RAFIQ, J. - (1.) THESE three appeals are directed against the common judgment dated 20. 11. 2006 passed by the learned Single Judge whereby and whereunder three writ petitions preferred by the appellants herein have been dismissed together.
(2.) THE appellants had in the writ petition questioned the validity of the order dated 4. 10. 1990 passed by the Regional Provident Fund Commissioner holding them not entitled to infancy period and the order dated 10. 10. 1997 passed by the Employees Provident Fund Appellate Tribunal, New Delhi dismissing their appeals thereagainst. Factual matrix of the case giving rise to these appeals is that M/s. Bennett, Coleman & Company Ltd. , Jaipur i. e. appellant in D. B. Civil Special Appeal (Writ) No. 1227/07 entered into two separate agreements with the other two appellants; namely-Times Publishing House Ltd. , Jaipur in D. B. Civil Special Appeal (Writ) No. 1228/07 and M/s.) Shree Vishal Printers Ltd. , Jaipur in D. B. Civil Special Appeal (Writ) No. 1229/07. M/s. Bennett, Coleman & Company Ltd. is the publisher of daily newspapers "times of India" and "nav Bharat Times" published from different places in the country. An agreement was executed between M/s. Bennett, Coleman & Company Ltd. and M/s. Shree Vishal Printers on 1. 10. 1985 inter alia for the purpose of getting the newspapers i. e. "times of India" and "nav Bharat Times" printed on contract basis. It was agreed that all the material used for printing shall be to the account of M/s. Shree Vishal Printers who shall employ necessary personnel for photo composing, proof reading, camera work, processing, page make-up, plate making and printing activities for which purpose news items, other materials and advertisements to be printed in various editions shall be provided by M/s. Bennett, Coleman & Company Ltd. In consideration thereof, M/s. Bennett, Coleman & Company Ltd. agreed to pay to M/s. Shree Vishal Printers an amount of Rs. 24,000/- as charges for printing per day. In the second agreement entered into between M/s. Bennett, Coleman & Company Ltd. and Times Publishing House, a company incorporated in New Delhi but also having its office at 8-9, Anupam Chambers, Tonk Road, Jaipur. The agreement stated that M/s. Bennett, Coleman & Company Ltd. which is owner, printer and publisher of english daily "the Times of India" published from Bombay, Delhi, Ahmedabad, Bangalore, Patna and Jaipur and hindi daily "nav Bharat Times" published from Bombay, Delhi, Patna and Jaipur had commenced publication of Jaipur edition of its above referred to daily newspapers w. e. f. 23. 9. 1985. Times Publishing House agreed to provide office space for use and occupation by the staff of M/s. Bennett, Coleman & Company Ltd. , accounting facilities for maintenance of Circulation Accounts, Advertisement Accounts, General Accounts etc. and other facilities like stenography, typing, security, telephone and the like with a view to enabling M/s. Bennett, Coleman & Company Ltd. to efficiently and smoothly conduct its Jaipur operations. Times Publishing House further agreed to render/provide secretarial, administrative, accounting and other clerical and sub-staff facilities. The agreement further provided that the entire infrastructure of Times Publishing House shall be made use of by M/s. Bennett, Coleman & Company Ltd. and in case of working problems, Times Publishing House shall on request of M/s. Bennett, Coleman & Company Ltd. remove the same. Further it was agreed that the staff employed by Times Publishing House shall not be considered as employees of M/s. Bennett, Coleman & Company Ltd. and shall be responsible to the former only. In consideration of this, M/s. Bennett, Coleman & Company Ltd. shall pay an amount calculated at the rate of 5% as commission on net advertisement and circulation revenue. The Regional Provident Fund Commissioner Jaipur by his letter dated 18. 6. 1986 intimated the appellants to comply with the provisions of Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as `the Act' ). He proceeded on the assumption that M/s. Bennett, Coleman & Company Ltd. through its Executive Director Ramesh Chandra as lessee took over a two storied building at 8-9, Anupam Chambers, Tonk Road, Jaipur by lease deed dated 1. 12. 