1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ----------------------------------------------------------------------------------------- SPL. APPL. WRIT No. 96 of 1997 RPF COMMISSIONER RAJASTHAN JAPR AND ORS V/S M/S PRINT COAT INDUSTRIES Mr. Anil Bhandari for Mr.N.M.Lodha , for the appellant / petitioner Mr. Ramit Mehta , for the respondent Date of Order : 22.7.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI MANAK LALL MOHTA,J. ORDER ----- This appeal seeks to challenge the order of learned Single Judge dated 22.08.95, setting aside the order of the Regional Provident Fund Commissioner dated 06.06.88, passed under section 7-A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, directing the respondents to make payments of the contribution and other amounts. In the order dated 06.06.88, it was found by the learned Commissioner that 'Jaltedeep, 'Tarun Rajasthan' and the respondent Print Coat Industries, constituted a single establishment, for the purposes of the Act, by virtue of Section 2-A of the Act. The main finding is recorded in para 6, 7 and 8 of the order. The whole thrust of the finding is that the three 2 concerns are owned by the joint Hindu family. May be that the different members of the family are proprietors ,or partners of different concern, but then they are the descendants of common ancestor, one Mohan Raj Mehta. The premises are common, and that the respondent had purchased the lithographers and offset printers, by way of expansion , for printing of the news paper 'Jaltedeep' and 'Tarun Rajasthan' and other, on job work basis, and that one, Shri Padamchand was, in fact, looking after the work of the three units, and therefore, the three have been taken to be one industry. This order was assailed by the respondent by filing writ petition, obviously because at that time the order was not appealable. The learned Single Judge found, relying upon the judgment of Hon'ble Supreme Court in Management of Pratap Press vs. Delhi Press Workers' Union (AIR 1960 SC 1213), that all the three establishments have already been independently registered with the authorities under the Act, and the three establishments are independent of each other, and merely because the three newspapers are printed by the respondent, it cannot be said that all the three form, one establishment. Thus, the finding recorded by the learned Commissioner was found to be wrong . Hence, the present writ petition was allowed as above. Assailing the impugned judgment, the learned counsel placed strong reliance on the aforesaid Pratap Press's case (supra), so also a later 3 judgment of Hon'ble Supreme Court in Associated Industries (P) Ltd. vs. R.P.F. Commissioner, reported in (AIR 1964 SC 314) and submitted that the impugned judgment is required to be set aside, and the order of the learned Commissioner, is required to be restored. Learned counsel for the respondent, on the other hand, supported the impugned judgment . We have considered the rival submissions, and have gone through the two judgments of Hon'ble Supreme Court. So far as judgment in Pratap Press's case (supra) is concerned, that was a case relied on by the appellant, before the learned Commissioner also. Even though that is a case relating to the provisions of Bonus Act, as the controversy therein was, that in cases where an interprenier owns several industrial units , whether the units are one , or distinct and separate, for the purposes of ascertaining the availability of surplus for distribution of bonus. After considering various cases, including the previous judgments of Hon'ble Supreme Court, guidelines were laid down as to how the industries are to be considered. Following the earlier judgment in Associated Cement Co. Ltd. vs. Their Workmen (AIR 1960 SC 56), it was held, that it was impossible to lay down any one test as an absolute and invariable test for all cases. However, certain tests might be useful in deciding whether, two units form part of the same establishment. The tests 4 considered were, being Unity of ownership, unity of management, and control, unity of finance and unity of labour, unity of employment and unity of functional “integrality” being the tests applied in the case relied on. Then it was held that where two units belong to a proprietor, there is always likelihood of one consolidated management. Therefore, in all cases, the Court has to consider with care, how far there is functional “integrality”, meaning thereby, such functional inter dependence, that one unit cannot exist conveniently and reasonably without the other, and on the further question, whether in matters of finance and employment, the employer has actually kept the two units distinct or integrated. After laying down these principles, the case was considered and the different units were found to be distinct industrial units. So far as the Associated Industries' case (supra) is concerned , that was a case, of course, relating to the controversy about the applicability of the present Act itself . In that case, one of the aspects was, that out of the two industries, one of the industry was a scheduled industry, while the other one was not. That aspect need not detain us. Then coming to the relevant aspect, it was held that if a factory runs more industries than one, one of which is the primary and the dominant industry, and the other are its feeders, and can be regarded as subsidiary, minor or incidental industries in that sence, then the character of the dominant and primary industry will determine the question as to whether the factory is an establishment, to 5 which the Act applies. Then it was further held in para 7 that the question about the subsidiary, minor or feeding industries, can legitimately arise only where it is shown that the factory is really started for the purpose of running one primary industry, and has undertaken other subsidiary industries, only for the purpose of sub-serving and feeding the purposes and objects of the primary industry; in such a case , these minor industries merely serve as departments of the primary industry; otherwise if the industries run by a factory are independent, , or are not so integrated as to be treated as part of the same industry, the question about the principal and the dominant character of one industry as against the minor or subsidiary character of another industry, does not fall to be considered. Thus, even on the principles propounded in the two judgments, the predominant consideration is the existence of functional integrality, or one being primary industry and others being subsidiary, or minor, or feeding industry, it is only in those cases that they can be be treated to be one. It may at once be observed that, even in the order dated 06.06.88, the learned Commissioner has not recorded any findings on these aspects, to arrive at a conclusion, about three being one establishment. Rather, the learned Commissioner, has proceeded on the aspect of unity of the ownership, or unity of finance, common use of the telephone numbers etc. which are not the decisive considerations, apart from the fact that even unity of ownership has not been precisely found , rather in a vague manner it was 6 found, that the establishments belong to one joint Hindu family , though different units belong to different members in the family. In that view of the matter, even on the principles propounded in the two judgments of the Supreme Court referred to above, we do not see any ground to interfere with the order of the learned Single Judge. The appeal has no force, and is dismissed. ( MANAK LALL MOHTA ),J. ( N P GUPTA ),J. /l.george /