Warden, College of Horticulture, Kerala Agricultural University v. Regional Provident Fund Commissioner, Employees' Provident Fund Organisations

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR THURSDAY, THE 26TH DAY OF MAY 2016/5TH JYAISHTA, 1938 WP(C).NO. 23586 OF 2005 (G) ---------------------------- PETITIONER(S): ------------- WARDEN, COLLEGE OF HORTICULTURE, KERALA AGRICULTURAL UNIVERSITY,, VELLANIKKARA, THRISSUR-680 654. BY ADVS.SRI.N.D.PREMACHANDRAN SRI.D.AJITHKUMAR SRI.K.RAJESH SRI.RENJITH THAMPAN,SC,KERALA AGRL.UTY SRI.BABU JOSEPH KURUVATHAZHA,SC, KERALA AGRIC UNIVERSITY RESPONDENT(S): -------------- THE REGIONAL PROVIDENT FUND COMMISSIONER EMPLOYEES PROVIDENT FUND ORGANISATIONS,, SUB REGIONAL OFFICE, BHAVISHIYA NIDHI BHAVAN,, P.B.NO.185, KALOOR, KOCHI-682 017. R1 BY ADV. SRI.S.GOPAKUMARAN NAIR (SR.) R1 BY ADV. SRI.M.CHANDRA BOSE BY SRI.S.GOPAKUMARAN NAIR, SC, P.F. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **APPENDIX** ## **WP(C).NO. 23586 OF 2005 (G)** **PETITIONER'S EXHIBITS:** **EXT.P1: TRUE COPY OF RULES PRESCRIBED FOR HOSTELS ATTACHED TO COLLEGES/INSTITUTIONS UNDER THE UNIVERSITY** **EXT.P2: TRUE COPY OF NOTICE NO.KR/KC/13801/ENF.2(7)/94/5785 DTD. 17.10.1994 ISSUED BY THE RESPONDENT** **EXT.P3: TRUE COPY OF SUMMONS DATED 23.06.1995 ISSUED BY THE RESPONDENT TO THE PETITIONER** **EXT.P4: TRUE COPY OF OBJECTION DATED 21.08.1995 SUBMITTED BY ASST.WARDEN, HORTICULTURAL COLLEGE MENS HOSTEL, VELLANIKKARA BEFORE THE RESPONDENT** **EXT.P5: TRUE COPY OF OBJECTION DATED 21.08.1995 SUBMITTED BY ASST.WARDEN, HORTICULTURAL COLLEGE MENS HOSTEL, VELLANIKKARA BEFORE THE RESPONDENT** **EXT.P6: TRUE COPY OF ORDER NO.KR/KC/13801 & 13818/ENF II (2)/95/7848 DATED 5.1.1996 ISSUED BY THE RESPONDENT TO THE PETITIONER** **EXT.P7: TRUE COPY OF JUDGMENT DATED 2.12.2002 IN O.P.NO.10202/1996 OF THIS HON'BLE COURT** **EXT.P8: TRUE COPY OF THE ORDER DATED 26.2.2005** **EXT.P9: TRUE COPY OF THE JUDGMENT IN W.A.NO.1225 OF 1995** **EXT.P10: TRUE COPY OF THE ORDER NO.GA/F3/8841/94 DATED 24.8.05 OF AGRICULTURAL UNIVERSITY** **RESPONDENTS' EXHIBITS:** **ANNEXURE R1: TRUE COPY OF THE COMMUNICATION ISSUED BY THE AGRL.UNIVERSITY** **//TRUE COPY//** **P A TO JUDGE** **A.K.JAYASANKARAN NAMBIAR, J. ............................................................. W.P.(C).No.23586 of 2005 ............................................................. Dated this the 26[th] day of May, 2016** ## **J U D G M E N T** The petitioner in the writ petition is a Warden of the College of Horticulture, which is a constituent College of the Kerala Agricultural University. In the writ petition, it is aggrieved by Exts.P6 and P8 orders that were passed by the Regional Provident Fund Commissioner, Kochi, the original authority, and the Employees Provident Fund Appellate Tribunal, New Delhi, the appellate authority respectively, in a matter concerning the issue as to whether the employees working in the messes attached to the men's and women's hostels of the College would come under the coverage of the Employees Provident Fund and Miscellaneous Provisions Act (hereinafter referred to as the EPF Act), 1952. Both the authorities below have found that, inasmuch as the staff attached to the men's and women's hostel mess came under the administrative control and supervision of the Warden of the College, the said warden, would have to be treated as the common employer in respect of both the messes and the number of -2- ## W.P.(C). No.23586 of 2005 employees in both the messes would have to be clubbed while determining whether the total strength of employees for the purposes of Section 1 (3) of the EPF Act was more than 20, so as to bring them under the coverage of the said Act. 2. The brief facts necessary for the disposal of the writ petition are as follows: The College of Horticulture under the Kerala Agricultural University has two hostels - one for ladies and the other for men. The direct supervision of each hostel is under an Assistant Warden functioning in each of the said hostels. The administration of the hostel is in terms of Ext.P1 Rules that have been framed for administration of the student hostels attached to Colleges/institutions under the Kerala Agricultural University. It is stated that both, the men's hostel as well as the ladies hostel, of the Horticultural College consists of 14 mess servants each, and if these hostels were taken as independent units, then the total number of mess servants in each unit was less than 20, which was the prescribed number for bringing the units under the coverage of the EPF Act. By Ext.P2 notice dated 17.10.1994, the petitioner was called upon to pay contribution payable under the Act for the period from 01.12.1990 to 30.07.1994. The said notice was -3- W.P.(C). No.23586 of 2005 followed by Ext.P3 summons, which required the petitioner to appear before the respondent under Section 7A of the Act. On receipt of the said notices and summons, the petitioner submitted detailed written objections contending, inter alia, that the hostels attached to the College would not come within the ambit of the EPF Act for the purposes of effecting any contribution under the said Act. The objections submitted by the petitioner are produced as Exts.P4 and P5. The respondent adjudicating authority, by Ext.P6 order, rejected the contentions of the petitioner and found that the two hostels attached to the Horticultural College have to be treated as a single unit for the purposes of coverage under the Act, and therefore, confirmed the demand of contribution from the petitioner in respect of the said hostels. Although, the petitioner impugned the said order of the respondent before this Court in O.P.No.10202 of 1996, this Court relegated the petitioner to the Employees Provident Fund Appellate Tribunal to pursue its appellate remedy against Ext.P7 order. Ext.P8 is the order dated 26.02.2005 of the Appellate Court, which is impugned in the present writ petition. As already noted, by Ext.P8 order, the appellate authority confirmed the findings of the original authority holding that the employees working in the messes attached to the -4- W.P.