The main legal point established in the judgment is that the dealership has to be considered distinct from the transfer as referred in section 17B of EPF & MP Act, 1952, and the liability would be based on the number of employees independently engaged by the dealer.

JUDGMENT

A. Muhamed Mustaque, J.

This writ petition is filed by the EPF organization challenging an appellate order passed by the Employees Provident Fund Appellate Tribunal in an appeal filed by the first respondent. By the appellate order, it was found, there is no transfer of establishment in terms of section 17 B of EPF & MP Act, 1952 to fasten the liability of M/s. Hindustan Petroleum Corporation Limited (hereinafter referred to as M/s. HPCL for short) on its dealer, the first respondent herein. The brief facts involved are as follows:

M/s. HPCL, a Government undertaking is covered by the EPF & MP Act, 1952. The first respondent was appointed as a dealer to run the outlet as per the agreement dated 28.3.2003. It appears that previously this outlet was run by M/s. HPCL. The EPF authorities finding that there is a transfer of establishment and the dealer would step into the shoes of the business of M/s HPCL, fastened the liability on the dealer under the EPF & MP Act, 1952. The dealer has a precise case that they have never engaged 20 employees at any point of time and therefore, they have to be treated as a separate entity for the purpose of consideration under the EPF & MP Act, 1952.

2. The appellate authority accepting the contention of the dealer that there is no transfer of establishment, remitted back the matter for reconsideration to find out staff strength of the dealer. Challenging this order, the EPF organisation has approached this court.

3. The question is whether any transfer has taken place between the M/s. HPCL and the dealer. The relation between M/s. HPCL and dealer is principal and dealer. A dealer is different from a branch. The dealer cannot be treated as a transferee by virtue of any transaction to attract section 17 B of EPF & MP Act, 1952. A dealer has to be understood an appointee by terms, under which he was appointed to deal in the business of the principal. By appointing a dealer in either, he need not necessarily to assume the ownership of subject of dealership. The dealer has to be understood in normal circumstances, a person who deals on behalf of another. Therefore, in a sense there is no transfer of an establishment, though he may intermediate with subject of same establishment by virtue of dealership. Transfer of establishment presuppose that there is a transfer of interest. Therefore, the dealership has to be understood as distinct from transfer as referred in terms of 17B of EPF & MP Act, 1952 unless it is shown that there is a transfer of interest in the establishment, a dealer cannot be treated as a transferee for the purpose of section 17 B of the EPFMP Act, 1952.

4. No doubt, if the owner ship of subject of the dealership belongs to M/s. HPCL, the EPF authorities can proceed against assets of HPCL, which is available with the dealer. Therefore, to fasten the liability under section 17 B of EPF & MP Act, 1952, there must be a continuing liability in respect of the same establishment. In that view of the matter, it can be concluded that, there is no transfer in terms of section 17 B of EPF & MP Act, 1952. As already made it clear for any arrears due from the M/s. HPCL, EPF authorities can proceed for recovery from the establishment in terms of section 8 B of EPF & MP Act, 1952. Since the dealership of the petroleum outlet has to be considered distinct from the transfer as referred in section 17B of EPF & MP Act, 1952, this court is of the view, if at all the petitioner is liable that would be on the ground of number of employees they independently engage, and not based on the employment made by the principal who appointed the dealer. Therefore, there is no scope for interfering with the order of remand. The writ petition is dismissed. No costs.