J.K. Biswas, J. - (1.) The petitioner in this writ petition dated January 18, 2008 is questioning the order pf the Assistant Provident Fund Commissioner, Regional Office, Kolkata dated December 14, 2007, Annexure 12 at p.61. The order was made in the proceedings initiated under Sec. 7 -A the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.
(2.) The authority under the Act called upon the petitioner to comply with the provisions of the Act and the Schemes framed thereunder with effect from April, 1999. The direction was given after a team of enforcement officers visited the establishment, made necessary investigation and submitted report with all supporting documents. The petitioner disputed the question of applicability of the Act to its establishment Accordingly the authority initiated the proceedings, gave the petitioner opportunity of presenting its case and also of hearing, and then came to the conclusion that the Act would be applicable to the establishment.
(3.) In the impugned order the authority has recorded as follows: "AND WHEREAS, on 10.12.2007 Sri Sandipan Mitra, Advocate appeared on behalf of the establishment with Vokalatnama. He filed a letter dated 10.12.2007 by Sri Subrata Das, Advocate enclosing the copy of order passed by Hon'ble Justice Soumitra Paul wherein it was directed to respondent to pass order within a period of 4 (four) weeks on the date of communication of the order. However, in the instant matter, Sri Sandipan Mitra, Advocate submitted that he had nothing to comment on the ongoing 7 -A enquiry regarding applicability dispute. His attention was drawn towards the fact that the report of squad of officers was handed over to establishment's representative to put forth their counter arguments, if any but Mr. Mitra again submitted that he had nothing to say about the applicability dispute under Sec. 7A of the Act However, vide above letter dated 10.12.2007, Sri Subrata Das, Advocate drawn the attention of the authority on the following - - (1) That it is stated that the establishment is recognized and assessed by the Government Departments and/or Statutory Authorities viz., by the Directorate of Commercial Taxes, Ministry of Commerce (I.E.) and also for Income Tax etc. Furthermore, the establishment has also complete, separate sets of employees, different and separate machineries as well as separate supply of electricity with separate consumer and meter number and in all other respect those establishments were complete and separate in themselves for all material purposes. (2) That it was again stated that the establishment was visited by the department/authorities and numerous documents and registers were seized wherefrom it is evident that those documents were of two different establishments and none of the above establishments could be said to employ the requisite numbers of employees to come under the purview of Employees' Provident Funds and Miscellaneous Provisions Act, 1952. Sri D. Sen, Assistant Accounts Officer and Departmental Representative stated that the squad in its report dated 27.3.2007 observed the following commonness with regard to its functioning, control, personnel and management with that or another establishment under the name and style of M/s. Wu. Leathers as functioning at its officially projected address of 113 -D, Matheswartala Road, Kolkata -700 046 and as such, the squad recommended that both the establishments can be clubbed together and brought under the fold of Employees' Provident Funds and Miscellaneous Provisions Act, 1952 w.e.f. 4/99 - (1) THAT as regards Unity of Management between the two establishments, the squad has observed that both the establishments are partnership concerns and such partners belong to the same family viz. the partnership amongst the husband, his wife and their son. (2) THAT as regards Geographical Proximity between the two establishments the squad observed that the respective office and works of both of the establishments are actually housed at the same premises at 113 -D, Matheswartala Road, Kolkata -46 where the relevant documents of both of the establishments were found physically available and therefore seized. Both the establishments were using the identical telephone number, i.e., 247 -5901 (as recorded during that period). The squad has also noted that as per the Partnership Deed, Cash Book, Balance Sheet Ledgers, Salary Register etc. although the address of M/s. Wu Leathers it was 113 -D, Matheswartala Road, Kolkata -46, but as per the seized vouchers of both of the establishments it was noted that the addresses of those establishments were just the reverse. (3) THAT the aspect of common employees of the two establishments has been clarified by the squad by citing the example of Sri Swapan Kr. Khamaru, who was working as an Accountant for both the establishments and was drawing salary from both the establishments. (4) THAT besides the above, the products and line of business are common between the two establishments." After hearing the advocate for the petitioner and the departmental representative the authority held as follows: "I have gone through the case file, documents filed and arguments advanced by the parties to the dispute and I am of the opinion that - - (1) Two units even if have different addresses whether located at one place or other, are a single establishment if there is financial, managerial and functional integrity between them and as such different registrations under Directorate of Commercial Taxes becomes irrelevant. Further, it is noticed vide Enforcement Officer's report though two different addresses have been projected but on vouchers exactly reverse addresses have been mentioned. (2) Real management and control in this case belongs to same owners and as such due to common supervision and control over the units, clubbing is right approach to extend the benefits of Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and Schemes framed thereunder. (3) When same infrastructure is being used, the integrality is further approved, and as such unity of ownership, management, supervisory control, infrastructure, employability and same nature of production in the both units is proved conclusively and hence the two establishments are rightly covered by the department by clubbing their entity on the above reasons as detected by the squad of officers in their reports dated 26.9.2001, 28.9.2001 and 27.3.2007.";