(C). No.23586 of 2005 men's and ladies hostels had to be considered as employees of the petitioner in terms of section 2(f)(1) of the EPF Act, and therefore, the petitioner would have to pay the contribution required under the Act in respect of the said employees. 3. A statement has been filed on behalf of the respondent wherein the orders of the adjudicating authority as well as the Appellate Tribunal are sought to be justified on the reasons stated therein. Reference is also made to Annexure-1 communication issued by the Kerala Agricultural University to the respondent intimating that the University authorities have issued necessary directions to the petitioner to comply with the provisions of the Act in respect of the mess employees. It is also pointed out that messes, with the exception of military messes, were brought under the purview of the Act with effect from 31.03.1973 as per the Government of India Notification No.299 dated 24.03.1973. Reliance is also placed on the decision of the Supreme Court in **Osmaniya University v. Regional Director, Employees' State Insurance Corporation, Andhra Pradesh and Others [(1985) 4 SCC 514]** in the context of Osmaniya University and **Andhra University v. Regional Provident Fund Commissioner and** -5- W.P.(C). No.23586 of 2005 **Another [(1985) 4 SCC 509]** in the context of Andhra University in support of the contention that the hostels attached to the University would come under the coverage of the EPF Act. 4. I have heard the learned counsel for the petitioner and the learned Standing counsel for the respondent. 5. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that the main contention of the learned counsel for the petitioner, in his challenge to the findings in Exts.P6 and P8 orders of the adjudicating authority and the appellate authority, is premised on the definition of 'employee' under Section 2 (f) of the EPF Act, the said definitions reads as under: “(f) “employee” means any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment, and who gets, his wages directly or indirectly from the employer, and includes any person,- (i) employed by or through a contractor in or in connection with the work of the establishment; (ii) engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961 (52 of 1961), or under the standing orders of the establishment;” -6- W.P.(C). No.23586 of 2005 1.The learned counsel for the petitioner would contend that a reading of the definition would indicate that an employee is one who gets his wages directly or indirectly from the employer and includes any person employed by or through a contractor in or in connection with the work of the establishment. It is pointed out that in the case at hand, the mess servants attached to the messes in the men's and women's hostels respectively, are paid their wages by the respective Mess Committees constituted in accordance with the Rules. It is his contention, therefore, that inasmuch as it is not the Warden, who is paying the wages either directly or indirectly to the employees of the mess, the Warden cannot be treated as the employer and accordingly, the persons engaged cannot be treated as employees of the said Warden. It is further pointed out that, in the alternative, even if the Warden is to be treated as the employer for any particular mess, the mess attached to the men's hostel is different and distinct from the mess attached to the ladies hostel, and therefore, the two messes should be treated as separate units without any functional integrity for the purposes of the Act, and viewed in that perspective, the number of employees in each mess being less than 20, the messes -7- W.P.(C). No.23586 of 2005 would not come under the coverage of the EPF Act. It is further highlighted that the employees in each mess are appointed by the Mess Committee constituted under the Rules and although, the Rules do contemplate certain powers, with regard to termination of services of the employees, in the Warden, the fact remains that the appointing authority in respect of the employees is the Mess Committee which is separate for each of the hostels. The learned counsel would also rely on Ext.P9 judgment of the Division Bench of this Court which holds that the employees of the mess attached to the hostel of the College cannot be treated as employees of the University for the purposes of the benefits under the service Rules pertaining to the University. Per contra, it is the submission of the learned counsel for the respondent that in Ext.P1 Rules, which have been framed by the University, and which govern the administration of student hostels attached to the Colleges/institutions under the Kerala Agricultural University, it is clearly stated that the hostels in each College shall be under the direct control of the Dean/Associate Dean/Head of the institution, who will be the Warden. Reliance is also placed on Rules 10, 12 and 13 to contend that the Warden of the hostel plays an important role in the administration of the mess by the Mess Committee and -8- W.P.