ROMAN CATHOLIC SOCIETY OF CONGREGATION OF DAUGHTERS OF MARY HELP OF CHRISTIANS FATIMA MATRICULATION HIGHER SECONDARY SCHOOL KODAMBAKKAM Vs. REGIONAL PROVIDENT FUND COMMISSIONER MADRAS

JUDGEMENT

(1.) ( 1 ) THE petitioner/the Roman Catholic Society of the Congregation of Daughters of Mary Help of Christians, Kodambakkam, Madras-24 Fatima Matriculation Higher Secondary School, kodambakkam, represented by its correspondent Rev. Sr. Susanna, has filed this writ petition, questioning the validity of the demands made by the respondents for the payment of Employees Provident Fund. ( 2 ) THE petitioner, in the affidavit filed in support of the petition, has stated that the institution, run by them, has been declared as a religious Minority Institution of the Roman catholic faith coming under the protection of article 30 (1) of the Constitution of India. The religious order consists of Nuns, who have taken the vows, chastity, poverty and obedience and have renounced the worldly life and have devoted their lives to the service of god. As part of the service, most of them are working in different walks of life and some of them are serving as teachers in the Fatima matriculation Higher Secondary School and other institutions. As Nuns belonged to the religious order and have taken vow of poverty and lead a religious life, the salary paid to them is purely fictitious and the said money is only paid into the accounts of the Congregation and enjoyed in common. Under those circumstances, the religious Nuns, who are working as teachers in schools, have been exempted from signing the acquaintance registers for receiving the salary, by the proceedings of the Director of Public instructions, Madras in R. C. No. 387/d/46, dated July 18, 1946. They are exempted from payment of individual Income Tax, by proceedings of the Government of India, Office of the Commissioner of Income tax, Madras, ii, No. 22, Nungambakkam High Road, madras-34, in Rc. No. 230-11 (75) dated January 30, 1969. They also got exemption from payment of Special Provident Fund- cum-Gratuity Scheme by G. O. Ms. No. 531, education, dated July 19, 1991 and g. O. Ms. No. 1468, Education, dated december 21, 1985 of the Tamil Nadu education Department. The Government of tamil Nadu, Education Department have also exempted them from the payment of Group insurance Scheme (Family Benefit Fund) under g. O. Ms. No. 780, Education (U2) department, dated February 28, 1992. All religious Nuns, served as teachers, have till this date not received any personal salary nor paid any contributions towards Provident Fund family Benefit Special Provident Fund-cum- gratuity, Group Insurance Scheme (Family: benefit Fund) and Income Tax, etc. While so, the 2nd respondent inspected the petitioner school on June 16, 1993 and after perusing the records, sent a letter dated November 24, 1993, calling upon the Correspondent of the School to furnish details of 8 Nuns, who had served as teachers from 1989 onwards and who had not paid the Employees Provident Fund. Pursuant to the same, the 2nd respondent also issued a summons under Section 7-A of the Employees' provident Funds and Miscellaneous Provisions act, 1952, read with 26-B of the Employees provident Fund Scheme. The petitioner produced all the relevant records and sought for exemption, but the same was not accepted. The 2nd respondent by order dated November 29, 1995, directed to pay the Employees Provident fund and subsequently passed an order dated january 31, 1996 in Ref. No. D4/tn/ms/16154 / rgi/96, and those orders are being challenged in this writ petition. ( 3 ) THE respondents have filed a common counter, wherein it is stated that though the nuns are not paid any salary for the services of the God, rendered by them, they are paid some money in consideration for their services rendered. Therefore, the remuneration, received in consideration of service rendered by the Nuns from the Establishments, are liable for Provident Fund deductions in terms of provisions contained in Section 2 (f) of the Act. Any money is paid only as a consideration for the service rendered by the Nuns and it would attract the payment towards Employees provident Fund. The exemption provision, provided under the Act does not provide such exemption to the Nuns. As per the provisions of the Act, the provident fund contribution is liable to be recovered from a member, to whom the wages are paid or payable. Heard the learned advocate for the petitioner and the respondents as well. ( 4 ) THE learned advocate for the petitioner would submit that the Nuns have embraced the religious life and love of god through following the Christ. It is approved by the Church as a public state of life by the profession of poverty, chastity and obedience through public vows and by some form of separation from the world, practised for the sake and service of the world. Religious profession is an act, by which a person embraces the religious state by taking the three public vows of poverty, chastity and obedience. ( 5 ) A passage in the case of Mother superior, Adoration Convent, Kanjiramatton v. D. E. O. , Kottayam and Others, 1977-II-LLJ-450 was relied upon by the learned advocate for the petitioner, wherein a division Bench of the Kerala High Court, extracting a portion from the History of French private Law included in the Continental Legal history Series Vol. III, Para 585, wherein it is stated that "entering Religious Orders resulted in the eyes of the church in death to the world. From this, it should have been concluded that from the time of his entrance into a monastery, the monk could not acquire anything, and that the possessions, which he had at that time should pass to his heirs. But, however, if a monk or Nun does wrong or suffers wrong he or she is dealt with as though he were only an ordained clerk and tried by