IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.06.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.1410 of 2011 and M.P.No.1 of 2011 A.L.Subramanian ...Petitioner Vs. 1.Employees' Provident Fund Appellate Tribunal, Ministry of Labour and Employment, Government of India, Scope Minar, CORE-II, 4th Floor, Laxmi Nagar District Centre, Laxmi Nagar, New Delhi – 110 092. 2.The Assistant Provident Fund Commissioner, Employees' Provident Fund Organisation, Regional Office, Bhavishyanidhi Bhavan, Post Box No.3875, Dr.Balasundaram Road, Coimbatore – 18. 3.The Enforcement Officer, Employees Provident Fund Organisation, Regional office, Bhavisya Nidhi Bhavan, Post Box No.3875, Dr.Balasundaram Road, Coimbatore -18. ...Respondents Petition under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus, Calling for the records pertaining to ATA 508(13)2007 and quash the Order dated 8.1.2010 passed by the 1st respondent confirming the Order dated 11.4.2007 passed by the 2nd respondent and directing the Respondent herein to pay a sum of Rs.75,487.10 towards Provident Fund Insurance Fund, Employees Pension Fund contribution and administrative charges towards Provident Fund and Insurance Fund for the period from 6/2005 to 8/2006 to the Petitioner. For Petitioner : Mr.Mohd.Nazrullah for Mr.K.V.Shanmuganathan For Respondents : Mr.V.Vibhishanan for R2 and R3 https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner is a Proprietor of a club called M/s.A.L.S.Garden Club. He has filed the present writ petition, challenging an order passed by the Employees Provident Fund Appellate Tribunal made in ATA 508(13)2007 dated 08.01.2010. 2. When the matter came up on 24.01.2011, this Court ordered notice of motion in the writ petition and also recorded the notice taken by the learned Standing Counsel for respondents 2 and 3. This Court granted an interim stay on condition that the petitioner pays 50% of the amount demanded within a period of four weeks. 3. On notice from this Court, the respondents have filed a counter affidavit dated 01.03.2011. 4. The case of the petitioner was that a club by name M/s.Emperor Club was a partnership firm comprising of two partners. The petitioner purchased their movable and immovable properties. After purchasing the said properties, he started a new business in the name and style of M/s.A.L.S.Garden Club on 30.06.2005. He had also engaged new hands for running the club. The employees of the former establishment had duly settled their claims with their former employer M/s.Emperor Club. Prior to the sale, the said firm had suspended its operation and dissolved the firm with effect from 24.05.2005. The suspension of operation and the subsequent sale of immovable properties belonging to the firm was duly intimated to the PF organisation. 5. The petitioner had also registered his club with the Office of the Commercial Tax Office, Perur Circle, Coimbatore. But however the previous club which was covered by the provisions of the EPF Act did not pay the dues to the Department for the period from 6/2005 to 8/2006. The said dues worked out to Rs.75,487.10. The third respondent Recovery Officer summoned the petitioner pursuant to an enquiry initiated under Section 7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (for short PF Act). The petitioner also participated in the said enquiry. But however, by an order dated 11.04.2007, the second respondent held that the petitioner Club is covered by the provisions of the PF Act and it is not a new establishment and was also liable to pay the arrears of the past dues. Notwithstanding the fall in strength of the workers, the Act continues to apply in terms of Section 1(5) of the PF Act. 6. Challenging the said order, the petitioner preferred an appeal to the first respondent Tribunal under Section 7I of the PF Act. The said appeal was taken on file by the Tribunal as ATA 508(13)2007. After hearing the counsel for the petitioner, the Tribunal dismissed the appeal. The Tribunal held that the petitioner had purchased the property of the previous club along https://hcservices.ecourts.gov.in/hcservices/ with the business. The Memorandum filed by him showed that not only the property had been purchased but also the business. In fact it is specifically written that the business was sold to the petitioner. It was also stated that the previous club M/s.Emperor Club had engaged 20 persons and was covered by the provisions of the PF Act. Since there was only change in ownership, notwithstanding the reduction in number of work force, the Act continues to apply. With reference to the liability of the past dues, a reference was made to the judgment in Chinji Hutta Bone Mill Pvt. Ltd v. RPFC reported in (1968) LAB IC 148. In that case, it was held that liability will be attached to the factory once there is a factory and process of manufacturing continues. The liability under the statute continue irrespective of any change of ownership or management of that factory. Challenging the said order, the writ petition came to be filed. 7. Mr.Mohd.Nazrullah, learned counsel for the petitioner contended that the order passed by the Tribunal confirming the order of the second respondent is erroneous. What was purchased by him was mere properties and not the business. The dues of the previous club cannot be fastened on the present owners and the employees working in the previous club had settled their dues. After the properties were purchased, the petitioner had started a new Club and engaged new persons. Hence, the prohibitory order issued by the respondents purporting to exercise their power of execution was erroneous. 8. Per contra, in the counter affidavit, it was stated that the petitioner took over the business of M/s.Emperor Club through a Memorandum of Understanding signed between him and the Club followed by irrevocable power of attorney. The mere suspension of business by the previous owner does not amount to closure of the establishment. Even the Registration Certificate issued by the Commercial Tax Officer stands in the name of the Club and not in the name of the Proprietor. Therefore, there was no case for interfering with the order passed by the Tribunal. 9. In the present case, it must be noted that in order to overcome the claim made by the employees, like the petitioner, Section 17B of the PF Act was introduced. Section 17B 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 https://hcservices.ecourts.gov.in/hcservices/ shall be limited to the value of the assets obtained by him in such transfer." 10. Therefore, even if the subsequent purchaser purchases a business by way of sale, they are liable to pay the contribution up to the date of transfer of the establishment. But when the business continues to be same, then the application of the Act will continue to apply in the light of Section 1(5) of the PF Act notwithstanding there is a fall in the establishment strength. 11. In the light of the above, there is no case made out to interfere with the order passed by the Tribunal. Hence, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed. svki Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.Employees' Provident Fund Appellate Tribunal, Ministry of Labour and Employment, Government of India, Scope Minar, CORE-II, 4th Floor, Laxmi Nagar District Centre, Laxmi Nagar, New Delhi – 110 092. 2.The Assistant Provident Fund Commissioner, Employees' Provident Fund Organisation, Regional Office, Bhavishyanidhi Bhavan, Post Box No.3875, Dr.Balasundaram Road, Coimbatore – 18. 3.The Enforcement Officer, Employees Provident Fund Organisation, Regional office, Bhavisya Nidhi Bhavan, Post Box No.3875, Dr.Balasundaram Road, Coimbatore -18. https://hcservices.ecourts.gov.in/hcservices/ + 1 cc to Mr. K.V. Shanmuganathan, Advocate SR No.37112 + 1 cc to Mr. V. Vibhishanan, Advocate SR No.36846 KK(CO) SR/5.7.2011 ORDER IN W.P.No.1410 of 2011 https://hcservices.ecourts.gov.in/hcservices/