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T.B. Association, Lala Ram Swarup Hospital, T.B. Centre Vs. Reg. Prov. Fund Commissioner - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal Nos. 1217, 1218 and 1356 of 1978
Judge
Reported in[1981(43)FLR179]; 1981RLR92
ActsSocieties Registration Act, 1860; Provident Fund Act, 1925; Employees Provident Fund and Family Pension Fund Act, 1952 - Sections 1, 1(3) and 15
AppellantT.B. Association, Lala Ram Swarup Hospital, T.B. Centre
RespondentReg. Prov. Fund Commissioner
Advocates: G.B. Pai,; D.N. Misra,; J.R. Das,;
Cases ReferredAll India Institute of Medical Science v. Regional Provident Fund Commissioner
Excerpt:
.....- two statutes are on same subject of provident fund - said acts are different in scope and outlook. - - much good is done. like the association the hospital has a provident fund scheme under the act of 1925 for the benefit of their employees......will take these three cases separately. (4) c.w. no 1356 of 1978. t.b. association has a provident fund scheme which is governed by the provident fund act 1925 (act of 25). in the schedule to that act the name of t.b. association appears by virtue of section 8(2). by a notification dated july 2, 1940, the government of india directed that the provisions of the act of 1925 shall apply to the provident fund established for the benefit of the employees of t.b. association. on making of such declaration that act applied as if such provident fund were a government provident fund and the authority having custody of the fund were the government. (5) this was the position right from 1940 till16.11.1974. on 16.11.74 the government of india issued a gazette notification in these terms :.....
Judgment:

Avadh Behari, J.

(1) Avadh Behari Rohatgi, J. These three writ petitions raise a common question of law. They were heard together. This judgment will govern them all.

(2) T.B. Association of India is a society registered under the Societies Registration Act 1860. It was founded in 1939 with the object of 'prevention, control, treatment and relief of tublerculosis.' They have also State Associations throughout India having similar objects. The Association has started a hospital known as Lala Ram Swarup T.B. Hospital at Mehrauli. They have also a T.B. Centre at Asaf Ali Road, New Delhi.

(3) T. B. Association is petitioner in C.W. No. 1356 of 1978. Lala Ram Swarup T.B. Hospital is petitioner in C.W. No. '217 of 1978. T.B. Centre is petitioner in C.W. No. 1218 of 1978. We will take these three cases separately.

(4) C.W. No 1356 of 1978. T.B. Association has a Provident Fund Scheme which is governed by the Provident Fund Act 1925 (Act of 25). In the Schedule to that Act the name of T.B. Association appears by virtue of section 8(2). By a notification dated July 2, 1940, the Government of India directed that the provisions of the Act of 1925 shall apply to the Provident Fund established for the benefit of the employees of T.B. Association. On making of such declaration that Act applied as if such provident fund were a Government provident fund and the authority having custody of the fund were the Government.

(5) This was the position right from 1940 till16.11.1974. On 16.11.74 the Government of India issued a Gazette Notification in these terms :

'G.S.R.1294 in exercise of powers conferred by clause (b) of sub section (3) of section 1 of the Employees Provident Fund and Family Pension Fund Act, 1952 (19 of 1952) the Central Government hereby specifies all societies, clubs, associations which render service to their members, without charging any fee over and above the subscription fee of membership fee and in each of which twenty or more persons are employed as a class of establishment to which the said Act shall apply with effect from the 30th November, 1974.'

(6) By virtue of the power given by S. 1(3)(b) of the Employees Provident Funds and Family Pension Fund Act 1952 (Act of 1952) the Central Government extended the provisions of the Act of 1952 to 'all establishments, clubs, associations which render service to their members,' and 'in each of which 20 or more persons are employed.' The Regional Provident Fund Commissioner (Commissioner) acting on this notification required the T.B. Association to remit employer's and employees' contribution to him in terms of the Act of 1952 and the Scheme framed there under. The Association brought this writ petition to contest the action of the Commissioner.

(7) The petitioner has raised a twofold argument. Firstly, it is said that the Act of 1925 is a special Act applicable specifically to Government and other specified institutions of which the Association is one and thereforee the Provisions of the Act of 1925 will prevail over the provisions of the Act of 1952 which is a general law. The maxim generalia specialibus non derogant is called in aid. En the second place it is said that in any event the case of this Association does not fall within the four corners of the notification of 1974.

(8) In our opinion, there is no merit in the first contention. There is no question of special law and the general law. Both the statutes are statutes of a general nature. It is difficult to say that one is special and the other is general. In the two statutes different schemes of provident fund are adumbrated. The Act of 1952 envisages a much broader scheme conferring a larger benefit of provident fund and the family pension scheme on the employees.

