Provident Fund Inspector, Trivndrum v. Secretary, N.S.S. Co-Operative Society, Chan-Ganacherry

Bhargava, J. These twelve connected appeals arose out of twelve prosecutions instituted by the appellant, Provident Fund Inspector, Trivandrum, aga~nst the respondent, Secretary, N.S.S. Co-operative Society, Changanacherry, for offences punishable under the Employees' Provident Funds Act, 1952 (hereinafter referred to as "the Act") on the ground of contravention of the provisions of the Employees' Provide,nt Fund Scheme, 1952 (here-inafter referred to as "the Scheme"). The specific charges related to the failure of the ,respondent ( 1) to pay to the Employees' Provident Fund the employees' and the employer's share of con-tribution together with administrative charges for the twelve quar-ters comprised between May, 1961 and February, 1964; (2) to submit the returns in Fonns 5 and 10 for the same twelve quarters; (3) to send statemeints of recoveries of contributions in Form 12 for the same 12 quarters; and ( 4) to send the initial return in Form 9 showing the particulars as on 30-4-1961 along with Fonn 2 in the manner specified in the Scheme. The pay-ment of ithe employer's and employees' conttibutio,n to the Provident Fund, and the question of sending the various state-melfts arose in respect of a Press which was purchased by the N.S.S. Co-operative Society on the 21st March, 1961 from the Tr11vancore-Cochin Central Print\ng and Publishing Co-operative Society, Ltd. According to the appellant, this e;;tablislunent of the Printing Press had been set :ip in the year 1946 and it continued in existence even subsequently when, in March, 1961, the Press was purchased by the N.S.S. Co-operative Society. Until the purchase.by the N.S.S. Co-operative Society, the establislunent was employing only 9 workmen; but, a.fter the N.S.S. Co-operative Society started working the Press, the number of workmen increased beyond 20, so that the Act became applicable to this establish-ment. The case was that, since the Act became aplicable w.e.f. April, 1961, it was the duty of the respondent to comply with the requiremeints of the Act and pay the contribution and send the various returns which the respondent failed to do. On trial, the Magistrate recorded the fiD.ding' that the establishment as run by the N.S.S. Co-operative Society after 1961 could not be held tu• be an old establishment set up in the year 1946, had emer~d as a new establishment in 1961, and, ccmsequently, for a period of three years from April, 1961, the provisions of the Act would not apply to this establislunent because of the provision contained in section 16(l)(b) of the Act. On this view, the Magistrate acquitted the respondent in al! the cases. The respQildent appeal-ed to the High Court of Kerala. The High Court disagreed with . the Magistrate and held that, even though there was change of management, change of workers and change of machinery when the N.S.S. Co-operative Society purchased the Press in 1961, the business that wai carried on was the same as it was at the time of purchase, so that it could J!IOt be held that a new establishment had come into existence different from the one which existed· before the purchase. • The High Court, however, took the view ;n law tlrat, under s. 16 ( 1) (b) of the Act, an establislunent is given exemption for a period of 3 years from the date on which it came within the purview of the Act, treating the establislunent as an infant establislunent standing in need of protection. The High Court, therefore, held that this estab!islunent was protected from the applicability oE. the Act for a period of 3 years from 21st March, 19§1 which would cover the period in respect of which· prosecutions were launched by the appellant. On this ground, the High Court upheld the orders of acquittal passed by the· Magistrate. The appellant has now come up in these appeals against this de9ision of the High Court by spP.cial leave granted by this. Court.

It iS quite clear that, on the questiqn of law decided by the Hi)!h Court in .favour of the respondent, t!:at decision cannot be

upheld in view of 'the decisiop. of this .Court in R. Ramakrishna Rao v. State of Kera/a(') where it was held that, under s. 16(1)(b), in the case of a new establi$ment, the period. of five years (laid .down by subseque,nt amendment) is counted forward from the date the establishment is set up, but, in the case of an existing .establishment, from the date the establishment "haJ been" set up. In the present case, since the establishment was first se~ up in the year 1946, the period o,f exemption for purposes of applyil!j; s. 16(1)(b) of the Act would run from the date on which the establishment had been set up and could not be counted from Apr;!, 1961 when the Act became applicable to this establishment. In view of that decision of this Court, the acquittal of the respon- ·dent on the ground given by the High Court caninot be maintained.

However, on behalf of the resp~ndent, it was argued that, on the evidence in this case, the High Court was not justified in recording the finding that this establishmemt as set up in the year 1946 continued to exist as it was before, even after the purchase by the ]'!.S.S. Co-operative Society in 1961. It was urged that, on facts, the correct finding that should have been. recorded was that thei old establishment ceased to exist and an entirely new one was set up in the year 1961. In support oi this plea, we were taken by learned counsel for the parties through the evidence which was t~ndered during the trial before 'the Magistrate and, after going through it, we are inclined to accept the submission made on behalf of the respondent.

