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M/S Sanwal Das Govind Pd. Khanna v. Union Of India - WRIT - C No. 12798 of 1984  RD-AH 5969 (3 April 2007)
Civil Misc. Writ Petition No.12798 of 1984
M/s Sanwal Das Govind Prasad Khanna 27/10, Mahtma Gandhi Marg, Civil Lines, Alld..Petitioner
Union of India, Department of Labour and Employment, New Delhi and another
Heard Shri A.K.Goyal learned counsel for the petitioner and Shri K.C.Sinha, learned Assistant Solicitor General of India appearing for Union of India - respondent no.1. Initially there was a partnership firm with the name of M/s Sanwal Das Govind Prasad Khanna having several partners. Admittedly, the said firm in the course of its business was employing more than five persons hence Employees Provident Fund Act 1952 was applicable upon them. Thereafter the firm was dissolved in 1971 and different partners of the dissolved firm started separate businesses either as proprietorships or as different partnerships. Shri Govind Prasad Khanna started the business in the name of petitioner as trade name and according to para-6 of the petition it was Hindu Undivided Family Business for three years. Thereafter only three persons conducted the said business as partners. Shri Govind Prasad Khanna died in the year 1996 and Smt. Alka Khanna continued the said business as her proprietorship (Supplementary affidavit filed in September 2006). Proceedings for recovery of contribution towards provident fund were initiated against the petitioner. The matter was remanded by the High Court to the Central Government. Consequently Legal Advisor Ministry of Labour, Government of India, New Delhi passed the order on 8.8.1984 which is challenged through this writ petition. Copy of the said order is Annexure-VIII to the writ petition which bears the date 8.8.1984. However, in the writ petition at several places including prayer clause it is stated to be of 22.8.1984.
In the said order it is clearly mentioned that on behalf of Department no one appeared and the authority deciding the matter was handicapped due to that. Similar orders passed in respect of other erstwhile members of M/s Sanwal Dass Khanna who had started their separate businesses were also filed before the said authority. One of the said decisions was dated 4.2.1978. One more such decision dated 13.8.1997 has been filed alongwith Supplementary affidavit filed in September 2006. In both the cases it was held that the old firm M/s Sanwal Dass Khanna completely dissolved in 1971 and until 1971 no dues of provident fund were outstanding against the said firm. It was further held that after dissolution the partners started their separate businesses and said businesses had absolutely no concern with the business carried out by the old dissolved firm. Exactly similar is the position of the present petitioner. Through the impugned order the authority remanded the matter back to Regional Provident Fund Commissioner.
If one of the parties does not participate in the proceedings, the court or the authority is not powerless to decide the matter. If the Department was not pursuing the matter then it ought to have been decided ex-parte.
However, as similar orders have already been passed by the same authority in respect of other similarly situate persons hence no useful purpose will be served by remanding the matter (or maintaining the remand order). Even during the arguments learned counsel for Union of India has not been able to show that there was any continuity of business between the old firm M/s Sanwal Dass Khanna and the petitioner of this writ petition.
Accordingly, writ petition is allowed. Impugned order is set aside. Petitioner shall be held liable to make any contribution towards provident fund on the basis of business of the old dissolved partnership firm M/s Sanwal Dass Khanna in respect of employees engaged by the said firm.
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