IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 20548 of 1998(U)
1. MERCY HOSPITAL
... Petitioner
Vs
1. UNION OF INDIA
... Respondent
For Petitioner :SRI.C.P.MOHAMMED NIAS
For Respondent :SRI.MATHEWS J.NEDUMPARA, SC,P.F.ORGSN.
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :24/11/2009
O R D E R
S. Siri Jagan, J.
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O.P. No. 20548 of 1998
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Dated this, the 24th November, 2009.
J U D G M E N T
A hospital, which has been directed to be covered under the
Employees Provident Funds and Miscellaneous Provisions Act and its
managing partner, have come up with this original petition
challenging Ext. P1 order of coverage and Ext. P2 order of the
Appellate Tribunal confirming Ext. P1.
2. When notice of proceedings for coverage was received from
the 2nd respondent, the managing partner objected to the same on the
ground that the hospital does not employ 20 or more persons so as to
be liable to be covered under the Act. Therefore, proceedings under
Section 7A was initiated, which led to Ext. P1 order. Ext. P1 order is
solely based on a list of employees signed by the working partner of
the hospital, wherein the names of 22 employees have been shown. In
the 7A proceedings , that working partner gave evidence to the effect
that the list included the names of employees of a scan center and a
telephone booth working in the same premises. According to the
working partner, he mistakenly gave the names of the employees of
the scan center and the telephone booth also. He submits that he has
very serious problems of eye sight and he is almost blind. However,
the 2nd respondent did not accept the evidence of the working partner
and relied upon the very same list signed by the working partner,
which he later retracted from, to pass Ext. P1 order. The appeal filed
by the petitioner was rejected by Ext. P2 order again relying on the
very same list of employees. The petitioner is challenging Exts.P1 and
P2 orders.
3. The contention of the petitioners is that the hospital never
employed 20 or more persons at any time and therefore is not liable to
be covered under the Act. They submit that apart from the retracted
list signed by the working partner, who was almost blind, there was
O.P.. No. 20548/1998 -: 2 :-
absolutely no evidence whatsoever available to the 2nd respondent to
come to the conclusion that the hospital employed 20 or more persons
at any time. The petitioners would submit that the orders based on
such totally inadequate material cannot be sustained.
4. With the help of a counter affidavit, the 2nd respondent
opposes the prayers in the original petition. According to him, the
working partner was subjected to cross examination while giving
evidence and serious discrepancies were noted in his evidence and
therefore he was disbelieved. He would submit that insofar as the
working partner himself gave l names of 22 persons as employees of
the hospital, there is absolutely no reason why the same should not
be adopted as the basis for covering the establishment under the Act.
He would therefore argue for sustaining the impugned orders.
5. I have considered the rival contentions in detail.
6. I am surprised that no serious attempt was made by the 2nd
respondent to bring in sufficient evidence to prove their case when
the managing partner, who gave the list, which is the sole basis of the
decision, retracted from the same. The enforcement officer who
visited the hospital could very well have interviewed the employees
whose names were given by the working partner and ascertained
directly from them as to whether they are employees of the hospital.
Not even an attempt was made by the 2nd respondent to ascertain and
place before this Court as to the size of the hospital. Not even the
number of the beds in the hospital has been brought on record. The
facilities in the hospital have not been attempted to be brought on
record. They are solely relying on a list prepared on the instruction of
a working partner, who admittedly had very serious eye sight
problems. The 2nd respondent cannot even tell me in whose hand
writing Ext. P4 has been prepared. He has not been able to tell me
whether it was in the handwriting of the working partner. The 2nd
O.P.. No. 20548/1998 -: 3 :-
respondent has not made any attempt to ascertain who owns the scan
center and the telephone booth working in the same premises. When
the petitioner claimed that the scan center and the telephone booth
are unconnected with the hospital and Ext. P4 contains the names of
employees of the scan center and the telephone booth also, the 2nd
respondent had a duty to verify the correctness of that statement and
bring on record sufficient evidence in support of the conclusion that
the establishment employed 20 or more persons instead of simply
relying on a list prepared at the instance of a blind man, which was
retracted by him on oath before the 2nd respondent while giving
evidence. The 2nd respondent has no case that there is any indication
in the records of the hospital to the effect that the number of
employees in the hospital is 20 and above. Therefore, I am of opinion
that on such flimsy evidence, the 2nd respondent could not have come
to the conclusion that the establishment employed 20 or more
persons.
In view of the above findings, Exts.P1 and P2 are
unsustainable. Accordingly, they are quashed. However, it would be
open to the 2nd respondent to re-consider the matter and pass fresh
orders, after bringing in sufficient evidence to show that the
establishment had actually employed 20 or more persons at the
relevant time.
The original petition is disposed of as above.
Sd/- S. Siri Jagan, Judge.
Tds/