1983. The Regional Provident Fund Commissioner in his order passed on 4. 10. 90 held that the above referred to three establishments are all one. Being aggrieved by that order, the appellants filed representation before Legal Advisor, Government of India, Ministry of Labour, New Delhi claiming benefit of infancy period. While the said representation was pending, the Employees Provident Appellate Tribunal was constituted in the meantime and this representation was therefore transferred to the said Tribunal which was treated as an appeal under Section 19a of the Act. The Appellate Tribunal by its order dated 10. 10. 1997 however dismissed the petition/appeal preferred by the appellants. Thereafter, three writ petitions filed against that order were dismissed by learned Single Judge by the impugned judgment. Hence these appeals. Mr. A. K. Bhandari, learned Senior Advocate appearing for the appellants argued that the appellant M/s. Bennett, Coleman & Company Ltd. had the establishment at Jaipur which started its business in the year 1985. It was an independent unit and was entitled to benefit of infancy period under Section 16 of the Act. It was not under any obligation to deposit the PF contribution for a period of three years from the date of starting business. Its Jaipur establishment was managed independently and was not depended upon the registered office or on any other establishment of the appellants. It maintained separate profit and loss account and employed independent staff especially for Jaipur. Their salary including incidental expenses were paid from the accounts of Jaipur establishment. They were governed by separate sets of rules and regulations. The Provident Fund Commissioner and the Appellate Tribunal without considering all these aspects required them to comply with the provisions of the Act. In the proceedings initiated u/s. 7a of the Act, the Commissioner failed to consider several documents produced by the appellant to show that its Jaipur establishment was an altogether independent office having separate identity. There was no unity of purpose between M/s. Bennett, Coleman & Company Ltd. , and other two companies referred to above, nor was there any unity of ownership or unity of management and control or unity of finance or unity of labour or unity of employment or inter-dependence amongst them. They were separately registered as different companies. The documents evidencing all these facts produced before the Commissioner were illegally ignored. The Tribunal also committed same error by not considering, discussing and deciding all these aspects of the matter. The finding that Promoters, Shareholders and Directors of Times Publishing House and M/s. Shree Vishal Printers are members or the relatives of Promoters and Directors of M/s. Bennett, Coleman & Company Ltd. was absolutely without any basis. The learned Single Judge erred in law in not interfering with such finding by wrongly relying on the ratio of Supreme Court judgment in Sadhana Lodh vs. National Insurance Co. Ltd. (2003) 3 SCC 525 = (2008 (3) RLW 2298 ). A finding of fact which is not supported by any evidence whatsoever would constitute error apparent on the face of record warranting interference by this Court in its jurisdiction under Article 227 of the Constitution of India. The Commissioner and the Appellate Authority erred in law in holding that the agreements executed between M/s. Bennett, Coleman & Company Ltd. , and Times Publishing House and M/s. Shree Vishal Printers, were sham transactions. All the three companies were having their different Board of Directors. The authorities below erred in law in holding that upon piercing the veil, there was found a functional unity amongst the three companies. But it has not been recorded as to how the piercing was done and how the authorities below came to such a conclusion. There was no functional integrity nor was there any functional dependence. All three units were having independent existence and are existing without the other. Mr. A. K. Bhandari, learned counsel for the appellant relied on the judgments of Supreme Court in Management of Pratap Press, New Delhi vs. Secretary, Delhi Press Workers' Union, Delhi- AIR 1960 SC 1213, M/s. Aditya Synthetics Pvt. Ltd. vs. Union of India & Anr.- 1993 (1) RLR 603 = (1993 (2) RLW 193), Isha Steel Treatment, Bombay vs. Association of Engineering Workers, Bombay & Anr.- (1987) 2 SCC 203, District Transport Manager (Admn.), OSRTC, Orissa vs. Dilip Kumar Nayak & Anr.- (1997) 9 SCC 296, Shail (Smt.) vs. Manoj Kumar & Ors. , (2004) 4 SCC 785 and M/s. Sriram Industrial Enterprises Ltd. vs. Mahak Singh & Ors.- AIR 2007 SC 1370.
