DHORAJI ENGG WORKS RAJKOT Vs. REGIONAL PROVIDENT FUND COMMISSIONER AHMEDABAD

JUDGEMENT

(1.) ?This petition has been filed by two partnership firms. Dhoraji Engineering Works is petitioner No. 1. Dhoraji Mechanical Works is petitioner No. 2. Both are carrying on their manufacturing business at Rajkot. Petitioner No. 1 firm was constituted in 1965. It has been manufacturing diesel oil engines and their spare parts. The petitioners allege that petitioner No. 1 has been employing less than 19 workers. However with effect from 1st March 1975 petitioner No. 1 was voluntarily adopted the Provindent Fund Scheme. Petitioner No. 2 another partnership firm was constituted in 1968. It is also engaged in manufacturing diesel oil engines. In addition it is trading in diesel oil engines and its parts. The diesel oil engines and its parts in which petitioner No. 2 has been trading are purchased by it from petitioner No. 1 firm. Both the firms have been separately registered under the Partnership Act are separately assessed for the purpose of income tax and sales tax and hold separate licences under the Factories Act. The Provident Fund Commissioner issued on 20th November 1974 a notice to show cause why the provisions of the Employees Provident Funds and Family Pension Fund Act, 1952 (hereinafter referred to as the Provident Fund Act for the sake of brevity) should not be applied to them with effect from 1st October 1971. In pursuance of the notice which he issued he held an enquiry and on 11 February 1977 he made the impugned order. By the impugned order he declared that both the firms constitute one establishment and that the workmen employed by both the firms exceeded 20. He therefore ordered that the provisions of the Provident Fund Act were applicable to both these firms as if they were one establishment. It is that order which is challenged by the petitioners in this petition.

(2.) Mr. Nanavaty who appears on behalf of the petitioners has contended that the Provident Fund Commissioner has applied the wrong test while holding that both the firms constitute one establishment. In order to appreciate the contention which Mr. Nanavaty has raised it is necessary to turn to sec. 1 (3)(a) which reads as follows:-

(3.) Before we proceed to examine the impugned order it is necessary to refer to a few decisions to which our attention has been invited.