(9) Counsel referred us to Pratap Singh v. Monmohan Dey, : [1966]3SCR663 where Maxwell on Interpretation of Statutes is quoted in support of the proposition that a general later law does not abrogate an earlier special one by mere implication. In our opinion, that case is of no assistance to the Association as we cannot say that the Act of 1925 is a special Act and the Act of 1952 is a general Act.

(10) The Act of 1952 is a welfare legislation. It is a measure of special justice or what is now called distributive justice. What should be the manner of our approach to a piece of legislation such as this in the wetfare State. There should be, as Lord Diplock has said recently, 'a purposive approach to the Act as a whole to ascertain the social ends it was intended to achieve and the practical means by which it was expected to achieve them.' (R. v. National Insurance Commissioner (1972) A.C. 914 (1005).

(11) In 1925 the State did not think in terms of social security. The Second World War, the Universal Declaration of Human Rights and the Constitution of India in 1950 with its magnificent preamble all combined to bring about a revolution in our thought. With a sharp gesture of impatience the State turned to the question of making some provision for the future of the industrial worker after he retires or for his dependents in case of his early death, The Act of 1925 was not applicable to workers' employed in factories and labourers in industrial establishments. The object of 1952 Act is to make it compulsory for every employer of workers and labourers in the industrial concerns to establish provident fund scheme for the betterment of such employees and their families. Prior to the Act of 1952 there was no compulsory statutory provision for the benefit of Provident Eund to industrial employees. The Act of 1925 left the question of giving the benefit of the Provident Fund to the sweet will of the employer.

(12) Section 1(3)(b) of the Act of 1952 says that the Act applies 'to any other establishment employing 20 or more persons or class of such establishments which the Central Government may by notification in the official Gazette specify in this behalf.' The underlying idea of the Act is to bring all kinds of employees within its fold. This is the end it seeks to achieve. And the legislature has given to the Central Government the practical means by which to achieve them. The Government is in a position to have all the relevant and necessary information in relation to each kind of establishment enabling it to determine which of such establishments can bear the additional burden of making contribution by way of provident fund for the benefit of its employees. (See Mohammed All v. Union of India (1963) 1 Llj 536 (SC):1963 Supp.(1) S.C.R. 993.

(13) The Central Government thereforee can extend the benefit of the Provident Fund Scheme envisaged in the Act of 1952 to the establishments which are covered by the Act of 1952 if it specifies those establishments in a statutory notification published in the official gazette.

(14) Section 15 of the Act of 1952 provides that an existing provident fund scheme which may have already covered the employees of an establishment can continue pending the application of the Act to the said provident fund scheme. After the Act becomes applicable to such a scheme the said provident fund is transferred to the fund established under the Employees' Provident Fund Scheme outlined in the Act of 1952. The provisions of the Act of 1952 are overriding. Once the employers become members of the Fund established under the Scheme of the Act of 1952 the accumulation of any provident fund shall, 'notwithstanding anything to the contrary contained in any law for the time being in force or in any deed or other instrument establishing the provident fund', be transferred to the Fund established under the Scheme of the Act of 1952,

(15) The Act of 1952 thereforee provides the method or machinery to include an establishment or class of establishments not hitherto covered by the Act of 1952. thereforee there is no question of repugnancy between the Acts of 1925 and 1952. Nor of repeal, nor of abrogation. Two statutes on the same subject viz. provident fund exist on the statute book side by side. We see no conflict in them. They are different in scope and outlook. The Act of 1952 is a product of the march of the time. The Act of 1925 takes us to the corridors of the past. And both remind us that law does not stand still. It is constantly on the march.

(16) The legislature has one dominant object in mind-to cover as many establishments as possible by the Act of 1952, if the Government comes to the conclusion that the establishment can bear the additional burden of making contribution to provident fund for the benefit of its employees. that Act of 1952 aims at giving over widening benefit of social security to industrial workers and employees of other establishments. It has been aptly said : 'It is the function of an ideal welfare state to give every citizen the opportunity of earning his living and freedom from fear fear specially of economic ruin which can involve physical and even moral ruin'. The Act of 1952 is a measure in the direction of achieving this goal.

(17) Now the second contention. In the second contention there is considerable force. The notification extends the Act of 1952 to society, club or association 'which renders service to their members.' Now T.B. Association is not an association which renders service to its members It renders service to the public. The objects of the Association show this. Their principal object is the prevention, control, treatment and relief of tuberculosis. It is true that they have State Associations and those Associations are affiliated to the T.B. Association of India at New Delhi. But that does not mean that it in an association which serves its members. The object is to serve the public, the suffering humanity.

