Kerala High Court
M/S. Travancore Restaurant vs The Assistant Provident Fund ... on 28 June, 2024
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
WP(C) NO. 12635 OF 2011
PETITIONER:
M/S. TRAVANCORE RESTAURANT,
K. K. ROAD, KOTTAYAM - 686001,
REP. BY ITS MANAGING PARTNER,MR. THOMAS MATHEW.
BY ADV.
SRI. K. PAUL KURIAKOSE
RESPONDENTS:
1 THE ASSISTANT PROVIDENT FUND COMMISSIONER,
EMPLOYEES PROVIDENT FUND ORGANIZATION,
SUB REGIONAL OFFICE, KOTTAYAM - 686001.
2 EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL,
SCOPE MINIAR, CORE-II, 4TH FLOOR,
LAKSHMI NAGAR, NEW DELHI-110092.
3 UNION OF INDIA,
REP. BY ITS SECRETARY, MINISTRY OF LABOUR,
GOVERNMENT OF INDIA, NEW DELHI - 110092.
BY ADVS.
SRI. P. VIJAYAKUMAR - ASG OF INDIA
SRI. JOY THATTIL ITOOP - SC - EPF ORGANISATION
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
28.06.2024 ALONG WITH WP(C).12636/2011, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 12635 & 12636 OF 2011
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
WP(C) NO. 12636 OF 2011
PETITIONER:
M/S. PUNJABI RESTAURANT,
KALARICKAL BAZAR, KOTTAYAM-686 001,
REPRESENTED BY ITS MANAGING PARTNER, MR. C. LUKE.
BY ADV.
SRI. K .PAUL KURIAKOSE
RESPONDENTS:
1 THE ASSISTANT PROVIDENT FUND COMMISSIONER,
EMPLOYEES PROVIDENT FUND ORGANIZATION,
SUB REGIONAL OFFICE, KOTTAYAM - 686 001.
2 EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL,
SCOPE MINIAR, CORE-II, 4TH FLOOR,
LAKSHMI NAGAR, NEW DELHI-110 092.
3 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY, MINISTRY OF LABOUR,
GOVERNMENT OF INDIA, NEW DELHI-110 092.
BY ADVS.
SRI. P. VIJAYAKUMAR - ASG OF INDIA
SRI. JOY THATTIL ITOOP - SC - EPF ORGANISATION
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
ON 28.06.2024 ALONG WITH WP(C).12635/2011, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 12635 & 12636 OF 2011
3
DINESH KUMAR SINGH, J.
--------------------------
W.P.(C) Nos. 12635 & 12636 of 2011
-------------------------
Dated this the 28th day of June, 2024
JUDGMENT
1. These writ petitions have been filed impugning the orders passed by the Assistant Provident Fund Commissioner under Section 7A and the Appellate Tribunal under Section 7I read with Section 7L of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952.
2. After considering the evidence brought by the parties including the report of the Enforcement Officer, the Assistant Provident Fund Commissioner has come to the conclusion that M/s. Punjabi Restaurant, Kottayam and M/s. Travancore Restaurant, Kottayam are under one and the same establishment and, therefore, the employees of both the Restaurants are to be clubbed together to see whether the establishment come within the purview of the provisions of EPF Act or not.
3. After perusing the report and evidence, the Assistant Provident Fund Commissioner has recorded the following findings;
(1) Shri C. Luke is the Managing Partner of both the establishments viz M/s. Punjabi Restaurant, Kottayam and M/s. Travancore WP(C) NO. 12635 & 12636 OF 2011 4 Restaurant, Kottayam during November 2002. (2) Two partners viz. Shri Thomas Joseph and Shri. C. Luke (2nd and 3rd partners in Travancore Restaurants) are common in both the establishments.
(3) Fourth partner of M//s. Travancore Restaurant Kottayam viz. Shri. Thomas Mathew was a partner of M/s. Punjabi Restaurant earlier and the wife Smt. Tara Thomas is a partner of M/s. Punjabi Restaurant, Kottayam.
(4) 1st and 5th Partner of M/s. Travancore Restaurnat are the family members of the partners of M/s Punjabi Restaurant.
(5) Both the units are engaged in the same line of business viz. Hotel.
(6) Accounts of both the units are maintained in one office i.e. Office of Shri. C. Luke (Building No. 34).
(7) Shri. Manoj Kumar, Accountant is maintaining the accounts of both the units and is having salary from both the units as per Ledger Accounts (salary) maintained in both the units.
