S.J.MUKHOPADHAYA, J. - (1.) BOTH the appeals having been preferred by common appellant and as arises out of proceedings under the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (Act 1952 for short), they were heard together and are being disposed of by this common judgment. By judgment dated 31st July, 2000 in CWJC No. 3358/92 (R), learned single Judge affirmed the order dated 20th July, 1992 passed by the Regional Provident Fund Commissioner, Jamshedpur, held that the establishment of petitioner - appellant is not entitled to get exemption under Section 16(1)(d) of the Act, 1952 and the appellant cannot exonerate himself from the liability under the Act, 1952. This decision is under challenge in LPA No. 352/ 2000. By another order dated 7th June, 2001 passed in CWJC No. 549/98 (R), another single Judge refused to entertain the writ petition against the penal order dated 17th November, 1997 passed under Section 14 -B of the Act. 1952, there being alternative remedy of statutory appeal. This order of the learned single Judge dated 7th June, 2001 is challenged in LPA No. 382 2001 on the ground that no appellate tribunal is functioning in the State of Jharkhand.
(2.) TO appreciate the dispute one is to notice the relevant facts as placed by the parties. The case of appellant, M/s. P.K. Press Metal (P) Ltd., inter alia, is that M/s. Friends Press Metal (P) Ltd., a Company registered under Companies Act, 1956 had set up an Industrial Unit in Jamshedpur which was financed by Bihar State Financial Corporation (BSFC for short) and the State Bank of India (Bank of short). The plant, equipment, Building and a portion of the land was mortgaged with the BSFC and some portion of the land was mortgaged with the Bank. Though the Company, M/s. Friends Press Metal (P) Ltd. had employed certain persons and started production but the factory had to be closed and the Company abandoned the factory in and around in the year 1987. The BSFC, thereafter, took action under Section 29 of the State Finance Corporation Act, 1951 (SKCs Act, 1951 for short) and took over possession of the entire unit. Subsequently, BSFC came out with an advertisement as per Section 29 of the SFCs Act for sale of mortgaged assets of M/s. Friends Press Metals (P) Ltd. The appellant being the highest bidder, purchased the assets, land, building, machines of M/s. Friends Press Metals (P) Ltd. which were handed over to the appellant in 1989. Further case of appellant is that the Company, M/s. Friends Press Metals (P) Ltd. i.e. the original promoter and the appellant -company M/s. P.K. Press Metal (P) Ltd. are two separate companies having different entities. The shareholders and Directors of the two companies are different and one company had nothing to do with the other. The appellant -Company had no dealing with the Company, M/s. Friends Press Metals (P) Ltd. and the transfer/sale made by the BSFC is only of the mortgaged assets in exercise of the Statutory power under Section 29 of the SFCs Act, 1951 which was a coercive step against M/s. Friends Press Metals (P) Ltd. The transfer/sale so made did not affect the status, constitution, composition or continuance of the Company, M/s. Friends Press Metals (P) Ltd. which continued to be a company incorporated and registered under the provisions of the Indian Companies Act. It was also pleaded that the BSFC only handed over the properties of the original promoter i.e. M/s. Friends Press Metals (P) Ltd. to the auction purchaser i.e. the appellant. The properties came in the hands of a new company with altogether a new management. The appellant renovated the plant and machinery. In this manner, a new establishment came into existence which started production in the year, 1990. Section 29 of the SFCs Act, 1951 though permits sale of the mortgaged assets from the original promoter to the auction purchaser, neither the employees of erstwhile employer (original promoter) are transferred to the auction purchaser, nor the liabilities of the erstwhile employer transferred to the auction purchaser. It appears that notices under Section 7 -A of the Act, 1952 were issued by the Respondents vide No. JSR/7 -A Cell/2899/300 to 305 dated 26.4.1991 to the appellant for determination of dues, if any. In pursuance of the said notice, the appellant took plea that it is a new company. New establishment established in the year 1989 -90 which started production from 23rd March, 1990. It claimed benefit of infancy period of three years under Section 16(1)(d) of the Act, 1952. The Regional Provident Fund Commissioner, Jamshedpur held that the old establishment of M/s. Friends Press Metals (P) Ltd. never became dead but due to dispute amongst the Directors of the previous company and due to financial problem, the management failed to run the establishment resulting in stoppage of production. The management left the establishment without final settlement of provident fund of workers and without payment of bonus, compensation as per ID Act, 1947 and the new management merely taken up the management of said establishment on its purchase. The prayer was rejected by the Regional Provident Fund Commissioner, Jamshedpur vide impugned order dated 20th July, 1992, as affirmed by the learned single Judge in CWJC No. 3358/92 (R). The proceeding under Section 7 -A of the Act, 1952 for assessment of dues for the period from April, 1993 to August, 1995 was continued wherein final order was passed on 20th February, 1996. On assessment, the Regional Provident Fund Commissioner held/ inter alia, that the appellants establishment was liable to pay assessed amount of Rs. 10.31.231/ - only within 15 days under BR/2899 allotted to erstwhile M/s. Friends Press Metals (P) Ltd. The appellant challenged it by filing a writ petition CWJC No. 1025/96 (R). The said case was disposed of on 26.3.1996 allowing the appellant to file an application under Section 7 -B of the Act, 1952 for review of the said order. Subsequently, a proceeding under Section 14 -B of the Act, 1952 started for the period from April, 1993 to May, 1996 after notice to the appellant. By impugned order dated 17th November, 1997, the Regional Provident Fund Commissioner, Jamshedpur assessed a sum of Rs. 7,86,264/ - (Seven lakhs eighty six thousand two hundred sixty four only) payable by the establishment towards the damages. This penal order was challenged in CWJC No. 549/98 (R) wherein the learned single Judge vide order dated 7.6.2001 allowed the appellant to move in appeal before the Tribunal, constituted for the purpose. According to counsel for the appellant, its establishment is new one distinct from the earlier establishment of M/s. Friends Press Metals (P) Ltd. Counsel for the appellant also opposed the order of damage passed under Section 14 -B of the Act, 1952 on the ground of violation of Rules of natural justice. It was submitted that before passing such penal order, a date of hearing should have been fixed and on hearing the appellant, appropriate order should have been passed.
(3.) THE case of the respondents before the RPF Commissioner, Jamshedpur was that the establishment in question is same which could not function for certain period because of dispute between the Directors, who abandoned the establishment. The new management merely revived the same establishment by re - production. There was no change in employees, nor the equipment/machinery of the establishment were Replaced in its totality. Before this Court, counsel for the respondents placed reliance on facts as mentioned in the impugned order dated 20th July, 1992 passed by RPF Commissioner, Jamshedpur in support of aforesaid submission. So far as damage is concerned, counsel for the respondents submitted that a show cause notice was given to appellant in pursuance of which a show cause reply was filed by the appellant, it amounts to compliance of the principle of rules of natural justice.;