The court ruled that the mere existence of common ownership is insufficient to apply provisions of the Act; evidence of functional integrity and operational management is crucial.

JUDGMENT :

(ARUN DEV CHOUDHURY, J.)

1. Heard Mr. S. Chakrabarty, learned counsel for the petitioners and Mr. P.K. Roy, learned Senior counsel, assisted by Ms. S. Chakraborty, learned counsel for the respondents.

2. The Challenge:-

2.1 The present writ petition is filed by the petitioners assailing an order dated 25.04.2016 passed by the Regional Provident Fund Commissioner –II (hereinafter referred to as the Authority), whereby, invoking the provision of Section 2(a) of the EMPLOYEES PROVIDENT FUND AND MISCELLANEOUS PROVISIONS ACT , 1952 (hereinafter referred to as the Act, 1952), the Act 1952 has been made applicable to the petitioner school with effect from 20.01.1997, by clubbing the petitioner school with another school, namely, Tiny Tots Home, as a single establishment. The petitioner No. 1, is Muktashree High School, Silchar, and the petitioner No. 2 is the Headmaster of the said school.

3. The Maintainability of the writ petition:-

3.1 The learned Senior counsel for the respondents has raised a question on maintainability of the present writ petition, on the ground that any order passed under Section 2(a) of the Act, 1952, is an appealable under Section 7-A before the Provident Fund Tribunal, however, instead of preferring such appeal, the present proceeding is preferred, therefore, this writ petition is not maintainable, having efficacious alternative remedy.

3.2 It is the further contention of the respondents that the impugned order was passed by giving due opportunity of hearing to the petitioner and no case of procedural illegality, irregularity, irrationality, impropriety or unreasonableness has been made out to enable this Court to exercise of its power of judicial review under Article 226 of the Constitution of India.

3.3 On the other hand, learned counsel for the petitioner contends that by clubbing two schools, when both the schools, having separate registrations and are distinct entities, the authority has exceeded its jurisdiction by treating two separate schools as part of one single establishment and therefore, such order being passed without jurisdiction, this Court can rightly exercise its power of judicial review.

4. Determination on maintainability Coming to the arguments on the availability of alternative efficacious remedy, it is seen that initially, this writ petition was entertained on 10.06.2016 and the matter was admitted for hearing on 07.05.2019. It is also not in dispute that at the relevant point of time, the Tribunal was not available in the State of Assam, though during the pendency of this proceeding, the Tribunal at Guwahati was constituted. However, even on the date of hearing of this case, such Tribunal is non functional, due to non-availability of the Presiding Officer, and therefore, in the given facts of the present case, this Court is not inclined to relegate the petitioner to the Tribunal, which as on date, admittedly is not functioning, inasmuch as, the rule of alternative remedy is not a compulsion, but self- imposed rule.

5. Arguments on merit by the learned counsel for the petitioners:-

5.1 Though, the proceeding under Section 2A of the Act, 1952 was initiated for clubbing and determining the liabilities of the petitioner w.e.f. 01.01.2003, but by the impugned order dated 25.04.2016, the Act has been made applicable by clubbing both the schools w.e.f. 20.01.1997, which is beyond the period specified in the notice.

5.2 Though, the Authority in the impugned order recorded that the petitioner school never employed 20 or more employees, at any point of time and th