(8) The argument of Advocate that both the firms are different and maintaining separate WP(C) NO. 12635 & 12636 OF 2011 5 Books of accounts have no relevane since registration certificate in respect of both the establishments is seen issued in the name of Sri. C. Luke, Managing Partner.
(9) Preliminary information in respect of both the establishments were furnished separately under the signature of Shri. C. Luke, in his capacity as Managing Partner.
(10) Two employees viz. Manoj Kumar and Sri. M. C. Kunnath are marking attendance in the office of Sri. C. Luke and the employment strenght furnished on behalf of M/s. Punjabi Restaurant is inclusive of both the above employees.
The above facts clearly show that there is unity of Management, unity of employment, and functional integrality between M/s Punjabi Restaurant and M/s Travancore Restaurant, Kottayam and M/s. Travancore Restaurant is a venture of the owners of M/s Punjabi Restaurant.
4. The said orders have been affirmed by the Appellate Tribunal by the impugned order. It has been held that the establishment has been employed more than twenty employees and, therefore, it would come within the purview of the provisions of the EPF Act. WP(C) NO. 12635 & 12636 OF 2011 6
5. The question whether the petitioner comes within the purview of the EPF Act on the strength of the employees working in the establishment is a question of fact. This Court in exercise of its jurisdiction under Article 227 of the Constitution of India would not like to revisit the evidence and come to a different finding. I, even otherwise do not find that the findings recorded by the Assistant Provident Fund Commissioner or the Appellate Authority are without any basis or without supporting evidence. In view thereof, I do not find that there is any substance in these writ petitions which require an interference by this Court in exercise of its power under Article 227 of the Constitution of India. Thus, these writ petitions fail and the same are hereby dismissed.
Sd/-
DINESH KUMAR SINGH JUDGE Svn WP(C) NO. 12635 & 12636 OF 2011 7 APPENDIX OF WP(C) 12635/2011 PETITIONER'S EXHIBITS EXHIBIT P1 PHOTOSTAT TRUE COPY OF PARTNERSHIP DEED OF PARTNERSHIP OF THE PETITIONER FIRM DATED 19.08.2002.
EXHIBIT P2 PHOTOSTAT TRUE COPY OF ORDER DATED 31.05.2004 OF THE 1ST RESPONDENT EXHIBIT P3 PHOTOSTAT TRUE COPY OF DATED 18.01.2011 IN IA NO.489(7)2004 OF THE EMPLOYEE'S PROVIDENT FUND APPELLATE TRIBUNAL WP(C) NO. 12635 & 12636 OF 2011 8 APPENDIX OF WP(C) 12636/2011 PETITIONER'S EXHIBITS EXHIBIT P1 PHOTOSTAT TRUE COPY OF SUPPLEMENTAL DEED OF PARTNERSHIP OF THE PETITIONER FIRM DATED 01.04.1995.
EXHIBIT P2 PHOTOSTAT TRUE COPY OF ORDER DATED 31.05.2004.
EXHIBIT P3 PHOTOSTAT TRUE COPY OF DATED 04.02.2011 IN IA NO.489(7)2004 OF THE EMPLOYEE'S PROVIDENT FUND APPELLATE TRIBUNAL RESPONDENT'S EXHIBITS EXHIBIT R1(A) TRUE COPY OF THE SUPPLEMENTARY PARTNERSHIP DEED MADE ON 01-04-1995, IN RESPECT OF THE PETITIONER.
EXHIBIT R1(B) TRUE COPY OF THE PARTNERSHIP DEED MADE ON 19-08-2002, IN RESPECT OF M/S. TRAVANCORE RESTAURANT.
EXHIBIT R1(C) TRUE COPY OF THE PRELIMINARY INFORMATION FURNISHED BY SRI. C. LUKE, IN RESPECT OF M/S. PUNJABI RESTAURANT.
EXHIBIT R1(D) TRUE COPY OF THE PRELIMINARY INFORMATION FURNISHED BY SRI. C. LUKE, IN RESPECT OF M/S. TRAVANCORE RESTAURANT.
EXHIBIT R1(E) TRUE COPY OF THE ORDER NO.KR/KTM/20149/ENF.I(2)/03/1407 DATED 02- 12-2003, ISSUED BY THE 1ST RESPONDENT.
EXHIBIT R1(F) TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN ATA NO.489(7)/2004 ON THE FILE OF THE EPF APPELLATE TRIBUNAL, NEW DELHI.