REGIONAL PROVIDENT FUND COMMISSIONER Vs. VICTORY SERVICE STATION

JUDGEMENT

(1.) By this writ petition, the petitioner has challenged the validity of the order dated 29.5.2000 passed by the E.P.F. Appellate Tribunal whereby the Appellate Tribunal set aside the order of the Regional Provident Fund Commissioner bringing M/s Victory Service Station and M/s Kapoor Service Station, two petrol pumps in the fold of Employees' Provident Fund and Miscellaneous Provision Act and the respondents were directed to file the returns.

(2.) Briefly, the facts are that M/s Kapoor Service Station was brought under the purview of the Act vide order dated 26.10.1999 along with M/s Victory Service Station on the ground that there was unity of management, control, supervision and ownership in respect of two service stations. M/s Victory Service Station consisted of three owners viz. Mr. B.M.Kapoor, Mr. Jitender Kapoor sort of Mr. B.M.Kapoor and Mr. Surinder Pal Singh while M/s Kapoor Service Station consisted of two partners viz. Mr. B.M.Kapoor and his son Mr. Jitender Kapoor. There was inter transfer of employees between the two petrol pumps. Manager, M.C.Bhudani of M/s Kapoor Service Station had made a statement that he was working with the management since 1969; the management was having another service station as M/s Victory Service Station, the workers were being transferred between the two service stations. He gave the names of three workers viz. Narender, Pramod & Vijay who, were transferred to M/s Victory Service Station from M/s Kapoor Service Station. He also stated that whenever there was shortage of staff at one station, the staff was called from another station. There were 14 employees shown in the employees' register of M/s Kapoor Service Station while M/s Kapoor Service Station was also running three tankers bearing registrations nos. DL 1G 1649, DIL 5334 and DL 1G 5350. These three tankers were having three drivers and three helpers, their names had not been shown in the employees' register. The Regional Provident Fund Commissioner after making enquiry and considering the material placed before him from both sides observed that there was common management, supervision and control. The unity of ownership was also clear because two partners were same in both the service stations i.e. M/s Victory Service Station and M/s Kapoor Service Station. So, he passed an order that employee strength of the establishments of M/s Kapoor Service Station and M/s Victory Service Station be clubbed together for the purpose of applicability of the Act. Against this order of Regional Provident Fund Commissioner an appeal was preferred before the Appellate Tribunal only by M/s Victory Service Station. The Appellate Tribunal observed that partnership firm was a distinct personality from the partners constituting the firm. Because one of the firms was constituted by the father and son and another was having one more partner viz. Mr. Surinder Pal Singh, the two were distinct from each other. The Regional Provident Fund Commissioner did not record a finding that Mr. Surinder Pal Singh, was having only a negligible share or was a partner for namesake only. M/s Victory Service Station was an establishment which was established in the year 1957 whereas M/s Kapoor Service Station was established in 1968. Both the firms had separate dealership agreement in petroleum goods with M/s Hindustan Petroleum. Since two service stations were situated at two different places, it was not feasible that worker of one service station may run the other service station. The statement of manager Mr. Bhudani was recorded in 1998 in respect of transfer of employees while clubbing was sought to be done from 1989. The statement of Mr. Bhudani was in the nature of complaint, it was doubtful if it was in the hand writing of Mr. Bhudani because writing of the contents and the signature was different. He, therefore, concluded that because of presence of Mr. S.P.Singh as a partner in the appellant firm i.e. M/s Victory Service Station, the appellant firm cannot be clubbed with M/s Kapoor Service Station because that would cause much injury to the interest of Mr. S.P.Singh.

(3.) In the writ petition, the petitioner has challenged the order of the Tribunal on the ground that the service stations were common establishment having common partners dealing in petroleum goods under M/s Hindustan Petroleum. There was transferability of employees as per the information given by the manager of the establishment itself. The Appellate Tribunal went wholly wrong by observing that since the two service station were located at some distance so, the employees at one station cannot run to the other station. The Appellate Tribunal also ignored the fact that the M/s Kapoor Service Station had not preferred any appeal against the order and it was arrayed as respondent No. 2 in the appeal. No notice was issued to M/s Kapoor Service Station by the Tribunal and the version of the M/s Kapoor Service Station therefore, could not come on record. The Tribunal ignored the fact that there were large number of employees at M/s Kapoor Service Station and there was a communication on record from the M/s Kapoor Service Station that its employees strength by itself was over 20. The names of the three tanker drivers and helpers were not borne in the employees' register of M/s Kapoor Service Station thus, the total strength of the employees would have been much more than 20 of M/s Kapoor Service Station itself. By setting aside the order of the Regional Provident Fund Commissioner at the behest of M/s Victory Service Station, M/s Kapoor Service Station has also been kept free from the application of EPF and Miscellaneous Provision Act.