M/S Shri Krishna Polyurithane ... vs Asstt. Provident Fund ...
2010 Latest Caselaw 5779 Del

                                                              UNREPORTABLE


*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                 W.P. (C) No.8417/2010


                                          Date of Decision: December 20, 2010


       M/S SHRI KRISHNA POLYURITHANE INDUSTRIES PVT LTD
                                                     ..... Petitioner
                       through Mr. Anil Sapra, Senior Advocate with
                       Dr. Saif Mahmood, Mr. Maneesh Goyal &
                       Mr. Sumant De, Advocates

                        versus


       ASSTT. PROVIDENT FUND COMMISSIONER & ANR
                                              ..... Respondents
                      through Mr. R.C.Chawla, Advocate with
                      Mr. Ankit Kohli, Advocate

       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? No
2.     To be referred to the reporter or not? No
3.     Whether the judgment should be reported in the 'Digest'? No

REKHA SHARMA, J. (ORAL)

This writ-petition has been preferred against the order of the

Employees' Provident Fund Appellate Tribunal (in short, called the

'Tribunal') dated August 31, 2010 dismissing an appeal preferred by

the petitioner against the order passed under Section 7A of the

Employees' Provident Funds & Miscellaneous Provisions Act, 1952

(hereinafter called the 'Act').

The case of the petitioner, namely M/s Shri Krishna Polyurethane

Industries Private Limited is that the Regional Provident Fund

Commissioner has made the Act applicable to the petitioner-firm by

clubbing the employees of another firm, namely, M/s Legend Interiors

on the basis that both the firms are running their business from the

same premises; one of the Directors of the two firms, namely,

Shri Sanjay is common; and, they are also using a common telephone.

Aggrieved by the order so passed, the petitioner preferred an appeal to

the Tribunal which, as noticed above, was dismissed on

August 31, 2010.

It is submitted by learned Senior counsel for the petitioner that

the Tribunal rather than dealing with the submission of the petitioner

that the employees of the petitioner's firm and the other firm,

M/s Legend Interiors could not be clubbed, proceeded on the

assumption that there were not two but three establishments which

were running from the same premises and that if the employees of all

the three firms are taken together, the petitioner-firm is covered by

the Act.

On a perusal of the impugned order, I do find that the Tribunal

has proceeded on the basis that the three establishments are located

at one place and they have a common control of the management. It

is not disputed by learned counsel appearing for the Regional

Provident Fund Commissioner that the order passed under Section 7A

of the Act refers to only two and not three firms. In this view of the

matter, the order of the Tribunal reflects non-application of mind.

Hence, I deem it proper to remand the case to the Tribunal with the

direction to examine the issue in the light of the submissions made by

the petitioner and in the light of the facts as stated by the Regional

Provident Fund Commissioner.

In view of the above, the order dated August 31, 2010 is

set-aside with a direction to the Tribunal to reconsider the matter after

hearing the parties. The parties are directed to appear before the

Tribunal on January 17, 2011.

With this direction, the writ-petition is disposed of.

REKHA SHARMA, J.

DECEMBER 20, 2010 ka