MERCY HOSPITAL v. UNION OF INDIA

O.P. NO. 20548/1998-UAPPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 27/01/1997 ISSUED BY THE 2ND RESPONDENT.EXT.P2: COPY OF THE ORDER DATED 6/08/1998 ISSUED BY THE 3RD RESPONDENT.EXT.P3: COPY OF THE STATEMENT DATED 06/06/1996 FILED ON BEHALF OF THE FIRMBY THE 2ND PETITIONER.EXT.P4: COPY OF THE LIST OF THE PETITIONER'S FIRM DATED 30/01/1996 GIVEN BYSRI.ZUBAIR.EXT.P5: COPY OF THE STATEMENT DATED 22/07/1996 SUBMITTED BEFORE THE 2NDRESPONDENT BY THE ENFORCEMENT OFFICER OF THE INSPECTORATE OFEMPLOYMENT PROVIDENT FUND.EXT.P6: COPY OF THE STATEMENT FILED BY THE PETITIONER'S FIRM BEFORE THEREGIONAL PROVIDENT FUND COMMISSIONER DATED 03/08/1996.EXT.P7: COPY OF THE NOTE OF ARGUMENTS SUBMITTED BEFORE THE REGIONALPROVIDENT FUND COMMISSIONER DATED 26/11/1996.EXT.P8: COPY OF THE ARGUMENT NOTES SUBMITTED BY THE COUNSEL FOR THEPETITIONER DATED 26/11/1996.EXT.P9: COPY OF THE ADDITIONAL ARGUMENT NOTES SUBMITTED BY THE COUNSELFOR THE PETITIONER DATED 27TH NOVEMBER 1998.EXT.P10: COPY OF THE ADDITIONAL ARGUMENT NORES SUBMITTED BY THE COUNSELFOR THE PETITIONER DATED 17/12/1996.EXT.P11: COPY OF THE REPLY TO COMMENTS OF ARGUMENT NOTE SUBMITTED BYINSPECTOR OF PROVIDENT FUND DATED 8TH JANUARY 1997.RESPONDENT'S EXHIBITS: EXT.R2(a): COPY OF THE LETTER DATED 14/03/1996 SENT BY THE MANAGINGPARTNER.EXT.R2(b): COPY OF THE LIST OF 24 EMPLOYEES GIVEN BY THE WORKING PARTNEROF THE FIRM.//TRUE COPY// P.S. TO JUDGE rs. S. Siri Jagan, J.=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=O.P. No. 20548 of 1998=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=Dated this, the 24th November, 2009.J U D G M E N TA hospital, which has been directed to be covered under theEmployees Provident Funds and Miscellaneous Provisions Act and itsmanaging partner, have come up with this original petitionchallenging Ext. P1 order of coverage and Ext. P2 order of theAppellate Tribunal confirming Ext. P1. 2. When notice of proceedings for coverage was received fromthe 2nd respondent, the managing partner objected to the same on theground that the hospital does not employ 20 or more persons so as tobe liable to be covered under the Act. Therefore, proceedings underSection 7A was initiated, which led to Ext. P1 order. Ext. P1 order issolely based on a list of employees signed by the working partner ofthe hospital, wherein the names of 22 employees have been shown. Inthe 7A proceedings , that working partner gave evidence to the effectthat the list included the names of employees of a scan center and atelephone booth working in the same premises. According to theworking partner, he mistakenly gave the names of the employees ofthe scan center and the telephone booth also. He submits that he hasvery serious problems of eye sight and he is almost blind. However,the 2nd respondent did not accept the evidence of the working partnerand relied upon the very same list signed by the working partner,which he later retracted from, to pass Ext. P1 order. The appeal filedby the petitioner was rejected by Ext. P2 order again relying on thevery same list of employees. The petitioner is challenging Exts.P1 andP2 orders.3. The contention of the petitioners is that the hospital neveremployed 20 or more persons at any time and therefore is not liable tobe covered under the Act. They submit that apart from the retractedlist 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 tocome to the conclusion that the hospital employed 20 or more personsat any time. The petitioners would submit that the orders based onsuch totally inadequate material cannot be sustained.4. With the help of a counter affidavit, the 2nd respondentopposes the prayers in the original petition. According to him, theworking partner was subjected to cross examination while givingevidence and serious discrepancies were noted in his evidence andtherefore he was disbelieved. He would submit that insofar as theworking partner himself gave l names of 22 persons as employees ofthe hospital, there is absolutely no reason why the same should notbe 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 2ndrespondent to bring in sufficient evidence to prove their case whenthe managing partner, who gave the list, which is the sole basis of thedecision, retracted from the same. The enforcement officer whovisited the hospital could very well have interviewed the employeeswhose names were given by the working partner and ascertaineddirectly from them as to whether they are employees of the hospital.Not even an attempt was made by the 2nd respondent to ascertain andplace before this Court as to the size of the hospital. Not even thenumber of the beds in the hospital has been brought on record. Thefacilities in the hospital have not been attempted to be brought onrecord. They are solely relying on a list prepared on the instruction ofa working partner, who admittedly had very serious eye sightproblems. The 2nd respondent cannot even tell me in whose handwriting Ext. P4 has been prepared. He has not been able to tell mewhether 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 scancenter and the telephone booth working in the same premises. Whenthe petitioner claimed that the scan center and the telephone boothare unconnected with the hospital and Ext. P4 contains the names ofemployees of the scan center and the telephone booth also, the 2ndrespondent had a duty to verify the correctness of that statement andbring on record sufficient evidence in support of the conclusion thatthe establishment employed 20 or more persons instead of simplyrelying on a list prepared at the instance of a blind man, which wasretracted by him on oath before the 2nd respondent while givingevidence. The 2nd respondent has no case that there is any indicationin the records of the hospital to the effect that the number ofemployees in the hospital is 20 and above. Therefore, I am of opinionthat on such flimsy evidence, the 2nd respondent could not have cometo the conclusion that the establishment employed 20 or morepersons. In view of the above findings, Exts.P1 and P2 areunsustainable. Accordingly, they are quashed. However, it would beopen to the 2nd respondent to re-consider the matter and pass freshorders, after bringing in sufficient evidence to show that theestablishment had actually employed 20 or more persons at therelevant time.The original petition is disposed of as above. Sd/- S. Siri Jagan, Judge.Tds/