IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 OP.No. 1556 of 2001(I) -------------------------------- PETITIONER(S): ---------------------- HOTEL R.V.TOWERS, EAST NADA, GURUVAYOOR, REP.BY ITS MANAGING PARTNER, R.V.MUHAMMED. BY ADV. MR.PAULSON C.VARGHESE RESPONDENT(S): -------------------------- 1. UNION OF INDIA, REP.BY SECRETARY TO GOVERNMENT, MINISTRY OF LABOUR & REHABILITATION, NEW DELHI. 2. THE ASST. PROVIDENT FUND COMMISSIONER SUB REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, KALOOR. ADV. MR.N.N. SUGUNAPALAN, SC, P.F. FOR R2 MR.C.S.ABDUL SAMMAD, ADDL.CGSC FOR R1,2 MR.ABRAHAM THOMAS, CGC THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO. 2594/2001 IN OP. NO.1556/2001 DISMISSED 25.05.2009 SD/- ANTONY DOMINIC, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE LETTER NO.KR/KC/15710 ENF. II(2)/98/1698 DT. 1.6.98 ISSUED BY 2ND 2ND RESPONDENT. P2:- COPY OF THE PETITION DT. 22.10.99 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P3:- COPY OF THE WRITTEN STATEMENT DT. 23.11.2000 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P4:- COPY OF THE PROCEEDINGS DT. 22.12.01 OF THE 2ND RESPONDENT. R2(a):- COPY OF THE ADVERTISEMENT APPEARED IN THE MALAYALA MANORAMA DT. 12.1.1995. TRUE COPY P.A. TO JUDGE TSS ANTONY DOMINIC, J. ================ OP NO. 1556 OF 2001 (I) ===================== Dated this the 25th day of May, 2009 J U D G M E N T The prayer sought in this original petition is to quash Exts.P1 and P4 and to hold that the petitioners establishment, M/s Hotel R.V.Tower is not liable to be brought under the coverage of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. 2. Petitioner submits that Ext.P1 order was issued by the respondents covering the establishment of the petitioner under the Act on 1/6/98, w.e.f. April 1998. It being an ex parte proceedings, petitioner sought to get the same reopened by filing Ext.P2. Accordingly, it was reopened and petitioner filed Ext.P3 written statement. Enquiry under Section 7A was conducted and Ext.P4 order was issued overruling the objections raised and holding that the establishment is liable to be covered under the Act w.e.f. April 1998 and calling upon the petitioner to remit Rs.45047.40/- being the contribution for the period upto February, 1999. It is challenging this proceedings, the original petition is filed. OP 1556/01 :2 : 3. A reading of the impugned order shows that the contentions raised by the petitioner are that M/s Hotel R.V.Tower, the establishment in question, was not conducting any hotel or restaurant and therefore did not come within the purview of the notification No.GSR-704 dated 16/5/1961. It was also stated that the signatory to the statement of employment strength prepared at the time when the Enforcement Officer conducted inspection had no connection or ultimate control over the affairs of the establishment. 4. Yet another plea that was raised was that the establishment was inaugurated on 12/6/95 and therefore was eligible for infancy protection for 3 years from the date of its inauguration and hence coverage from April 1998 was erroneous. 5. All the aforesaid contentions have been dealt with in detail in Ext.P4 and are rejected. 6. In so far as the contention that the petitioner was not conducting any hotel or restaurant business and therefore was outside the purview of the notification dated 16/5/1961 is concerned, reference has been made in Ext.P4 about the advertisement issued by the petitioner on 12/1/95 on the occasion OP 1556/01 :3 : of the inauguration of the hotel and a copy of the advertisement is produced along with the counter affidavit of the 2nd respondent as Ext.R2(a). The advertisement gives a clear picture of the business of the establishment, which included restaurants as well. Nothing has been placed on record either during the course of enquiry or even in this original petition to show that the conclusions arrived at by the authorities in this behalf is erroneous. If that be so, the plea raised by the petitioner before the 2nd respondent and reiterated in this original petition that the petitioner has not conducted any hotel or restaurant business to be covered under the Act is only to be rejected and I do so. 7. In so far as the employment strength is concerned, petitioner submits that the number of employees engaged never exceeded 20, in which event only, they have the obligation to be covered under the Act. True, a reading of para 11 of the order shows that the muster roll of the period from 5/97 to 2/98 and wage register for the period 8/97 to 1/98 were seen to have been produced before the 2nd respondent. This order also shows that on production of these documents, proceedings were adjourned with a specific direction to the petitioner to produce all supporting OP 1556/01 :4 : documents, but nothing was produced neither on the adjourned date nor at any time thereafter. The order also shows that the Enforcement Officer at the time of inspection verified the muster roll which disclosed employment of only 14 employees, but he found 7 other employees in the establishment, whose names were not mentioned in the records. The incompetence of the parties who signed the inspection report also has been duly dealt with in the impugned order and rejected. 8. In the light of this factual position and also in the absence of any documents produced by the petitioner to prove that the employment strength was below 20 at the relevant point of time, I cannot accept the unsustainable plea raised by the petitioner in this behalf. 9. Yet another point that was raised before the authorities and reiterated before me that the establishment commenced business only on 12/6/95 and therefore was entitled to enforcement protection as provided under Section 16(1)(d) of the Act. 10. As far as this point is concerned, here again apart from making this assertion, petitioner has not produced any document OP 1556/01 :5 : which were in their possession to substantiate this contention. On the other hand, their advertisement issued in the Malayala Manorama Daily dated 12/1/95 declaring the inauguration of the hotel has been relied on by the authorities. In the absence of any document from the side of the petitioner and in view of Ext.R2(a) advertisement issued, the finding rejecting the plea of the petitioner also deserves acceptance. 11. Thus, I do not find any merit in the contentions raised by the petitioner and therefore Exts.P1 and P4 are unassailable. Accordingly, the original petition is only to be dismissed and I do so. ANTONY DOMINIC, JUDGE Rp