IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.06.2011 CORAM THE HONOURABLE MR. JUSTICE K.CHANDRU W.P.NO.8896 OF 2010 AND M.P.NO.1 OF 2010 The Management of Lingam Press 92, Lokamanya Street West, R.S.Puram, Coimbatore – 641 002. Rep.by its Partner, M.K.Prakasam ... Petitioner VS. 1.The Presiding Officer Employees' Provident Fund Appellate Tribunal (Ministry of Labour & Employment, Government of India) SCOPE MINAR, CORE II, 4th Floor, Lakshmi Nagar District Centre, Lakshmi Nagar, New Delhi – 110 092. 2.The Assistant Provident Fund Commissioner EPF Organisation Bhavishyanidhi Bhavan Dr.Balasundaram Road, Coimbatore – 641 018. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari, calling for the records of the first respondent in ATA No.474 (13) 2003 and quash its orders dated 13.04.2010 confirming the order of the second respondent dated 30.05.2003. For Petitioner : Mr.S.Ravindran for M/s.T.S.Gopalan & Co. For Respondent-2 : Mr.K.Ramu O R D E R The petitioner is the Management of Lingam Press of Coimbatore. They have come forward to challenge the order dated 13.04.2010 of the first respondent Employees' Provident Fund Appellate Tribunal made in A.T.A.No.474(13)/2003 confirming the order dated 30.05.2003 of the second respondent Assistant Provident Fund Commissioner, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 2.The writ petition was admitted on 28.04.2010. Pending the writ petition, this Court granted an order of interim stay on the condition that the petitioner should deposit a sum of Rs.37,000/- as a condition precedent for grant of stay. Now, it is admitted that the petitioner has complied with the said condition. On notice from this court, the second respondent has filed a counter affidavit dated 02.04.2011. 3.The facts leading to the filing of the writ petition are as follows: (a) Initially a Printing Press by name Kaithari Achagam was running at No.3, Thomas Street, Coimbatore under partnership comprising of 3 partners namely Mr.A.Alagappan, Mr.N.Velumani and Mr.M.Manicka Sundram. At that time, the said Press was covered by the provisions of the Employees' Provident Funds Miscellaneous and Provisions Act, 1952 (shortly "the Act") having specific code number. (b) The deponent of the affidavit, who is the partner of the present Lingam Press claimed that his father, who was working as Manager in the said Press, purchased the machineries of the Press through an agreement dated 31.12.1974 at Rs.21,425.74, after the closure of Kaithari Achagam in the year 1974. In the agreement itself, it was stipulated that he will collect the outstanding dues payable to the earlier Press and discharged the various liabilities as well as the return of amount in cash to the erstwhile partners of the firm. His father did not take the Press as a going concern, but had purchased the machineries to run it as a new venture. After his father purchased the Press due to the understanding and agreement, the new Press was named as Lingam Press and was running at No.196, N.H. Road, Coimbatore. (c) After the new Press was started, it had only 5 to 6 employees. The two employees, who were originally working under Kaithari Achagam were appointed in the new Press viz., Lingam Press as new entrants. The legal dues payable to the erstwhile employees of Kaithari Achagam were settled by the partners of the erstwhile press. Subsequently, the father of the present deponent died on 10.01.1978 and the Press was not operated from 10.01.1978 to 09.02.1978. (d) A fresh partnership was constituted by the deponent of the affidavit along with his sister-in-law and the Press was started running under the new partnership executed on 05.06.1978. Even after the taken over by the partnership, it had less than 10 workers. However, the respondent Provident Fund Department issued an order under Section 7-A of the Act seeking for contribution of subscription for the erstwhile employees of Kaithari Achagam for the period from 01/1975 to 06/1979. These claims were made notwithstanding the change of ownership. The order of termination made was to charge a sum of Rs.7,278/-. https://hcservices.ecourts.gov.in/hcservices/ (e) As against the said order, an appeal was filed before the Central Government under Section 19-A of the un-amended act and the said appeal was dismissed on 12.01.1980. (f) Aggrieved by the order passed by the Central Government, a writ petition was filed before this Court being W.P.No.3254 of 1981. This Court by an order dated 02.04.1987 allowed the writ petition and remanded the matter for fresh disposal by the Central Government in a proper perspective. Even after the remand, nothing was heard from the Central Government. (g) Thereafter, the respondent Provident Fund Commissioner initiated enquiry under Section 7-A of the Act and asked the petitioner to show cause as to why contributions should not be determined for the period from 09/1980 to 12/1998 and the petitioner was asked to appear for an enquiry. The petitioner informed the respondents about the pendency of the remanded matter before the Central