High Court Of Delhi
Dr. Mukundakam Sharma & Sanjiv Khanna
HOTEL KANISHKA - Appellant
Versus
UNION OF INDIA - Respondents
LPA 2127 Of 2006
Decided On : 05/25/2007
MUKUNDAKAM SHARMA, C. J.
( 1 ) ALL these appeals were argued before us by the counsel appearing for the parties. During the course of hearing it appeared to us and agreed to by the counsel appearing for the parties that the issues and the facts involved in these appeals are similar. That being so, we propose to dispose of all these appeals by this common judgment and order.
( 2 ) HOTEL Jaipur Ashok, Ashok Airport Restaurants, Hotel Samrat and hotel Kanishka are India Tourism Development Corporation's Hotels. In view of disinvestment policy of the Government of India, all these hotels were dis-invested and private parties have taken over the management and control of the said hotels.
( 3 ) THE issue that arises for consideration is regarding realisation of the dues relating to the provident fund, which is sought to be recovered by the regional Provident Fund Commissioner, New Delhi from the appellants herein. It was sought to be submitted before us that the aforesaid appellants are not branches and units of India Tourism Development Corporation limited and in fact they are independent establishments and, therefore, none of the provisions of the Employees' Provident Funds and Miscellaneous provisions Act, 1952 (hereinafter referred to as the said Act) are applicable nor any notice could be issued by the Regional Provident Fund commissioner under the provisions of Section 7a of the said Act for determination of the dues in respect of the hotels inasmuch as the appellants enjoy protection as provided under the provisions of Section 16 of the said act. By filing the appeals, the appellants have challenged the legality of the impugned judgment and orders passed by the learned Single Judge holding that the order passed by the Regional Provident Fund Commissioner under section 7a of the said Act is legal and valid and that the said order does not call for any interference. Similar findings and conclusions were recorded in respect of Hotel Jaipur Ashok, Ashok Yatri Niwas (presently Indraprastha hotels), Ashok Airport Restaurants, Hotel Samrat and Hotel Kanishka.
( 4 ) COUNSEL appearing for the appellants submitted before us that the aforesaid hotels are neither branches nor units of India Tourism development Corporation Limited and that the said hotels are independent establishments and, therefore, the Regional Provident Fund Commissioner could not have issued a notice under Section 7a of the said Act and also decide and determine the dues payable by the appellants. It was also submitted that the aforesaid hotels being independent establishments, the central Government is the appropriate Government in terms of the provisions of Section 2 (a) of the said Act and there being no reference of the central Government in this matter, the determination of the dues under section 7a is without jurisdiction. The other submission which was made before us was that the India tourism Development Corporation Limited has number of hotels all over the country and, therefore, the Regional Provident Fund Commissioners would be different and separate and, therefore, also the determination by the Regional Provident Fund Commissioner at Delhi is without jurisdiction. The next submission that was made was regarding the functional integrality of the appellants. It was submitted that there was neither any functional integrality, financial control and operational activities between the India tourism Development Corporation Limited and the various hotels, who are appellants herein. In order to support the said contention, counsel appearing for the appellant in the appeal filed in respect of Hotel Samrat drew our attention to paragraph M of the grounds, relying on which it was submitted before us that India Tourism Development Corporation Limited had neither any unity of ownership, functional integrality or any managerial control or any other control over the hotels in question, who are appellants herein. It was submitted that each of the hotels has a separate
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