CONSULTANT DOCTORS, NOT IN REGULAR EMPLOYMENT, COULD NOT BE TREATED AS ‘EMPLOYEES’ UNDER EPF ACT.

[Mr. M. GOVINDARAJAN]

                        Sec. 2(f) of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (‘Act’ for short) defines the term ‘employee.  According to this section the term   “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;          

                        The issue to be discussed in this article is whether consultant doctors, not in regular employment in a nursing home may be treated as ‘employees’ under the Act with reference to a decided case law. 

                        In ‘Employees’ Provident Fund Organization V. Employees’ Provident Fund Appellate Tribunal and another’ – 2012-II-LLJ-563 (ker) the respondent nursing home is rendering medical service to the public.  The appellant’s Inspector visited the premises of the Nursing Home and conducted inspection and verified the muster roll.   The Inspector noticed that the names of the consultant doctors.   The appellant department demanded EPF contributions since the total strength including the 3 consultant doctors exceeded the number 20.  If the consultant doctors are excluded from the strength of the Nursing Home it is below the coverage limit and will not come under the coverage of the Act and the Nursing Home claim exemption from the liability.   But the Department treated the 3 consultant doctors as employees and contribution was demanded.  This order was challenged by the Nursing Home before the EPF Tribunal.  The EPF Tribunal held that the Nursing Home has no liability to remit contribution for the consultant doctors engaged by them. 

                        Against the order of the Tribunal the Department filed a writ petition before the High Court.   The Single Judge declined to interfere with the order of the Tribunal.   Aggrieved against the order of the Tribunal the Department filed this writ appeal.   The contention of the Department before the Court is that the consultant doctors on facts were found to be ‘employees’ within the meaning of Section 2(f) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 and the Tribunal as well as the Single Judge were wrong in declaring exemption to the Nursing Home from the requirement of pay in contribution.                     

                        The court after hearing the arguments on both sides held as follows:

• They are not satisfied that on facts the appellant has established that consultant doctors are employees within the meaning of Section 2(f) of the Act;
• Normally consulting doctors are only visiting doctors and they are not confined to a single hospital;
• The hospital, where the consultants reach for offering consultancy service to patients, are not subject to any control whatsoever by the hospitals, which just provide facility for patients to avail service from consultant doctors;
• Consultant doctors are paid only for the services rendered by them and not for hospitalization, nursing, dispensation of medicine etc.,;
• Hospitals collect charges separately from patients;
• By camouflaging salary as  consultancy charges doctors regularly employed in hospitals cannot be taken out of the coverage of the Act;
• The above fact has to be proved with evidence;
• In the present case the employees of the Department have not made any earnest effort to establish the factual position. 

The Court pointed out the following shortcomings on the part of the Department:

• No statement is recorded from the consultant doctors as to whether they are engaged full time in the hospital or whether they are working as consultants in other hospitals and in their own houses;
• No inquiry was conducted to find out whether the hospital has other doctors  employed on regular basis to take care of routine matters;
• If the doctors described in the records as ‘consultants’ are regular doctors employed in full time in the Nursing Home, they are employees and the styling of payment as consultation charges makes no difference.  There is no inquiry or findings in this regard.
• Certain inferences are drawn merely because the consultant doctors signed the muster roll and strangely the acquaintance role which discloses the payment to doctors was not even seen by the officers of the Department who conducted the enquiry.

The High Court held that since there is no  material to prove the engagement of  the consultant doctors by the Nursing Home  they did not find any ground to interfere with the judgment of Single Judge of the High Court.