At, High Court of Kerala
By, THE HONOURABLE MR. JUSTICE A.K. JAYASANKARAN NAMBIAR
For the Petitioner: Pirappancode V.S. Sudhir, SC. For the Respondents: Mathew George Vadakkal, Advocate.
1. The Central Board of Trustees of the Employees Provident Fund Organisation [hereinafter referred to as 'EPFO'] is the petitioner in the writ petition, where a challenge is made against Ext.P3 order of the Employees Provident Fund Appellate Tribunal. A perusal of the facts in the writ petition would indicate that an enquiry was made against the 1s
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respondent establishment, for the purposes of ascertaining whether they were avoiding compliance with regard to payment of Employees Provident Fund dues in respect of the workers engaged in the said establishment. The enquiry proceedings culminated in Ext.P2 order passed by the Assistant Provident Fund Commissioner, Thiruvananthapuram, finding that amounts were due towards EPF contribution in respect of the employees of the 1st respondent establishment, pursuant to a clubbing of two units in respect of which the management was common. The two units that were clubbed, comprised of one that was engaged in a watch business and the other engaged in jewellery business. The clubbing of the two units for the purposes of Section 2A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, was resorted to by the Assistant Commissioner solely on the ground that there were common members forming the management of the two units, and therefore, it was found that the two units had to be treated as a single unit for the purposes of determining the liability of the respondent, to pay dues under the EPF Act. It would appear that, against Ext.P2 order of the Assistant Provident Fund Commissioner, the 1st respondent preferred an appeal before the Employees Provident Fund Appellate Tribunal. By Ext.P3 order, the Appellate Tribunal allowed the appeal by setting aside Ext.P2 order of the Assistant Provident Fund Commissioner.2. I have heard the learned counsel appearing on behalf of the petitioner as also the learned Government Pleader appearing on behalf of the respondents .On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find from a perusal of Ext.P3 order that, contrary to the tests adopted by the Assistant Provident Fund Commissioner, to justify a clubbing of the two units that were managed by the 1st respondent, for the purposes of the Employees' Provident Funds and Miscellaneous Provisions Act, the Appellate authority applied the test of functional integrity, which was laid down by the Supreme Court in the decision in P ratap Press etc. v. Their work men - [(1960) 1 LLJ 497 (SC)] for the purposes of determining whether two units of an establishment can be clubbed for the purposes of Section 2A of the EPF Act. On an application of the said test of functional integrity, the Appellate authority found that, although there was a common management for the two units, the two units were engaged in separate lines of business, and it could not be said that on a closure of one of the units, the other unit would also cease to exist. The Appellate authority therefore found that, in the absence of any functional integrity between the two units, the units could not be clubbed for the purposes of EPF Act, and therefore, the finding to the contrary entered by the Assistant Provident Fund Commissioner was not legally sustainable. On a perusal of the reasoning of the Appellate Tribunal, I am of the view that Ext.P3 order passed by the Appellate Tribunal does not require any interference in these proceedings under Article 226 of the Constitution of India. The writ petition, in its challenge against the same, therefore fails, and is accordingly dismissed.
"2017 (4) KLT 894,"