# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS**
## **&**
## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM**
**THURSDAY, THE 27[TH] DAY OF JANUARY 2022 / 7TH MAGHA, 1943**
**WA NO. 950 OF 2021**
**AGAINST THE ORDER DATED 02.07.2021 IN WP(C) 13123/2021 OF HIGH COURT**
## **OF KERALA**
## **APPELLANT (PETITIONER):**
**BABY MEMORIAL HOSPITAL, INDIRA GANDHI ROAD, KOZHIKODE 673 004, REPRESENTED BY THE ASSISTANT GENERAL MANAGER, MOHANAN A**
## **BY ADV P.RAMAKRISHNAN**
## **RESPONDENTS (RESPONDENTS):**
- **1 THE REGIONAL PROVIDENT FUND COMMISSIONER, EPF ORGANIZATION, BHAVISHYANIDHI BHAVAN EERANHIPALAM P.O, KOZHIKODE 673 006**
- **2 CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT, ERNAKULAM, KOCHI 682 016.**
## **BY ADV ABRAHAM P.MEACHINKARA**
**THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
W.A No.950 of 2021
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# **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.**
**=================================**
# **W.A No.950 of 2021**
[ _arising out of the order dated 02.07.2021 in W.P(C) No.13123/2021_ ]
**=================================** Dated this the 27[th] day of January, 2022
## **JUDGMENT**
## **Alexander Thomas, J.**
The appellant has filed the instant Writ Petition (Civil), W.P(C)
No.13123/2021 with the following prayers :
- _“a) A writ of certiorari or any other appropriate writ or order quashing and setting aside Exhibits P-7 and P-10._
- _b) Hold that the trainees of the petitioner's hospital are not employees as defined under Section 2(f) of the Act and are therefore not liable to be brought under the ambit of Employees Provident Fund and Miscellaneous Provisions Act 1952, and_
- _c) issue such other writ, order or direction as are deemed just and proper on the facts and circumstances of the case.”_
2. The interim prayer sought for in the said Writ Petition (Civil) is
## as follows :
_“Pending final decision in the writ petition, it is respectfully prayed that this Honourable Court may be pleased to issue an order staying the operation and implementation of Exhibit P-10.”_
3. The learned Single Judge after hearing both sides has rendered
the impugned interim order dated 02.07.2021 in the above W.P(C) holding
that no case for grant of stay as against the impugned order passed by the
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EPF authorities have been made out in the instant petition and accordingly, the plea for grant of interim stay has been rejected.
4. Being aggrieved by the impugned interim order dated 02.07.2021 rendered by the learned Single Judge rejecting the plea for interim stay of the impugned orders, the writ petitioner has filed the instant _intra court_ appeal under Sec.5(i) of the Kerala High Court Act.
5. Heard Smt.Preethi Ramakrishnan, learned counsel appearing for the appellant in the W.A/petitioner in the W.P(C) and Dr.Abraham P.Meachinkara, learned Standing Counsel for the Employees' Provident Fund Organization (EPFO) appearing for R1. Since R2 is the Industrial Tribunal-cum-Labour Court, notice to that party will stand dispensed with, as it is a quasi judicial Forum, as it is an adjudicatory Forum.
6. The case set up in the above writ proceedings is that the appellant/writ petitioner is a company running a super specialty hospital and that the service conditions of the employees of said hospital are governed by the certified standing orders approved and certified under Sec.5 of the Industrial Employment (Standing Orders) Act, 1946. Further that, a squad of the enforcement officers of the 1[st] respondent-Regional Provident Fund Commissioner of the EPFO, Kozhikode, has conducted inspections at the petitioner's hospital and submitted a report stating that
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the trainees and apprentices engaged at the petitioner's hospital establishment have not been enrolled to the fund. That thereupon, the Assistant Provident Fund Commissioner has issued Ext.P-2 order dated 07.01.2013 holding that the apprentices and trainees appointed under the Standing Orders are not required to become members of the fund. However, subsequently the 1[st] respondent-Regional Provident Fund Commissioner by Ext.P-7 proceedings dated 28.03.2017, has held that the hospital is not an industrial establishment under the Industrial Employment (Standing Orders) Act, 1946 and that the writ petitioner is liable to remit contribution in respect of the trainees and that the said Ext.P-7 impugned order has been upheld by the 2[nd] respondent-Tribunal holding that the petitioner ought to have proved before the 1[st] respondent that the trainees are apprentices and therefore, learners by producing supporting documents. It is contended by the appellant that the impugned Exts.P-7 & P-10 orders are illegal, _ultra vires_ and unsustainable and that the findings of the 1[st] respondent are opposed to facts and the statutory prescriptions in the Act. It is urged by the appellant that the question as to whether the trainees are coverable under the Act is settled by decisions of the Apex Court as well as the decisions of this Court and that the 1[st] respondent has never questioned the status of the trainees and that
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there was no requirement for producing any document to show that the persons concerned were trainees, etc.