(3.) ON the other hand, Mr. R. B. Mathur, learned counsel for the respondents opposed the appeals and argued that the Regional Provident Fund Commissioner had rightly held that the Jaipur establishment of the appellant M/s. Bennett, Coleman & Company Ltd. is part and parcel of its establishment which was owner, printer and publisher of "times of India" published from Mumbai, Delhi, Ahmedabad, Bangalore, Patna. The Commissioner, Regional Provident Fund and the Appellate Authority have recorded ample reasons for their satisfaction that there was functional integrity and unity of purpose among the three different companies. It was argued that M/s. Bennett, Coleman & Company Ltd. in its agreement dated 1. 10. 1985 has clearly admitted that Jaipur establishment is its own branch. The Commissioner therefore rightly recorded the finding of fact that Jaipur establishment is no more than a branch of another establishment which is already covered under the provisions of the Act. The agreement entered into between M/s. Bennett, Coleman & Company Ltd. with the other two companies clearly prove their functional dependency on one another and also functional integrity and unity of purpose. It was argued that the very fact that entire news items, other printing material and advertisements were supplied to M/s. Shree Vishal Printers for printing and that it was working only for M/s, Bennett, Coleman & Company Ltd. and not for any other concern and further that the entire staff said to have been provided to M/s. Bennett, Coleman & Company Ltd. by Times Publishing House, was under effective control and supervision of M/s. Bennett, Coleman & Company Ltd. and entire establishment expenses were borne by it, clearly prove the functional integrity and unity of purpose among three companies. Mr. R. B. Mathur, learned counsel for the respondents relied on the judgments of the Supreme Court in Regional Provident Fund Commissioner, Jaipur vs. Naraini Udyog & Ors.- (1996) 5 SCC 522, M/s. Rajasthan Prem Krishan Goods Transport Co. vs. Regional Provident Fund Commissioner, New Delhi & Ors.- AIR 1997 SC 58. We have given our thoughtful consideration to the arguments advanced by learned counsel for the parties and perused the material on record. The order of the Regional Provident Fund Commissioner passed under Section 7a of the Act clearly show that agreement executed between M/s. Bennett, Coleman & Company Ltd. and Times Publishing House and M/s. Shree Vishal Printers contains admission of M/s. Bennett, Coleman & Company Ltd. that it is the owner, printer and publisher of english daily "times of India" and hindi daily "nav Bharat Times" published from Mumbai, Delhi, Ahmedabad, Bangalore and Jaipur. Agreement that was entered by M/s. Bennett, Coleman & Company Ltd. with M/s. Shree Vishal Printers also contained the admission made by M/s. Bennett, Coleman & Company Ltd. that it has commenced publication of the Jaipur edition of Times of India and Nav Bharat Times w. e. f. 23. 9. 1985. Record also shows that M/s. Bennett, Coleman & Company Ltd. through its Executive Director Ramesh Chandra took over a two storied building at 8-9, Anupam Chambers, Tonk Road, Jaipur as lessee as per the lease deed dated 1. 12. 1984. Times Publishing House in the agreement entered into with M/s. Bennett, Coleman & Company Ltd. agreed to provide this very premises for use by M/s. Bennett, Coleman & Company Ltd. In the agreement, Times Publishing House admitted having trained and experienced staff and all infrastructural facilities which it offered to provide to M/s. Bennett, Coleman & Company Ltd. The Commissioner in his order noted all such features of the two agreements. He also noted that Shri Sunil Gupta, who is Manager of M/s. Bennett, Coleman & Company Ltd. has signed all the papers relating to not only M/s. Bennett, Coleman & Company Ltd. but also of two other establishments, namely Times Publishing House and M/s. Shree Vishal Printers. He signed on the notice dated 15. 