The burden of proving that the old establishm.ent had continued and that a new establishment was not set up in the year 1961 was on the appellant, as the appellant had filed criminal cases for prosecution of the respondent. The first prosecution witness was the Provident Fund Inspector, Raghunathan, but most of his evidence relates to facts discovered by him and not in his personal knowledge. It is he who made a report for the prosecution o.f the respondent and in that report itself he admitted that the strength of the establishment was Jess than 20 till 16th April, 1961 when it was purchased by the N.S.S. Co-operative Society. He added that there were only 9 employees at the date of purchase. ·Of these 9 employees, 6 were re-employed by the purchasers. Significance attaches to the word "re-employed" which implies that there was no continuity of employment even of those 6 em-ployees. That witness also admitted that,· after the purchase, the Press was removed from its original place and additional machi-neries were purchased and added to the Pre~s. According to him, he also received information that compensation due to the workers till the date of sale was disbursed by the previous owner, T.C. ·Central Co-operative Printers and Publishers. He added that the persons working in the Press at the time of his evidence were all persons who !)ad been appointed by the N .S.S. Co-operative Society. Thus, his evidence does not prove that the estabushment run by the N .S.S. Co-0perative Society was the same as the establlshment which was being run by the· previous owner of .the Press. The owner chlljllged, the machinery changed, the location of the Press was altered, and even the employees were not the same as before. In fact, none of the employees, according to his evidence, was continued in service. fhe only witness on whom reuance could be placed on beha1f of the appellant to prove continuity ot the business was P.W. 2, Sadasivan Nair, who claim-ed to be one of the emplOyees in this Press of the previous emplo-yer and who state,([ that he continued to be employed ~Y the N.S.S. Co-operative Society. His evidence has rigbtly been criti-cised on the ground that he is a disgruntled person who lost his service some years later when the press was being run by the N.S.S. Co-operative Society. Further, he stated on oath that the Press was taken over with all its workers which is clearly a wrong statement and is contradicted by P.W. 1, the Provident Fund Ins-pector himself. lt is also significant that, according to the Provi-dent Fund Inspector, compensation was paid to the previous em-ployees by the previous employer which clearly shows that the previous employees were not continued in service, and that they were paid compensation for tennination of their services on transfer of the Press presumably in accordance with the provisions of section 25FF of the lnctustrial Disputes Act. The prosecu-tion cnuld haw easily produced the accounts of the previous owner to show that there were at lea.st some employees who were continued in service and who were not paid compensa-tion, but no such attempt was made on behalf of the appellant. Even the sale-deed in favour of the N.S.S. Co-operative Society has not been put in the paper-book before us and its absence is significant in view of the statement made by D.W. 1, one of the Directors of the N.S.S. Co-operative Society, who stated that the N.S.S. Co-operative Society neither purchased the establishment as a going concern, nor did it eonfinue to run the same establish-ment. According to D.W. 1, after the purchase of the Press, there was a closure for a period of about 3 months and a new business was started in June or July, 196! when a new establishment was set up. The workmen employed by the previous owner were not taken over on their old conditions of service. Fresh appointments were made and all workers were newly recruited though at the time o.f this _recuitme?t, s?me of the old empl~yees w;re also taken. m .service. This evidence would clearly show that a new establishment was set up by the N.S.S. Co-operative Society after the purd1asc of th~ press hy it from th,· previous owner and that there wa; u,1 continuity ot the old e'lnblishment. ,,, we have L2SupCl/70--t9

said earlier, the appellant could have summoned the accounts of the previous owner to show that these facts alleged by D. W. 1 are not correct. Evep. the N.S.S. Co-operative Society is maintain-ing accounts and registers; and no attempt was made on behalf of the prosecution to seize or su1l11llon those registers. It is true that the respondent himseM', on his own initiative, did not produce those ;egisters in def~nce but, in a criminal case, such a circums-tance cannot justify raising a presumption that the registers would have contradicted the evidence of D.W. 1. D.W. 1 also stated that there was a specific provision in the sale-deed that none of the workers, who were working in the press purchased, were to be taken in service !ljlld nobody was, in fact, taken. This statement could easily have been challenged before us if the sale-deed had been included in the Paper-book. In the absence of the sale-deed which has not been brought to our notice, we see no reason to 'disbelieve the statement of D.W. 1 and we consider that his evidence is decidedly preferable to that of P.W. 2 .whose evi-dence we have mentioned above.