7. One of the main contentions urged by Smt.Preethi Ramakrishnan, learned counsel appearing for the appellant is by placing reliance on the judgment of the Apex Court in the case in _**Regional Provident Fund Commissioner, Mangalore** v._ _**Central Arecanut**_
_**& Cocoa Marketing and Processing Co-op. Society Ltd., Mangalore**_ [(2006) 2 SCC 381] and that of this Court in the case in _**Sivagiri Sreenarayana Medical Mission Hospital** v._ _**Regional Provident Fund Commissioner & anr.**_ [2018 (4) KLT 352], where according to the appellant, it has been held that trainees and apprentices, who are basically learners in the job process and who are predominantly engaged to be imparted training and learning the job, will not come under the definition of ' _employee_ ' as per the abovesaid Act and that so long as the said persons are predominantly in the process of learning the job process, they cannot be said to be covered under the provisions of the abovesaid Act. Further that, though inspection was conducted by the officials concerned, no attempt has been made to elicit any statement or information from the trainees and apprentices in the various wings, as to whether they have been engaged predominantly for the purpose of learning
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the job or whether the predominant purpose of the engagement was to extract work from them and that in the absence of cogent factual materials collected in the inspection process to show that predominantly the abovesaid persons have been engaged to extract work from them, there is no question of treating such persons to be coming within the ambit of the coverage of the abovesaid Act, etc.
8. Both sides have been heard on occasions more than one. The learned Standing Counsel for the respondent-EPFO has endeavoured to rebut the abovesaid contentions of the appellant. When the matter had come up for consideration on 05.10.2021, this Court has passed an order in this appeal on that day, which reads as follows :
_“The learned Standing Counsel for the EPF Organization will get specific instructions from the respondent EPFO official concerned as to whether any inspection was conducted prior to the rendering the impugned Ext.P-7 order dated 28.3.2017, and if so, whether the said inspection has revealed that as a matter of fact, the so called trainees are in reality, employees who have been engaged predominantly for the purpose of extracting work from them, and not with the predominant purpose of learning process, and if so, whether copy of said adverse inspection report has been given to the appellants prior to the rendering of Ext.P-7 order._
_2. If any such adverse inspection report is available, then a copy of such inspection report should also be produced before this Court, and if necessary, materials may also be produced to show that copy of adverse inspection report has infact been served on the appellant prior to Ext.P-7 decision, and that the appellant had reasonable opportunity to defend their case as against such adverse inspection report, etc. In the meanwhile, status quo shall be observed as regards the operation and enforcement of the orders impugned in this writ proceedings._
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_4.(sic) The learned Standing Counsel seeks posting of this case to 26.10.2021. List the case in the Admission List on 26.10.2021.”_
9. Smt.Preethi Ramakrishnan, learned counsel for the appellant has taken our attention to the contents of various reports styled as “ _inspection reports_ ”, which according to her would show that no endeavour was made by the Inspection Officers to even ascertain the elementary fact of the matter as to whether the trainees are in reality, employees who have been engaged predominantly for the purpose of extracting work from them, and not with the predominant purpose of learning process and that in the absence of any such relevant information available with the officials of the 1[st] respondent, the impugned orders are not sustainable in law, etc. As mentioned hereinabove, we had also passed an order to maintain _status quo_ as regards the operation and enforcement of the orders impugned in these writ proceedings and the said order has been extended from time to time.
10. Today when the matter has been taken up for consideration, we suggested both sides that since the matter is arising out of an interim order passed by the learned Single Judge, there may not be any necessity for us sitting as Division Bench to get into the merits of the controversy and that the interest of justice would be subserved by directing that the main matter
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in the Writ Petition (Civil) may be finally disposed of by the learned Single Judge, without much delay, preferably within a period of three months or so and that the operation and enforcement of the impugned orders at Exts.P-7 & P-10, may be kept in abeyance for a period of three months, etc.
11. After hearing both sides, it appears that both sides does not appear to have serious objections to the said course of action, because of Covid-19 pandemic issues, a full-fledged hearing in this appeal may not be feasible and to extent the interim order from time to time and to keep this appeal pending, may not be necessary if the abovesaid course of action is adopted. Accordingly, it is ordered that the Registry may list this Writ Petition (Civil) before a Single Judge Bench exclusively dealing with hearing matters, if available, so as to ensure that the main matter in the writ petition is disposed of, without much delay, preferably within a period of three months or so. Further, it is also ordered in the interest of justice that the operation and enforcement of the impugned Exts.P-7 & P-10 orders, may be kept in abeyance for a period of three months. If for any reason, it is not feasible for the learned Single Judge to finally dispose of the main matter in the W.P(C) within the above time limit, then it will be open to the appellant to move the learned Single Judge for extension of the abovesaid interim order beyond the period of three months, which then may be considered, if so
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required. The impugned order of the learned Single Judge, refusing to grant interim stay in the W.P(C), will stand modified as above.
With these observations and directions, the above Writ Appeal will stand finally disposed of.
## **Sd/-**
## **ALEXANDER THOMAS, JUDGE**
**Sd/-**
**VIJU ABRAHAM, JUDGE**
vgd