2. 1988 and 20. 2. 1988 regarding closer of the office of Times of India and Nav Bharat Times on 16. 2. 1988 due to Mahashivratri and on 3rd and 4th March, 1988 due to holi and endorsed copies thereof to Production Executive and Teleprinter Room of M/s. Shree Vishal Printers. He also issued order on 21. 6. 1986 to the Establishment Executive of Times Publishing House. Shri Sunil Chhabra, who is Establishment Executive of M/s. Times Publishing House Ltd. used to write his letters on the letter pad of M/s. Times of India as indicated from the letter dated 27. 2. 1988 where he issued directions to the security persons who are working with M/s. Shree Vishal Printers as well as Times Publishing House. Shri Sunil Gupta also issued directions to Shri R. L. Bhatnagar of M/s. Shree Vishal Printers Ltd. on 9. 2. 1987 asking him to report at 11. 30 AM on next Monday. He also singed a requisition of M/s. Shree Vishal Printers Ltd. dated 7. 6. 86 and other indents dated 11. 5. 87 and 13. 5. 87. Shri Ashok Kumar Dutta, the then General Manager issued direction dated 2. 6. 88 to Jaipur branch on recruitment policy. Shri Sunil Gupta sought permission from General Manager of M/s. Times of India, New Delhi on the request of employees of M/s. Shree Vishal Printers to purchase motorbikes. Shri S. K. Tripathi, Establishment Executive of M/s. Bennett, Coleman & Company Ltd. issued an order on the letter pad of M/s. Shree Vishal Printers on 9. 10. 1986 to confirm Shri J. P. Pareek, P. T. S. Operator (Hindi ). The Commissioner also noted that Times of India, Bombay is already a covered unit in the State of Maharashtra and on that basis concluded that Jaipur Branch was its part and parcel. In fact, Times of India, Bombay in its newspaper clearly advertised that it has started publication of Nav Bharat Times and Times of India from Jaipur w. e. f. 23. 9. 1985 and had showed the same as its branch in the declaration of ownership published in its newspaper. As per the letters of Times of India, New Delhi dated 2. 6. 1988 and 7. 6. 1988, the managerial control of Jaipur edition vests with the Delhi Office of Times of India. The balance sheet of the Jaipur Office dated 31. 7. 1986 indicated Rs. 24,00,394. 91 against liabilities under the head `source of Funds' account of branch which may be debited to the books of Jaipur Branch on advice of the Delhi Office. On page 145 of the balance sheet of 31. 7. 1986, a receipt of branch audit to the statutory auditors of the company says that the provident fund benefits to the employees stated to have been given and maintained at Head Office. The Commissioner also analyzed the documents filed by the parties and found that M/s. Bennett, Coleman & Company Ltd. has admitted having control of the Head Office over the Jaipur Office in regard to transfer and recruitment etc. The lease deed, balance sheet of the company and other records also proved that Jaipur branch of all the three companies referred to above have common premises, common security, common gate, common support, all of which proved functional integrity and supervision and control. With all these evidences on record showing functional integrity and unity of purpose, the mere fact that the Tribunal in its order made any additional observations about some of the share holders and Directors of the company being common would not dilute the fact that the two agreements referred to above were nothing but sham transactions to avoid the statutory obligation flowing from the Act. The argument that the documents produced by the office bearers of the Union should not have been considered also does not merit acceptance because if the genuineness of the documents as such is otherwise not in doubt, they cannot be ignored just because their source of origin is the union of employees of the establishment and not the establishment itself. The object of the Commissioner and for that matter, of the Appellate Tribunal was to arrive at the truth and if in the process of doing so, the documents which are filed even at the instance of Union of are found to be relevant, their consideration cannot be said to vitiate the order passed by them. ;