the ordinary Courts. It is viewed that a sort of civil death overtook one who took solemn religious vows, though limited in its effect to property and inheritance. " ( 6 ) IN the case of Sital Das v. Sant Ram, air 1954 SC 606, the Apex Court, at page 613, para 20, had observed that, "it is well known that entrance into a religious order generally operates as a civil death. The man who becomes an ascetic severs his connection with the members of his natural family and being adopted by his preceptor becomes, so to say, a spiritual son of the latter. The other disciples of his guru are regarded as his brothers, while the co-disciples of his guru are regarded as his uncles and in this way a spiritual family is established on the analogy of a natural family. " ( 7 ) BY relying upon the above decisions and also by relying upon the order passed by the Director of Public Instructions, Madras as early as July 18, 1946 (No doubt prior to the independence) and also the order passed by the income Tax Department dated December 5, 1977 (Central Board of Direct Taxes) and also the proceedings of the Director of School education, Madras - 6 dated September 15, 1992, by which a G. O. came to be issued in g. O. Ms. No. 780, dated August 28, 1992, exempting the teachers of religious Orders from the operation of the Teachers Provident fund Scheme and Group Insurance Scheme (Family Benefit Fund), the learned advocate for the petitioner vehemently submitted that the nuns are not receiving any salary and they are all considered as fictitious persons and therefore, no amount could be demanded from them towards Employees Provident Fund and the very demand itself is not legal and proper and that too, in view of several exemptions having been granted by several departments. ( 8 ) PER contra, the learned advocate for the I respondents would submit that the Nuns are working as teachers and therefore, there is an absolute relationship of 'master and Servant' between the Employer and the Employee and the amounts paid to them would amount to either salary or wages and therefore the amounts paid to them is attracted to the payment of Employees Provident Fund. The learned advocate for the respondent would further submit that now an Appellate Tribunal has been constituted under Section 7 (1) of the employees Provident Funds and Miscellaneous provisions Act, 1952 and the petitioners can prefer an appeal to the Appellate Tribunal and the said Appellate Tribunal came to be constituted only on and from July 1, 1977 and liberty may be given to the petitioners to approach the appellate forum. It is further argued that the petitioners have not obtained any exemption from the payment of Employees provident Fund and therefore, they are liable to pay the tax demanded by the respondents. ( 9 ) I have carefully considered the submissions made by the learned advocate for the petitioners as well as by the respondents. ( 10 ) IT is not in dispute that the Employees provident Funds contribution has been demanded in respect of the amounts paid to the nun teachers, who were employed in the petitioner's school. It is the contention of the learned advocate for the petitioner that the nuns are not paid any salary and when once they have entered the religious order and also taken vow of poverty, they are considered only as fictitious persons and they are further considered that their entrance to the religious order generally operate as a civil death. As they are considered as a fictitious persons and also they had civil death, they cannot acquire property, keep property and dispose of property. Unless, they receive salary, the question of payment of contribution towards employees' Provident Funds would not at all arise. It is submitted that the Nun teachers, who are employed in the petitioner's school, are not receiving salary nor they are entitled to receive salary. Whatever amount, which was earmarked for them, was sent to the congregation and therefore, those Nun teachers do not have any access to the said amounts and therefore, they are not liable to pay the Employees' Provident Funds. ( 11 ) IT is also pointed out that by taking into consideration the services rendered by the Nun teachers, the several authorities viz. , the Educational Institutions, The Income tax Department, etc. have granted exemptions from the payment of amounts on other statutes. As there was a threat of recovery of Employees Provident Funds from the petitioners, they have not filed any objection, and instead, rushed to this Court and filed this writ petition. It was apprehended, but for this petition, the respondents would have resorted to take further steps to enforce their demand, and the objection, if any, of the petitioner, would not. have been of any consequence. The said argument of the petitioner, cannot be rejected, as if there is no force in it. ( 12 ) IN view of the fact that several departments have granted exemption, I do feel that the petitioners must be given an opportunity to work out this remedy in a manner known to law to get exemptions from the concerned authorities. In the said view of the matter, I feel that in order to meet the ends of justice, the petitioner must be given an opportunity to approach the authorities concerned to put forward their grievance and to have remedial measure, if any. ( 13 ) IN the result, liberty is given to the petitioner to approach the authorities concerned within three months from the date of receipt of a copy of this order to obtain appropriate orders. If the petitioner fails to get any order, prohibiting the respondents from proceedings with the matter within the above said period, the respondents are at liberty to proceed against the petitioner in a manner known to law. The writ petition is disposed of accordingly. No costs. Consequently, connected W. M. P. , is also disposed of.