1 22 wp 2341.11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2341 OF 2011 The Regional Provident Fund Commissioner .. Petitioner Vs. M/s. Nausainik Petrolium Services & Anr. .. Respondents Mr. Deepak Rai h/f Mr. Suresh Kumar for petitioner. Mr. S.K. More for Respondent no.2. CORAM: K.K. TATED, J. DATE : 6TH JULY, 2011 P.C. 1. Heard the learned counsel for the parties. 2. By this petition under Articles 226 and 227 of the Constitution of India, the Petitioner Provident Fund Authority challenges the order dated 18th October, 2010 passed by the learned Presiding Officer, Employees Provident Fund Appellate Tribunal, Camp at Pune, in ’ Appeal ATA No. 472 (9) of 2005 allowing Respondent no.1 - original Appellant s Appeal against the order passed by the Provident Fund ’ Authority under section 7-A of the Employees Provident Fund and ’ Miscellaneous Provisions Act, 1952 (hereinafter referred to as the “ said Act ) directing Respondent no.1 to deposit the dues. ’ 2 22 wp 2341.11.doc 3. A few facts of the matter are as under: Respondent no.2 M/s. Bharat Petroleum Corporation Ltd. allotted Petrol Pump in the name of M/s Guru Nanak Automobiles. On 9th April, 2001 the said M/s Guru Nanak Automobiles surrendered his license of the said Petrol Pump to the Respondent no.2. Thereafter, Respondent no.2 allotted the said Petrol Pump to present Respondent no.1. Thereafter, Respondent no.1 applied vide letter dated 6th May, 2004 for allotment of Code number and for coverage under the Employees Provident Fund and Miscellaneous Provisions Act, 1952. ’ The Enforcement Officer of Provident Fund Authority issued notice. Pursuant to the said application of Respondent no.1, the Assistant Provident Fund Commissioner issued show cause notice dated 29th June, 2004 to the Respondent no.1 returning the proposal for the coverage of Respondent no.1 under the said Act. It was stated in the said notice that initially the Petrol Pump was run by M/s Guru Nanak Automobiles prior to 9th April, 2001 and it was closed. At that time Code no. MH/90215 was allotted to the said Petrol Pump. Therefore, in view of section 17-B of the said Act, Respondent no.1 have to continue the same code. 3 22 wp 2341.11.doc 4. Respondent no.1 raised objection for continuing the old code of M/s Guru Nanak Automobiles on the ground that Respondent no.2 M/s Bharat Petroleum Corporation Ltd allotted them fresh licence to start the business. 5. Thereafter, the Provident Fund Authority has passed an order under section 7-A of the said Act holding that Respondent no.1 to continue code no. MH/90215 only. 6. Being aggrieved by the said order of the Authority under section 7-A of the said Act, Respondent no.1 preferred Review Application under section 7-B of the said Act. The said Review Application was rejected by the Assistant Provident Fund Commissioner by an order dated 11th May, 2005. 7. Being aggrieved by the said order, Respondent no.1 preferred Appeal before the Employees Provident Fund Appellate Tribunal being ’ Appeal ATA No. 472 (9) of 2005. In the said Appeal Memo, the Respondent no.1 raised several contentions including that they started altogether new business allotted by Respondent no.2. Therefore, they stated in their Appeal Memo that they learnt that all 4 22 wp 2341.11.doc the employees of M/s. Guru Nanak Automobiles had resigned and tendered their resignation to the Company on 8th April, 2001 on the ground that their Employees Provident Fund will be from the ’ Employees Provident Fund, Kandivli office. It is further pleaded in ’ their Appeal Memo that the impugned order passed by the Authority under section 7-B of the said Act is liable to be set aside as the Authority erred to appreciate that the Respondent no.1 is an independent and separate entity and is eligible for separate code and cannot be ordered to remit the amount in the code number of M/s Guru Nanak Automobiles with whom Respondent no.1 had no transaction whatsoever. 8. The Appellate Authority vide order dated 18th October, 2010 allowed the Appeal preferred by Respondent no.1 setting aside orders passed by the Provident Fund Commissioner under section 7A and 7B of the said Act. The Appellate Authority held that the Petitioner failed to produce on record any evidence to show that Respondent no.1 is engaged more than 20 persons. The Petitioner also failed to produce on record to show that the running business was taken over by Respondent no.1 from M/s Guru Nanak Automobiles. Considering these facts, the Appellate Authority held that section 17-B of the said 5 22 wp 2341.11.doc Act is not applicable in the present case and therefore, the Appeal preferred by Respondent no.1 was allowed. 9. The learned counsel appearing on behalf of Petitioner vehemently argued that the Appellate Authority erred in coming to the conclusion that Respondent no.1 is entitled to a new code number for its establishment. He submits that Hon ble Tribunal failed to ’ appreciate that a mere change in ownership or change in hand with the same nature of business activity does not make the establishment as new one. To support these submissions he relied on judgment in the matter of R.L. Sahni and Co. vs. Union of India (OI) reported in 1964 (9) FLR 184. The learned counsel appearing on behalf of Petitioner further submits that change of ownership of a establishment does not affect the applicability of the said Act. On the basis of these submissions, the learned counsel appearing on behalf of the Petitioner submits that the impugned order dated 18th October, 2010 passed by the Appellate Authority is liable to be set aside. In the present case, admittedly, Respondent no.2 M/s Bharat Petroleum Corporation Ltd. initially allotted licence to run the Petrol Pump in favour of M/s Guru Nanak Automobiles. Thereafter, on 9th April, 2011 M/s Guru Nanak Automobiles surrendered his licence to 6 22 wp 2341.11.doc Respondent no.2. At that time, said M/s Guru Nanak Automobiles was holding Code no. MH/90215. After surrender of the said licence, Respondent no.2 allotted the dealership in favour of Respondent no.1 to continue the said Petrol Pump. This itself shows that Respondent no.1 started his new business altogether though it is on the same plot or land with the same machinery; but the same is altogether new business in the name of the Respondent no.1. It is not pointed out by the learned counsel appearing on behalf of Petitioner that M/s Guru Nanak Automobiles assigned their right, title and interest of the said Petrol Pump directly in the favour of Respondent no.1. Therefore, it is not possible to accept the submissions made by the learned counsel appearing on behalf of Petitioner that Respondent no.1 is not entitled to new code number for his business. It is to be noted that code number is always allotted in favour of establishment/ company/ business concerned and not on the basis of premises on which the person starts business. Therefore, the Appellate Authority is right in holding that the business of the Respondent no.1 is not extension of the business of M/s Guru Nanak Automobiles. He also rightly held that the Respondent no.1 did not employ more than 20 employees. Considering these facts, I am of the opinion that the Appellate Authority rightly allowed the Appeal 7 22 wp 2341.11.doc preferred by the Respondent no.1 holding that the Respondent no.1 does not engage more than 20 persons and the said business of Respondent no.1 is not the extension of M/s Guru Nanak Automobiles and therefore, section 17B of the said Act is not applicable. Considering these facts and submissions made by the learned counsel appearing on behalf of Petitioner, Petition is dismissed. 10. No order as to costs. (K.K. TATED, J.)