(18) Counsel for the Commissioner has referred us to a report of the inspector in which it is said that this is an association which renders service to its members by charging fee for affliation etc. We cannot accept this report In the memorandum of 'association and rules and regulations of the Association the avowed object is to serve the public. The object, as we have said, is to serve the afflicted humanity and help in the prevention, control, treatment and relief of tuberculosis. The Association is doing splendid work. Much help is given. Much good is done. By their milk of human kindness they bring relief and hope to millions who suffer from this fell disease. They are enabled to see the roseate hues of early dawn in a life of encircling gloom.

(19) We must thereforee hold that the notification of 16th November, 1974 does not apply to the T.B. Association of India and they cannot be asked to subscribe to the Scheme of Act of 1952. The action of the Commissioner requiring them to remit money under the Act of 1952 and the scheme framed there under must be struck down. We accordingly allow this writ petition.

(20) C.W. No. 1217 of 1978. As we have said, T.B Association runs a Hospital known as Lala Ram Swarup T.B. Hospital at Mehrauli. Like the Association the Hospital has a Provident Fund Scheme under the Act of 1925 for the benefit of their employees. On 15th September, 1973 the Central Government issued the following notification :

'INexercise of the powers conferred by clause (b) of sub-section (3) of section 1 of the Employees' Provident Funds and Family Pension Fund Act, 1952 (19 of 1952) the Central Government hereby specifies every establishment known as hospital run by any individual, association or institution (other than the establishment covered by clause (vi) of the notification of the Government of India in the late Department of Social Security, Nos. G.S.R. 1398 dated the 17th September, 1964), as the establishment to which the said Act shall apply with effect from the 31st August, 1973-74.'

(21) Now this T.B. Hospital raises the same argument as was done by the T.B. Association in the other case. But here we think the position is quite different. The notification of 1973 in the present case will squarely apply to this hospital. It is a hospital run by the T.B. Association of India. It is called a hospital. Lala Ram Swarup T. B. Hospital is the name by which it is known. We do not see why the beneficial provisions of the Act of 1952 should not apply to this hospital. We, thereforee, hold that Lala Ram Swarup T.B. Hospital is an establishment to which the Act of 1952 shall apply with effect from August 31, 1973.

(22) Counsel referred us to an unreported decision in All India Institute of Medical Science v. Regional Provident Fund Commissioner, (C.W. No. 370 of 1976 decided on March 13, 1978 by V.S. Deshpande and H.L. Anand JJ) in support of the contention that the notification in question applies to hospitals. That case certainly supports the contention of counsel for the Commissioner.

(23) We accordingly dismiss this writ petition and uphold the action of the Commissioner in requiring the hospital to subscribe to the Provident Fund Scheme under the Act of 1952.

(24) C.W. No. 1218 of 1978. This is of case T.B. Centre T.B. Association has started New Delhi T.B. Centre. The Commissioner says that this T.B. Centre is a hospital to which the notification dated 15th September, 1973 applies. We cannot accept this contention. The reason is that the New Delhi T.B. Centre is essentially a research centre. One of the object of the Association is 'the undertaking of research and investigation on subjects concerning tuberculosis and allied chest diseases.' Now the dominant and primary activity of this institution is research. It is a research training centre with about 50 indoor beds which are not meant for routine treatment but only for patients included in any clinical drug trial and so required to be present in the clinic throughout for close observation for diagnostic or treatment problem. At the centre, training and educational courses are conducted for medical students, nurses, health visitors etc. and surveys are conducted regarding the prevalence of T.B. in the region. This shows that this is not a hospital in the sense in which the word is used in the statutory notification of 1973. Research and training are the primary objects. But research and training are not possible without beds. The treatment is thus a part of research and training.

(25) Then above all, the establishment must be known by the name of hospital. This is what the notification of 15th September, 1973 expressly says. It says 'every establishment known as hospital' will be an establishment to which the Act of 1952 shall apply. In our opinion, the T.B. Centre is not a hospital as it is not known by that name.

(26) Counsel for the Commissioner says that we should look to the substance of the thing and not mere form. We do not agree. The notification in terms says that the establishment must be known as hospital. If it is not known as a hospital it is not covered by the notification.' What is in a name That which we call a rose/By any other name would smell as sweet.' (Shakespeare : Romeo and Juliet II. I. 43). The poet can say this. But not the lawyer. To him name matters. It makes a lot of difference. Because the notification says so. The establishment must be known as a hospital before the Act of 1 952 can be applied to it. It is to hospital establishments as a class that the statutory notification addresses itself. But they must be known as such. This is the primary thing. We, thereforee, strike down the action of the Commissioner in asking the T.B. Centre to subscribe to the Fund Scheme of Act of 1952.


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