The only other prosecution witness who need be mentioned is P.W. 3 who also employed by the N.S.S. Co-operative Society in this Press after the purchase. He was, however, not an employee in this press before its purchase by N.S.S. Co-operative Society. He was employed ~n another press which was also purchased by this Co-operative Society, so that his evidence about continuity of his service cannot indicate· that this particular establishment was a continuation of the old establishment set up by the previous owner. On a discussion o.f the entire evidence and in view of the fact that the burden of proof lay on the appellant, we tl..tmk that the condusions of fact which must be accepted are; that, at the time . of the purchase, a new owner came in place o.f the previous owner; the work of the Press was stopped on sale and was re-started after a break of about three m~nths; the machinery in the Press was also altered; 'the persons employed previously were not continued in service, while a fresh recruitment of employees took place amongst whom only six happened to be previous employees; and compensation was paid to the workmen at the time of the sale 1iy the !Jrevious owner. On these facts, no other conclusion can be drawn, except that the old establishme_nt was completely closed when the tramfer of ownership took place and an entirely new establishment was set up three months later, so that, in this c~se, the benefit of non-applicability o.f the Act under s.16 ( 1 ) (b) of the Act for a period of three years was available to the respondent from June or July, 1961 when the new establishment was set up.

In this connection, learned counsel appearing for the 11;ppellant drew our attention to a few decision, including one of tlhs Court to urge that we should not hold that this establishment was newly set up in the year 1961. The first of these decisions is Lakshmi Rattan Engineering Works v. Regional ProviderU Fund Cammi· ssioner, Punjab, and others(') in which this Court held that a change in location of an establishment or a change in the line of business would not have the effect that a new establishment has been set up, provided there was continuity of working. That case cannot apply to the facts as found by us in the present case where there was no continuity of the business aind there were the additional factors of termination of services of all the workmen and a new establishment being set up by fresh recruitment of work-men, in addition to altef'.ltion in machinery in the Press. The decisions in Jamnadas Agarwa//a and Another v. The Regional Provident Fund Commissioner, West Bengal & Others,(') and Messrs Bharat Board Mills Ltd. v. The Regional Provident Fund Commissioner and Others('), are also inapplicable to the facts before us in the present case. A good deal of reliance was placed on a d.ecision of a learned single Judge of the Madras High Court in Devi Press v. Regional Provident Fund Commissioner, Madras and Another;(') but even in that case the facts were different. One of the prom~nent facts before the Judge was that the parti-cular business transferred was being run under licences and those licences were also transferred by the ~eller to the purchaser. In view c.f this transfer, the learned Judge held that it was a case of sale of a going concern "nd there was continuity of business .. Without expressing any opinion as to whether the learned Judge was correct in holding that there was continuity of business in that case, the very fact that he held the establishment not to have been newly set up on the ground that it was a case of a transfer of a going concern distinguishes that case from the case before us. In the present case, the facts established show that the old business was close and was re-started as a new business after recruiting new workmen. The principle to be applied in arriving at a decision in such a case appears to us to h~ve been rightly explained in a decision of a learned single Judge of the Madras High rourt in Vithaldas Jogannathadas and Another v. Regional Provident Fund Commissioner and Another('). The teamed Judge held:-

"If, in a particular case, it appears that the new es-tablishm~nt is not genuinely such, but is only an olC: one f?rm~l~ resuscitated in order to avoid the legal obliga-tion, 1t 1s always open to the Court to hold that it is the old establishment which is substantially continuing, and that the liability to contribute must be affixed to the apparently new form also. But where, in reality, the old establishment has come to an end and there is a new estabhshmeni, this establishment is entitled to infancy

0) [1966] \ L.L.J. 741. (2) A.LR. 1963 C·>I. 513.

0) A.l.R. 1957 Cal. 702. (4) A.LR. 1965 Mad. 462. (5) [1966] 1 L.L.J. 240.

L2SupCl/70-20

protection in its own right, even if it happens by coinci-dence to have employed a large part of the personnel of foe previous establishment."

This principle, applied to the facts of the present case, can only lead to the conclusion that the N.S.S. Co-operative Society had set up a new establishment and the provisions of s, 16(1)(b) of the Act have to be applied on the basis that the new establishment was set up in June or July, 1961, so that there was no liability to pay Provident Fund contributions or to file the various returns during the period to which the prosecutions related. The acquit-tal of the respondent was, therefore, fully justified. The appeals are dismissed.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 145 to 156 of 1968.

Appeals by special leave from the judgment and order dated September 6, 1967 of the Kerala High Court in Criminal Appeals Nos. 114 to 124 of 1967.

. R. H. Dhebar, Lily Thomas for S. P. Nayar, for the appellant (m all the appeals).

A. S. Nambiar, for the respondent (in all the appeals).