Government. (h) In the meanwhile, the Central Government informed the petitioner that their application has been dismissed and they should participate in a proceeding under Section 7-A of the Act. The petitioner's request for a copy of the said order was rejected and the same was not furnished to the petitioner. (i) Thereafter, the second respondent by an order dated 06.01.2000 determined the contributions payable by the petitioner for the period from 09/1980 to 12/1998 at Rs.73,894.30. (j) The petitioner, once again filed a writ petition before this Court being W.P.No.1339 of 2000. Since at that time, the Act has been extensively amended and the Tribunal has been created providing for an appeal against all the claims under Section 7-I of the Act, this Court by order dated 31.01.2000 directed the petitioner to approach the Tribunal. It is pursuant to the order of this Court, the earlier order dated 12.09.1997 was also furnished to the petitioner. (k) Thereafter, the petitioner preferred two appeals. The first appeal was against the order dated 06.01.2000 determining the contributions payable under Section 7-A of the Act. Before the Tribunal, as a condition precedent, the petitioner deposited a sum of Rs.37,000/- for entertainment of the appeals. But however, the said appeals were dismissed by the Tribunal for default. (l) Subsequently, two writ petitions were filed before this Court in W.P.Nos.16651 and 16652 of 2000. Those writ petitions were allowed and the second respondent was directed to consider the matter afresh. Before the second respondent, it was argued that Lingam Press was a Proprietary concern and Kaithari Achagam was run under partnership. Because of the agreement that the legal dues payable to the erstwhile employees of Kaithari Achagam will be https://hcservices.ecourts.gov.in/hcservices/ settled by the partners of the erstwhile press, it does not mean that the partnership has been taken over as a going concern. It was also argued that merely because one or two employees of the erstwhile firm joined the service of the new Press that it is a going concern and that it was a transfer of business. Notwithstanding these objections, the second respondent rejected the case of the petitioner. (m) It is the stand of the second respondent that payments were made towards cleaning, repairing and freight and general expenses. During the year 1970-1980, 19 persons were paid salary and the attendance register did not tally with the wage register and the employer did not bring the books of accounts for the period from 1975 to 1978. It is also stated that the agreement dated 31.12.1974 clearly undertake to own the assets and dispose of the liabilities. When the buyer agreed to take over the establishment along with the assets and liabilities, it is for him to meet out the liabilities of the earlier Management. The licence was also continued by the Municipality. The petitioner's father M.K.Swamy was the Manager of the establishment and he has additional responsibilities. The resignation letters obtained from the erstwhile two employees for acknowledging the receipt of compensation cannot be believed. Therefore, the stand of the petitioner was rejected. (n) It is as against the said order passed under Section 7- A of the Act, the petitioner once again preferred an appeal to the first respondent – Tribunal under Section 7-I of the Act. The Tribunal took up the appeal on file as A.T.A.No.474(13)/2003. After hearing the parties, the Tribunal held that the erstwhile Press was covered by the provisions of the Act. Though it was run by a partnership, the petitioner company is a proprietary concern. But so long as the business continues as a Branch or as independent concern, the original character of the business remains. The mere investment of additional capital or existing machineries was re- started will not amount to a new establishment or a new factory. Therefore, it is open to the Department to treat it as a transfer of business and the petitioner was liable to pay provident fund and there was no escape from the liability. Aggrieved by the same, the petitioner has filed the present writ petition. 4.Even though the petitioner in the memorandum of appeal had referred to 17 enclosures, the Tribunal, though a statutory appellate Tribunal, did not deal with the same. In essence, the Tribunal did not consider the legal effect of those documents. The petitioner had produced the independent income tax assessment, resignation letters given by P.V.Hamsa and K.N.Manickam of the erstwhile Press, fresh licence issued by the Corporation in the name of the proprietor and also the stamped receipts given by P.V.Hamsa and K.N.Manickam settling their amounts, it is unfortunate that the Tribunal did not deal with the documents. But nevertheless, an attempt was made by the second respondent by filing an elaborate counter affidavit to justify the order passed by the Tribunal. It must be noted that in a writ of certiorari, a https://hcservices.ecourts.gov.in/hcservices/ counter affidavit cannot supply reasons or materials to justify the orders passed by the Tribunal and on the other hand, the second respondent reiterated the reasons given by him in the earlier order. 