IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 OP.No. 14195 of 2000(M) ----------------------- PETITIONER(S): --------------- P.RAMACHANDRAN, PROPRIETOR, GENERAL ENGINEERING COMPANY, INDUSTRIAL ESTATE, KANNANALLOOR KOLLAM DIST. BY ADV. SRI.ARIKKAT VIJAYAN MENON SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.BINOY JOSE RESPONDENT(S): --------------- 1. REGIONAL PROVIDENT FUND COMMISSIONER, E.P.F.O., REGIONAL OFFICE, PATTAM, THIRUVANANTHAPURAM. 2. UNION OF INDIA, REP. BY ITS SECRETARY TO GOVT., DEPT. OF LABOUR & EMPLOYMENT, NEW DELHI. ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R1 SRI.K.R.RAGHUNATH, ADDL.CGSC FOR R2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/03/2009, THE COURT ON THE SAME DELIVERED THE FOLLOWING: O.P.No. 14195/2000. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE SSI CERTIFICATE. P2. COPY OF THE SS CERTIFICATE OF SMT.RAJESWARY. P3. COPY OF THE ORDER DTD.16.11.96 BY R1. P4. COPY OF THE LETTER DTD.26.12.96 BY R1. P5. COPY OF THE APPLICATION DTD.13.5.98 TO R1. P6. COPY OF THE -DO- 13.7.98 -DO- P7. COPY OF THE LETTER FROM R1 DTD.25.2.99. P8. COPY OF THE NOTE OF SQUAD DTD.30.9.96. P9. COPY OF THE ENQUIRY REPORT DTD.30.9.96. P10. COPY OF THE MAHAZAR BY THE SQUAD DTD.20.9.96. P11. COPY OF THE REPORT OF THE ENFORCEMENT OFFICER DTD.23.2.98. P12. COPY OF THE ORDER BY R1 DTD.1.3.2000. P13. COPY OF THE CHALAN FOR INCOME TAX REMITTANCE. P14. COPY OF THE -DO- OF SMT.RAJESWARY. P15. COPY OF THE MUSTER ROLL OF THE PETITIONER'S UNIT. P16. COPY OF THE -DO- SMT.RAJESWARY. RESPONDENT(S)' EXHIBITS: R1A. COPY OF THE MAHAZAR DTED.20.9.96. B. COPY OF THE FORM NO.2 SUBMITTED BY THE PETITIONER DTD.23.10.91. C. COPY OF THE MAHASAR DTD.20.9.06. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 14195 of 2000 ================== Dated this the 5th day of March, 2009 J U D G M E N T The proprietor of an establishment which was directed to be covered under the Employees' Provident Funds and Miscellaneous Provisions Act, by the 1st respondent herein, is the petitioner herein. The original petition proceeds on the basis that the coverage was on the basis of clubbing of two separate establishments, viz., General Engineering Company and Kiran Steel Industries, which are separate SSI units; one owned by the husband and the other by the wife. According to the petitioner, the coverage has been established by clubbing these two establishments together. The counsel for the petitioner took pains to satisfy me that these two establishments are two separate SSI units having separate registration which are Exts.P1 and P2 and, as evidenced by Ext.P11 report of the Enforcement Officer of the Provident Fund Organization, these two establishments are distinct and separate. However, despite that fact, according to the petitioner, the 1st respondent has clubbed the two establishments together for the purpose of coverage under the Act and passed Ext.P12 order under Section 7A of the Act, which is under challenge before me. 2. The learned Standing Counsel for the Provident Fund Organization points out that, by Ext.P12, coverage was not by clubbing these two establishments together, but only separately, and the o.p.14195/00 2 petitioner's establishment alone has been covered under Ext.P12. It is pointed out that in Ext.P12 itself it has been specifically stated that the question of coverage of Kiran Steel Industries will be examined separately after collecting details, which the proprietor has not produced so far. 3. The contention of the petitioner is that without clubbing the two establishments together, each of these establishments do not employ the required number of employees for coverage. 4. I have considered the rival contentions in detail. 5. As I have stated first, the counsel for the petitioner took pains to satisfy me that the coverage has been done clubbing these two establishments together. On a reading of Ext.P12, it is abundantly clear that the petitioner's establishment has been directed to be covered separately as an independent unit leaving the question of coverage of Kiran Steel Industries under Section 2A of the Act to be examined separately after collecting relevant details, which the proprietor had not produced so far. As such, I need consider only the question as to whether the coverage of the petitioner's establishment, namely, General Engineering Company, under the Act is sustainable or not. 6. At the outset, I find from the order that the petitioner was not at all co-operating with the proceedings under S.7A of the Act as is clear from the following facts discernible from the impugned order. o.p.14195/00 3 Despite a direction by the Area Enforcement Officer, the petitioner did not produce the records of the establishment. The petitioner even refused to accept coverage notice issued by the 1st respondent. Therefore, it was served through the Area Enforcement Officer, which was acknowledged on 20.12.1996. On receipt of the intimation, the petitioner by letter dated 26.12.1996, disputed the coverage on the ground that the General Engineering Company and Kiran Steel Industries are separate units owned by separate persons with separate SSI registrations and hence not coverable. Therefore, the 1st respondent initiated proceedings under 7A(1) of the Act for deciding the question of coverage. First hearing of the proceedings was fixed on 20.2.1997. Although the petitioner acknowledged