act, 1952, the 2nd respondent was held liable for coverage under the Act on the premise that it was employing 21 employees. This included 3 consulting doctors. Contending that the consultant doctors are not employees as defined in Section 2(f) of the Act and therefore the employees strength is only 18, which is below the minimum requirement 20 to be covered under the Act, 2nd respondent filed Ext.P7 appeal to the 1st respondent Tribunal. By Ext.P8 order, the 1st respondent Tribunal allowed the appeal and held that the consultant doctors are not liable to be covered. It is this order which is under challenge. WPC No. 25654/11 :2 : 3. The relevant portion of Ext.P8 order is paragraph 6, which reads as under:- “6. The burden to prove that the staff strength of the establishment never reached 20 lies on the appellant. In the case of M/s Saraswati Construction Company vs. Central Board of Trustees reported in 2010 LLR at page 684, the Hon'ble High Court of Delhi held that, “it is a settled legal position that if any establishment or employer is not covered under the said Act then it is for the employer to place sufficient cogent and convincing materials before the designated authority under an inquiry under Section 7A of the Act so as to satisfy the authority with regard to inapplicability of the Act and on failure to place any such material the onus cannot be shifted on the authority to prove the applicability of the Act”. In this case, the order of the Authority reveals that the appellant engaged 18 employees and 3 are visiting doctors so taking these employees and the visiting Doctors together the staff strength comes to 21. The Hon'ble High Court of Kerala in O.P.No.6924 of 1998 specifically held that the visiting doctors are not the employee of the appellant. So the 3 visiting Doctors are to be excluded from the staff strength and if these are excluded the staff strength come to below 20. So, the Act is not applicable to the appellant”. 4. A reading of this order shows that the Tribunal has mainly relied on the judgment of this Court in OP No.6924/98, a copy of which is Ext.P5. In Ext.P5, dealing with the applicability of the consulting doctors (visiting doctor), it was held thus:- “Learned counsel for the petitioner further submits that if there is a visiting Doctor, such Doctor is not liable to be counted for the purpose of staff strength. This apprehension of the petitioner is without any basis. By WPC No. 25654/11 :3 : the very expression visiting Doctor, it would only show that he visits and he goes and he does not have any integral connection with the establishment in the matter of determination of staff strength, since, such visiting Doctors do not in any way become the employees of the establishment.” 5. This observation, as rightly held by the Tribunal, indicates that, even as per the said judgment, consultant doctors are liable to be excluded from the purview of the expression “employee” as defined in Section 2(f) of the Act. 6. That apart, in Ext.P7 order issued by the petitioner, the reasoning to include the consultant doctors also as employees reads as follows:- “The establishment M/s.Lakshmi Nursing Home, Perumbavoor being a Nursing Home covered under the Schedule head “Hospital” was rendering medical service and the role of Doctors is inevitable. Only when the doctor is available the patients are visiting the hospital for taking the treatment from the Doctors so available in the Hospital for the illness. Let us imagine that there is no services of a doctor is available in a hospital, will there be a client/patient to the hospital. Naturally this will lead to the conclusion that the doctors whether they are called consulting doctors or otherwise forms the pillar of the Hospital Establishments. Such is the case that the doctors whether consultant doctors or otherwise is certainly employed in connection with the work of the establishment and falls within the definition of employee under section 2(f) of the EPF & MP Act, 1952, eventhough such doctors' visit to the hospital/availability in the hospital may be restricted to a certain hours for a day. This position was also WPC No. 25654/11 :4 : upheld by the various Hon'ble High Courts in Satish Plastics v. The Regional Provident Fund Commissioner 1981(XXII) GLR 686, S.P.Abdul Rahim and Son v. Regional Provident Fund Commissioner and another 1996(1) LLJ. 1134: 1996 LIC 2547: Ahmedabad Co- operative Department Stores Ltd. v. Union of India and another 1997(2) CLR.123 holding that “The definition of “employee” as it contained in Sec.2(f) of the Act is wide enough to take within its sweep a person permitted to work at his residence as well and further that even if a person is not wholly employed, but was principally employed in connection with the business of the shop, would be a person employed within the meaning of the statutory language”. 7. Further, it is also stated that the consultant doctors have signed muster roll for the period from 1/87 to 1/88. In my view, the fact that a doctor is available in a hospital or that the doctor is available for consultation for patients or that the doctor has signed the muster roll by itself cannot determine his status as an employee as defined in the Act. The term “employee” which is defined in Section 2(f) means, any person which is employed for wages in any kind of work, and who gets his wages directly or indirectly from the employer. Therefore, the fact of employment and payment of wages whether direct or indirect for the work done, is what makes the person, an employee. In Ext.P6, petitioner has not appreciated the case of the consultant doctors in the aforementioned manner to decide as to whether WPC No. 25654/11 :5 : consultant doctors are employees as defined in Section 2(f). Therefore, in my view, the Tribunal has rightly interfered with Ext.P6. Writ petition fails and is dismissed. ANTONY DOMINIC, JUDGE Rp