IMPORTANT POINT
New establishment from same premises with identical activities immediately after predecessor's cessation is continuation; tribunal cannot condone appeal delay beyond 120 days or issue non-reasoned orders misreading evidence.

JUDGMENT :

1. The petitioner has filed the instant application for the following relief(s):

“For quashing the order dated-10.1.08 passed in ATA Nos- 507(3)/2006 by The Employees' Provident Fund Appellate Tribunal, New Delhi as contained in Annexure-4 whereby and whereunder the respondent no-1 has set aside the order dated-28.7.06 (Annexure-3) passed by the A.P.F.C, Patna under section 7A of the Act.

II. Any other writ/writs, direction/ directions, order/orders, in respect of any other relief or reliefs to which the petitioner may be deemed entitled, may also be issued.”

2. The case of the petitioner as culled out from Writ petition is that M/s Impex Kompt Soft (India) Pvt. Ltd. was an establishment covered under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the “Act, 1952”) with effect from 01.04.1997. The said establishment discontinued payment of statutory dues and submission of statutory returns from April 2001 on the plea that it had ceased its activities with effect from 31.03.2001.

3. It is the case of the petitioner that immediately thereafter, another establishment, namely M/s Electronic Net, commenced business from 01.04.2001 from the same premises and was carrying on identical activities which were earlier undertaken by M/s Impex Kompt Soft (India) Pvt. Ltd. M/s Electronic Net, however, claimed that it was an entirely separate legal entity and, therefore, the provisions of the Act, 1952 were not applicable to it. Thereafter, an inquiry was conducted by the Enforcement Officer, who submitted his report dated 07.03.2002 stating inter alia that upon cessation of the earlier establishment, M/s Electronic Net started functioning from 01.04.2001 and the Attendance Registers for April, May and June 2001 reflected employment strength of 19, 19 and 20 employees respectively. The records bear the signature of the Director, Mr. Sanjeev Kumar. On the basis of the inquiry and materials on record, proceedings under Section 7A of the Act culminated in an order dated 30.07.2004 determining statutory dues amounting to Rs. 2,08,875/- for the period June 2001 to June 2003 against M/s Electronic Net.

4. An application under under Section 7B Sub Section (1) of the Act was filed by respondent no.2 for a review of the order passed under Section 7A(1) which was disposed of on 28.07.2006 without disturbing the order dated 30.07.2004. Aggrieved by it, respondent no.2 preferred an appeal bearing ATA No. 507(3)/2006 before the Employees’ Provident Fund Appellate Tribunal, New Delhi. The Tribunal,vide ex parte order dated 10.01.2008, allowed the appeal and set aside the order passed by the authority dated 28.07.2006. The petitioner challenged the said order primarily on the grounds that the Tribunal acted beyond jurisdiction, failed to consider material evidence, passed a cryptic and non- reasoned order, and misread the attendance register.

5. The Learned counsel for the petitioner submits that the materials on record clearly demonstrate that M/s Electronic Net was merely a continuation of M/s Impex Kompt Soft (India) Pvt. Ltd., functioning from the same premises and engaged in identical business activities. A mere change in nomenclature cannot defeat statutory liability.

6. It is further submitted that the attendance register for June 2001 shows 20 employees. The Tribunal erred in accepting the plea that one employee remained absent throughout the month. A bare perusal of the at