the summons, none appeared in the enquiry and the enquiry was adjourned to 19.3.1997. The petitioner did not seek any adjournment also. The enquiry was again adjourned to 13.5.1997. The adjournment notice was served through the Area Enforcement Officer and the petitioner acknowledged receipt of the summons on 29.4.1997. None appeared on that day also and the enquiry was again adjourned to 10.11.1997. The petitioner acknowledged the summons on 20.10.1997. The petitioner appeared on 10.11.1997 again contending that the petitioner's company has no relation with the Kiran Steel Industries. As per the request of the petitioner, a squad of two Area Enforcement Officers was deputed to inspect the petitioner's establishment. The squad reported that both o.p.14195/00 4 the establishments are under the same management and that workers working in both units as also ministerial staff are also the same. Further enquiry on the basis of the report of the Area Enforcement Officer was fixed on 7.4.1998 and summons were issued to the petitioner and to the proprietrix of Kiran Steel Industries. The summons were returned. Thereafter, enquiry was adjourned to 14.5.1998. Despite receipt of summons, none appeared on 14.5.1998 and the enquiry was adjourned to 25.6.1998 and the summons were again served through the Area Enforcement Officer and acknowledgements were obtained. On 25.6.1998 nobody appeared. As a last chance, one more opportunity was granted and enquiry was adjourned to 14.7.1998. Summons addressed to the proprietrix of Kiran Steel Industries was returned stating with the postal remarks “husband's name differs and hence refused”. Although the petitioner was supplied with a communication dated 25.2.1999 enclosing the copies of the reports of the Enforcement Officer dated 30.9.1996 and 23.2.1998 calling for his objections thereof, he did not file any objection, despite serving notice through Area Enforcement Officer on 26.2.1999. When the establishment was again visited by the Area Enforcement Officers on 1.6.1999, the records were not available in the factory premises. Although the petitioner was directed to produce the records on 16.6.1999 he did not respond. Again, when a squad of Area Enforcement Officers visited the establishment on 22.12.1999, no o.p.14195/00 5 responsible person was available in the premises of the petitioner's establishment. The squad verified the available records in the factory premises. These records were for the current period only. The person available in the office was directed to inform the proprietor to produce the records on 23.12.1999. On 27.12.1999 the petitioner turned up without the relevant records. On 3.1.2000 he produced certain records such as cash book, Income Tax returns etc. in respect of the General Engineering Company and Kiran Steel Industries, which did not disclose the date of set up, employment strength etc. of the two establishments. It is under the above circumstances, the 1st respondent issued Ext.P12 order on the basis of the records available, thus; “On the basis of the declaration in form 2 submitted by the Employer to the Factories Inspector on 6.9.91 there were 20 employees during June 1991. In the declaration in form 2 submitted by Sri.P.Ramachandran dated 23.10.91 for renewal of licence for the year 1992, it is stated that for the preceding 12 months 20 employees were regularly engaged (col.5 (iii). The establishment has started functioning during 1979. Admittedly, there were 20 employees during June 91 and hence the coverage of General Engineering Company is finalised with effect from 30.6.91. The question of coverage of Kiran Steel Industries under section 2(A) of the Act will be examined separately after collecting the relevant details which the Proprietor has not produced so far. O R D E R In the light of the above findings I consider that there is absolutely no ground for disputing coverage and the coverage of the establishment is perfectly in order. The establishment is statutorily bound to extend the benefits under the Employees Provident Fund and other schemes to its employers (sic) from 30.6.91.” 7. It is this order the petitioner challenges in this original petition. The counsel for the petitioner took pains to argue that the o.p.14195/00 6 declaration submitted by them in form no. 2 was only an approximate number which does not represent actual strength and the same was only 15. I am not able to accept that contention. Form 2 declaration is a statutory declaration. The petitioner cannot disown the same. Even otherwise, the petitioner had been given more than sufficient opportunities to prove otherwise by producing appropriate records. The petitioner has not chosen to do so. That being so, there is absolutely nothing wrong in the 1st respondent deciding the matter on the basis of the records available to him. The records available to him are sufficient to hold that the petitioner's establishment independently employs 20 or more employees during 1991, which has been declared by the petitioner by filing declaration in Form 2 before the Factories Inspector for the purpose of obtaining factory licence and getting the same renewed. In the above circumstances, I do not find anything wrong with the impugned order. Accordingly, this original petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 14195 of 2000-M ================== J U D G M E N T 5th March, 2009