NUTAN BAL VIDYALAYA Vs. ASSISTANT P F COMMISSIONER

JUDGEMENT

(1.) THE petitioner has filed this petition under Articles 226 and 227 of the Constitution of India praying for quashing and setting aside the order dated 25.05.2004 passed in Case No.GJ-13926 by the respondent Assistant Provident Fund Commissioner. THE petitioner has also prayed for quashing and setting aside the order dated 16.04.2010 passed by the Employees Provident Fund Appellate Tribunal, New Delhi in Case No.ATA-456(5)/2004.

(2.) THIS Court has issued notice on 18.08.2010. Pursuant to the notice Mr.Niral R. Mehta, learned advocate appears on behalf of the respondent.

(3.) MR.R. R. Vakil, learned advocate appearing for the petitioner has submitted that Shri B. R. Patel Nutan Fellowship High School is run by the Trust while the HUF is running the petitioner primary school and hence, both the schools are run by the different management and hence clubbing and treating them one entity for the purpose of bringing the petitioner school under the coverage of P. F. Act is not just and proper. He has further submitted that the respondent authority as well as the Appellate Tribunal both have committed an error in observing that only with a view to avoid liability under the Employees Provident Fund Act, the managements have shown that both the schools are separate, independent and distinct entity. He has further submitted that various documents produced by the petitioner before the respondent authority as well as Appellate Tribunal were not considered in their proper perspective. Both the authorities have failed to appreciate the documents regarding recognition of both the schools as well as balance sheet, pay register, muster roll, income tax returns as well as rent receipt show which that both the institutions are separate and independent. He has further submitted that the provisions of the Act are applicable to the establishment only if there are more than 20 workers in the establishment as per Section 1(3)(b) of the Act of 1952 and the rules framed therein. The said High School is a Grant-in-Aid and is getting 100% grant from the Government of Gujarat and the employees of the High School are getting salary in direct payment scheme. Moreover, the retirement benefits are paid to the employees of the High School which is totally under the control of the State Government. Under Section 16(1)(b) of the Act, the employees of Shri B. R. Patel Nutan Fellowship High Schools are not covered under the provisions of the Act of 1952 as it is covered under the provisions of the Gujarat Secondary Education Act, 1972 and the Rules and regulations framed thereunder and, therefore, the question of clubbing the employees of Shri B. R. Patel Nutan Fellowship High School with the petitioner primary school does not arise. He has further submitted that even the Appellate Tribunal has not considered the fact that service conditions of the employees of primary school are quite different than that of the employees of the secondary school. There are different Acts and Rules applicable to both the schools. He has further submitted that there is no basis for arriving at the conclusion that the schools are owned by one family and managed by one committee. The managerial power does not rest with one family nor the finance of both the schools are controlled by the Trust and there is no financial relations between the two. He has further submitted that as far as the accounts of secondary school and higher secondary school are concerned, the said accounts are maintained separately. The office of the District Education Officer has also audited the accounts of the school. As far as the petitioner school is concerned, the said school maintains separate accounts and every year the said accounts are also audited. The petitioner school has also appointed a separate clerk and that clerk is being paid salary by the petitioner and the said salary is also shown in the audited accounts. Considering the facts and circumstances of the case, he has submitted that employees of Shri B. R. Patel Nutan Fellowship High School should not be clubbed along with the employees of the petitioner school and hence, both the orders challenged in this petition deserve to be quashed and set aside.