(C). No.23586 of 2005 the appointment of mess servants is made subject to the approval of the Warden. It is also pointed out that the Rules mandate that the Warden shall be competent to discharge all or any of the mess servants if he satisfied that the discipline/cleanlinesses and/or conduct of the mess servants are not satisfactory, or if their continuance to the hostel mess is considered injurious to the students of the hostel or College or the institute. The Rules also make it abundantly clear that the Warden shall be the disciplinary authority in all cases where disciplinary action is contemplated against the mess servants. The said provisions in the Rules are highlighted to contend that the findings in Exts.P6 and P8 orders are legal and justified and the said orders do not call for any interference in these proceedings. The learned counsel would also place reliance on the judgment dated 20.03.2009 of a learned Single Judge in O.P.No.6786 of 2000 wherein, taking note of the Government Order that had been issued directing the principals of Medical Colleges in Kerala State to comply with the EPF Act in respect of employees employed in the messes attached to the hostels in the Medical College, this Court found that the Colleges in question would have to comply with the provisions of the Act in respect of the employees employed in the mess attached to the -9- W.P.(C). No.23586 of 2005 hostels under the said Colleges. 6.On a consideration of rival submissions and on a perusal of the statutory provisions, I am of the view that the challenge in the writ petition against Exts.P6 and P8 orders must necessarily fail. It will be apparent from a reading of the definition of employee extracted above that the term refers to any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment. The employee must get his wages directly or indirectly from the employer, and further, the term would take within its ambit also such persons as are employed by or through a contractor in or in connection with the work of the establishment. The word “employer” is also defined in Section 2 (i) (e) of the EPF Act. In Section 2 (i) (e)(ii) it is made clear that in relation to establishments other than factories, the person who, or the authority which, has the ultimate control of the affairs of the establishment is to be treated as the employer of the establishment, and where the said affairs are entrusted to a Manager, Managing Director or managing agent, such person shall be treated as the employer. In my view, the test of whether a person is an employee or not must depend upon the master -10- W.P.(C). No.23586 of 2005 servant relationship that is established between the person who can be called as an employer and the person who is engaged as an employee. A perusal of Ext.P1 Rules, which are statutory in nature, would clearly indicate that what is contemplated is that each hostel attached to a College is under the direct control of a Warden. The administrative hierarchy in the matter of administration of the hostel mess comprises of the Warden at the top of the chain, followed by the Assistant Warden immediately below him, the Mess Committee constituted by the students of the hostel below that, and the staff/employees engaged by the Mess Committee at the bottom of the chain. No doubt, as pointed out by the learned counsel for the petitioner, there are separate duties assigned to each of the components in this hierarchical chain, and it may be a fact that the payment of wages to the mess employees is made by the Mess Committee. It cannot be denied, however, that as per the statutory Scheme in the Rules, the overall supervision of administration lies with the Warden, who is the Warden for both the men's and women's hostels in the Colleges. In fact the Rules make it very clear that even the appointment of employees by the Mess Committee concerned has to be with the approval of the Warden, and further, it is the Warden who is the -11- W.P.(C). No.23586 of 2005 disciplinary authority for the purposes of disciplinary action against any of the mess staff. It would follow therefore, that if the Warden is seen that as the person having ultimate control over the affairs of the hostels, then he would be the employer in relation to the staff that is employed in each mess, and for the purposes of the definition of employee under Section 2 (f), the staff attached to each of the mess could be seen as getting their wages indirectly from the Warden who is their employer. Since both the hostels in question come under the administrative supervision of a common Warden, the messes cannot be treated as separate units for the purposes of the EPF Act and accordingly, I find no reason to interfere with the decisions in Exts.P6 and P8 orders which find that the messes are to be treated as a single unit for the purposes of demanding contribution from the petitioner in respect of the employees engaged in the messes. It is not in dispute that if the employee strength in both the messes are taken together their number would exceed 20, which is the threshold for attracting the coverage under the EPF Act. I also find that Ext.P9 judgment of this Court, which is relied upon by the learned counsel for the petitioner is in a different context,in that it deals with the issue of whether employees attached to the messes in a hostel under a -12- W.P.(C). No.23586 of 2005 College under the University would be eligible for the service benefits available to the employees of the University. The court held that the mess employees cannot be treated as employees of the University for the purposes of the University Act and Rules. The definitions of employer and employee under the EPF Act being distinct and different from the like concepts obtaining under the University Act and Rules, I do not see the said judgment as being of any assistance to the petitioner in respect of his contentions in the writ petition. Resultantly, the writ petition in its challenge against Exts.P6 and P8 orders fails and is accordingly dismissed. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/26.05.16