5.In the judgment of the Supreme Court in Sayaji Mills Ltd., Vs. Regional Provident Fund Commissioner reported in 1984 (Supp) SCC 610. The facts of the case was that the mill was functioning in the name of Hirji Mills Ltd., dealing with manufacture and sale of textile goods. The said company was ordered to be wound up by the High Court of Bombay and in the sale effected by the Official Liquidator, the Sayaji Mills Limited purchased the fatory. The workmen earlier engaged were discharged and the goodwill of the company in liquidation was not acquired. There was also discontinuance of the work of the factory for sometime. The factory started on 12.11.1955 and therefore, fresh hands were upheld. The company claimed that it is a new factory and were not liable to pay the dues to the Provident Fund Department as a continuation concern. The Supreme Court rejecting the stand of the employer, has held as follows:- "What is of significance is that a substantial number of workmen and staff who were working under the former management had been employed by the appellant though it is claimed that they had entered into new contracts of employment. Mere investment of additional capital or effecting of repairs to the existing machinery before it was restarted, the diversification of the lines of production or change of ownership “would not amount to the establishment of a new factory attracting the exemption under Section 16(1)(b) of the Act for a fresh period of three years." 6.But however, in the very same judgment, the Supreme Court referred to its earlier judgment in Provident Fund Inspector, Trivandrum Vs. Secretary, N.S.S. Co-operative Society, Changanacherry reported in 1970 (1) SCC 50. In that case, a Printing Press was acquired by a Co-operative Society and established a new press and claimed protection under Section 16(1) (b). In that case, the evidence showed that after the purchase, a new owner had come in the place of the former owner, the work of the press was stopped on the date of the sale and it was started after a break of three months. The machineries in the press was altered and the persons employed previously were not continued in service. Fresh recruitment of workmen had taken place and out of these workmen, only six were taken and compensation was paid to all the workers at the time of sale by the former owner. Therefore, it was presumed that it was a new establishment. The Supreme Court distinguishing the case of the NSS N.S.S. Co-operative Society, Changanacherry (cited supra) held that in Sayaji Mills case (cited supra) 70% of the former workers were re-employed and there was no change of machineries and the interruption of work had taken place only due to the order of wounding up proceedings and therefore, Sayaji Mills case (cited supra) stood in a different footing. https://hcservices.ecourts.gov.in/hcservices/ 7.It must be noted that the Tribunal, in the present case, relied upon the Sayaji Mills case (cited supra) heavily. But Sayaji Mills case (cited supra) arose before the amendment to the Act and introduction of Section 17-B by the Central Act 40 of 1973 with effect from 01.11.1973, which reads as follows: "17-B. Liability in case of transfer of establishment. - Where an employer, in relation to an establishment, transfers that establishment in whole or in part, by sale, gift, lease or licence or in any other manner whatsoever, the employer and the person to whom the establishment is so transferred shall jointly and severally be liable to pay the contribution and other sums due from the employer under any provision of this Act or the Scheme or [the [Pension] Scheme or the Insurance Scheme], as the case may be, in respect of the period up to the date of such transfer. Provided that the liability of the transferee shall be limited to the value of the assets obtained by him by such transfer." 8.It is not the case of liability arising out of the payment by the erstwhile employer to the transferee. On the other hand, what is contended is that Lingam Press is not a new establishment and it is an old establishment liable to be covered by the provisions of the Act. In the present case, the admitted facts shows that the machineries of the erstwhile press were purchased by a Proprietor and was run as a Proprietary concern in a different area and none of the erstwhile employees, excepting two, were taken in the new Press. Even those two employees had swear relationship with the former employer and settled their accounts as per the stamped receipts given by them, which is not disputed by the Department. The present Press is having employees not more than 6, and hence, it is not covered by the provisions of the Act. Merely because the agreement executed by the proprietor showed that they are liable to meet all the liabilities, it does not mean that the Press started by him is nothing but a own press. Merely because the agreement, the proprietor has agreed to collect the dues and to discharge the pass liabilities, it cannot be said that it is a continuing business. 