ELEGANT GARMENTS Vs. REGIONAL PROVIDENT FUND COMMISSIONER

JUDGEMENT

(1.) W. M. P. No. 2760 of 1991 was filed by the petitioner in W. P. No. 2428 of 1986 pending before this Court for an order of interim injunction restraining the first respondent or his agents from demanding the Provident Fund accumulations due from the petitioners, pending disposal of the writ petition. When the same came up for orders, by consent of parties, the main writ petition itself was taken up for hearing.

(2.) W. P. No. 2428 of 1986 was filed for a writ of mandamus directing the mandamus directing the first respondent to pass necessary orders stating that the petitioners will come under the Employees Provident Fund Act on the basis of S. 16 (1) (b) of the Act only from November 2, 1984 and allot a code number to the petitioner's firm. In the affidavit filed in support of the writ petition, the petitioners have contended that the writ petitioner is a partnership firm, that on October 3, 1981 they entered into an agreement with the 4th respondent, a Government of India Undertaking as evidenced by a written agreement, that the petitioners fabricate and supply garments which the fourth respondent exports outside with some of the inputs supplied by the fourth respondent, that in terms of the agreement between the petitioners and the fourth respondent, the petitioners set up a new establishment consisting of 121 employees in November, 1981 for making garments, that all the employees were freshly recruited and the petitioners established and commenced the establishment only in July, 1981, that in view of S. 16 (1) (b), the provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 hereinafter referred to as the "act", the same is entitled to infancy protection, that it is completely a new establishment with no one who was earlier working or earlier a member contributory to the scheme, that on October 29, 1984 the petitioners informed the first respondent about the same and requested him to allot them a Provident Fund Code number to enable them to deduct the Provident Fund contributions in terms of the scheme, that even earlier, the necessary proforma as to the commencement of the Establishment with effect from November 2, 1981 was filed, that the Enforcement Officer of the first respondent visited and inspected all the documents and records available which indisputably showed that the Establishment as established in 1981 was a new one and that in spite of all these materials owing to certain wrong understanding of the relevant provisions of law as well as misconception and misconstruction of the vital and relevant facts the first respondent failed to give a separate code number inspite of the request from the 4th respondent too, the petitioners were obliged to file the writ petition. By way of abundant caution, the petitioners have been deducting the subscriptions of the employees and with their own contributions have been remitting them in a Savings Bank Account from November 1984 onwards.

(3.) THE petitioners further contended that as per the terms and conditions of the agreement between them and conditions of the agreement between them and the fourth respondent, they are the employer in respect of these employees and found working in their Establishment and that the fourth respondent has nothing to do with them and does not have anything to do with those employees of theirs in any manner whatsoever and that the first respondent was ill advised to treat them as having any link or connection with the fourth respondent directly or indirectly.