RUBKA FRUIT PRODUCTS PVT LTD Vs. REGIONAL COMMISSIONER EMPLOYEES PROVIDENT FUNDS AND FAMILY PENSION FUND

JUDGEMENT

(1.) THE facts in this case do not admit of any controversy. Certain machineries were hypothecated to the State Bank of India by one Delican (Private), Ltd. The said delican (Private), Ltd. , went into liquidation. Those machineries were purchased by the petitioner from The mortgagee (the State bank of India ). There was a closure of the establishment originally run by Delican (Private), Ltd. , and after; the liquidation proceedings and the purchases of the machineries which covered a period of six months and more, the petitioner with the help of the machineries and in the same premises as the business was conducted by Delican (Private), ltd. , started afresh the business of manufacture of fruit and fruit products under the name and style of Rubka Fruit Products (Private), Ltd. The petitioner claimed infancy production under S 16 (1) (b) of the Employees' Provident Funds and Family Pension fund Act, 1952, By the impugned order, dated 14 September 1975, it was held that such a protection would not be available to the petitioner. The reason, according to the regional Commissioner, Employees' Provident funds is this:

(2.) IN attacking this order, Sri S. W. Kanakaraj, learned counsel for the petitioner, urges that this line of reasoning has been held to be wrong in several decisions including that of the Supreme Court It cannot be said that merely because the petitioner had purchased old machinery or was using the same premises, it is not a new establishment The test to be applied is whether with a view to evade its liability under the Act, the claim for infancy protection is made. In support of this submission the learned counsel for the petitioner, relies on the decision in Provident fund Inspector, Trivandrum v. N. S. S. Co-operative Society [ (1971) 40 F. J. R. 310], in which the decision of this Court in Vittaldas jagannathadas v. Regional Provident Fund commissioner [a. I. R. 1965 Mad. 508], found approval. Again, the learned counsel for the petitioner presses into service the decision in devi Press v Regional Provident Fund Commissioner [a. I R. 1965 Mad. 462], and contends that the facts are more or less identical. Therefore, according to him, the impugned order must be quashed,

(3.) MISS Radha Srinivasan, learned counsel appearing for the department, would, however, contend that, having regard to the fact that the same machineries were purchased and the same premises is used and there had not been long interval between the cessation of the old business and the commencement of the new business of the petitioner, it must be presumed that it is not a new establishment entitled to the infancy protection.