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2001 Supreme(Guj) 843
Gujarat High Court
Judgename :D.M.Dharmadhikari, K.A.Puj
ISHWARBHAI GOKULBHAI SURTI - Appellant
Versus
K.M.BHATT - Respondent
S.C.A. 6374 of 1983
Decided On : 12/28/2001
Headnote:(a) Employees Provident Fund and Miscellaneous Provisions Act, 1952 (Central Act 19 of 1952) -Secs. 7-A & 19-A -Applicability of Act - Jurisdiction to decide applicability -Respondent found petitioner concern to be an establishment -Held, respondent has jurisdiction under Sec. 7-A to decide applicability of Act -Unity of ownership, functional integrality, general unity of purchase and geographical proximity existed -No infirmity in order of respondent -Hence, no relief can be granted to petitioner.
(b) Constitution of India, 1950 -Arts. 19(1)(g), (f) & 226 -Validity of Secs. 7-A & 19-A of Employees Provident Fund and Miscellaneous Provisions Act, 1952 -Exclusion of judicial review of order passed under Sec. 7-A, unreasonable -Held, in view of the binding decision of the Court, provisions of Sec. 7-A & 19-A cannot be said to be ultra vires of constitution -Hence, finding of respondent cannot be rejected -Petitioners not entitled to any relief in the facts & circumstances.
(c) Employees Provident Fund and Miscellaneous Provisions Act, 1952 (Central Act 19 of 1952) -Sec. 3(1)(b) -Applicability thereof - Establishment -Petitioners & two other concerns engaged in trading & commercial activities -Held, activities of petitioner & two concerns covered under Sch. 1 of the Act -Sec. 3(1)(b) applicable.
( 1 ) THE petitioner, in this petition under Article 226 of the Constitution of India, has challenged the constitutional validity of Section 7-A and 19a of The Employees Provident Fund and Miscellaneous Provisions Act, 1952 [hereinafter referred to as "the Act"] as offending Articles 14, 19 (1) (f) and 19 (1) (g) of the Constitution of India. The petitioner has further challenged the order dated 21. 7. 1983 passed by the Regional Provident Fund Commissioner, Gujarat State, Ahmedabad, respondent No. 1 in the matter of enquiry under Section 7a of the Act confirming his earlier order dated 15. 9. 1982 passed under Section 7a of the Act. The petitioner has further challenged the order dated 23. 9. 1983 passed by the Legal Adviser, Ministry of Labour and Rehabilitation, Department of Labour, Government of India, New Delhi, respondent No. 2 herein under Section 19a of the Act dismissing the revision made by the petitioner challenging the orders dated 15. 9. 1982 and 21. 7. 1983 passed by the 1st respondent.
( 2 ) BEFORE we deal with the aforesaid challenges made by the petitioner in this petition, it is necessary to set out relevant facts leading to the controversies arose between the parties. One Mr. Ishwarlal Gokulbhai Surti, the petitioner herein has filed this petition in the capacity of Sole Proprietor of M/s. Lovely Tailors. The said concern has started its business in the year 1958 at Wada Pole Naka, Khadia, Ahmedabad. Thereafter, the said proprietory concerned was converted into a partnership firm having Shri Ishwarbhai Gokulbhai Surti and Smt. Vasantiben Ishwarbhai Surti as partners. It appears from the partnership deed dated 14. 5. 1975 that the said partnership firm was formed with a view to make expansion in trade in clothes and to do tailoring work, washing and sale of ready-clothes which was originally carried on by Shri Ishwarbhai Gokulbhai since long. Subsequently, with effect from 20th October 1979 Shri Ishwarbhai Gokulbhai has become the sole proprietor of the said firm.
( 3 ) DURING subsistence of the partnership firm of M/s. Lovely Tailors, one another firm, namely M/s. S. Lovely and Company was started in the year 1975 at the same place and same premises where M/s. Lovely Tailors was doing the business. The said M/s. S. Lovely and Company was having three partners namely, Smt. Savitaben Ishwarbhai Surti, Shri Hirabhai Ishwarbhai Surti and Smt. Vasantikaben Ishwarbhai Surti. All the three partners of this firm are related with each other. Smt. Savitaben Ishwarbhai Surti was wife of Shri Ishwarbhai Gokulbhai Surti who was initially a Proprietor and thereafter a partner of M/s. Lovely Tailors. Hirabhai Gokulbhai Surti is brother of Ishwarbhai Gokulbhai Surti and Smt. Vasantikaben Ishwarbhai Surti is daughter of Shri Ishwarbhai Gokulbhai Surti. Smt. Vasantikaben Ishwarbhai Surti is common partner both in M/s. Lovely Tailors and M/s. S. Lovely and Company and the premises of both the firms are the same. From the partnership deed of M/s. S. Lovely and Company dated 14. 5. 1975, it appears that the said partnership firm has been constituted with a view to carry on the business of cloth, tailoring of cloth and washing and to sell readymade clothes. During the course of the inquiry, it was found that M/s. S. Lovely and Company has brought its capital from Lovely Tailors. It was also found from the ledger account of M/s. Lovely Tailors that M/s. S. Lovely and Company has been financed by M/s. Lovely Tailors.
( 4 ) IT is further revealed that the third concern, namely, M/s. H. Lovely Stores had been started as a partnership concern with effect from 25. 10. 1974 at Shop No. 5-A, Capital Commercial Centre, Ashram Road, Ahmedabad. The said partnership was consisting of three partners, namely Shri Hirabhai Gokulbhai Surti, Smt. Savitaben Ishwarbhai Surti and Master Anilbhai Ishwarbhai (Minor ). It was found from the Deed of Partnership dated 25. 10. 1974 that the said partnership firm has been started fo