9.In this context, it is necessary to refer to the judgment of the Supreme Court in Union of India Vs. A.S. Amarnath reported in 1998 (9) SCC 724. In paragraphs 1 and 2, it was observed as follows: "1..... The workmen accepted the said closure compensation. The union of workmen representing them sought to challenge the said closure. The industrial dispute raised by them was not referred for adjudication by the State Government under the https://hcservices.ecourts.gov.in/hcservices/ provisions of the Industrial Disputes Act as it was held by the State Government that the closure was bona fide, valid and effective. The workmen accepted the said finding of the State Government. Thereafter, the respondent who was one of the sons of the deceased partner of the firm, Sarathi & Co. along with his brother A.S. Ramesh entered into a partnership on 13-2-1978 under the name and style of Sarathi Dye House which survived up to 1981 and thereafter got dissolved. On these facts, the High Court has noted that it could not be held that the business of the old firm was continued by the respondent in the new firm wherein the partners were entirely different and even though some of the workmen might have been employed by the new firm, it cannot be said that the old business was continued by the new concern. It was also observed that merely because the new entity is utilising the licence exploited by the old firm and the name of the new firm is identical with the name of the old firm and items of machinery utilised by the old firm have been availed of by the new concern, it cannot be said that the said business had continued and therefore, the claim of infancy benefit was not available to the new concern. These are pure finding of facts based on relevant evidence. In our view, it requires no interference under Article 136 of the Constitution. 2. Learned counsel for the appellants relied upon two decisions of this Court, in the case of Sayaji Mills Ltd. v. R.P.F. Commr. and in the case of R.P.F. Commr. v. Naraini Udyog. So far as the first decision is concerned, it was found on facts by this Court that temporary cessation of business by a concern because of winding-up proceeding cannot result into establishment of a new concern once the auction-purchaser under the orders of the Court had restarted the very same concern after purchasing it in any winding-up proceeding. The said decision is based on its own facts and therefore, cannot be pressed into service in the present case. This is not a case of temporary cessation of the erstwhile business of the concern because of any order of the Court. On the other hand, it was a case of closure which was held bona fide and accepted by the workmen by taking the closure compensation from the erstwhile employer. In the latter decision, this Court was concerned with an entirely different question under Section 7-A of the Act. Two companies were found to have functional unity and integrality and therefore, they can be clubbed as per the provisions of Section 7-A of the Act for the purpose of applicability of the Act. The finding reached by the Commissioner in that case clearly indicated that though for namesake https://hcservices.ecourts.gov.in/hcservices/ they were treated to be two concerns, yet truly speaking, they were part and parcel of one company. On these facts, therefore, Section 7-A was found applicable by this Court. There is no such question in the present case. We are concerned with the question of infancy benefit claimed by the respondent which is found justifiably available to the respondent on the facts of the present case. In the result, the appeal fails, and is accordingly dismissed." 10.In view of the above, the order passed by the Tribunal is clearly erroneous and liable to be interfered by this Court. Accordingly, the order dated 13.04.2010 passed by the first respondent Tribunal in ATA No.474 (13) 2003 confirming the order dated 30.05.2003 of the second respondent stands set aside and the writ petition is allowed. However, the parties are allowed to bear their own costs. In view of the order of the respondents are set aside, the petitioner is entitled for refund of the amount deposited before the Tribunal, pursuant to the order of the Tribunal as well as the order passed by this Court, in full. Consequently, connected miscellaneous petition is closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar TK To 1.The Presiding Officer Employees' Provident Fund Appellate Tribunal (Ministry of Labour & Employment, Government of India) SCOPE MINAR, CORE II, 4th Floor, Lakshmi Nagar District Centre, Lakshmi Nagar, New Delhi – 110 092. 2.The Assistant Provident Fund Commissioner EPF Organisation Bhavishyanidhi Bhavan Dr.Balasundaram Road, Coimbatore – 641 018. + 1 cc to Mrs. T.S. Gopalan & Co Associate SR.32112 + 1 cc to Mr.K. Ramu, SR.32130 WRIT PETITION NO.8896 OF 2010 NSM(CO) Eu 14.6.11 https://hcservices.ecourts.gov.in/hcservices/