{"id":146415,"date":"2003-04-29T00:00:00","date_gmt":"2003-04-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kakas-restaurant-vs-sh-k-l-sehgal-regional-on-29-april-2003"},"modified":"2016-11-19T10:12:37","modified_gmt":"2016-11-19T04:42:37","slug":"kakas-restaurant-vs-sh-k-l-sehgal-regional-on-29-april-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kakas-restaurant-vs-sh-k-l-sehgal-regional-on-29-april-2003","title":{"rendered":"Kaka’S Restaurant vs Sh. K.L. Sehgal, Regional … on 29 April, 2003"},"content":{"rendered":"
Delhi High Court<\/div>\n
Kaka’S Restaurant vs Sh. K.L. Sehgal, Regional … on 29 April, 2003<\/div>\n
Equivalent citations: 105 (2003) DLT 85, 2003 (68) DRJ 534, (2003) IIILLJ 436 Del, 2004 (1) SLJ 88 Delhi<\/div>\n
Author: M Sharma<\/div>\n
Bench: M Sharma<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
  Mukundakam Sharma, J.  <\/p>\n
 1.This writ petition is filed by the petitioner challenging the order passed by the Regional Provident Fund Commissioner, Delhi on 18.5.1983 under Section 7-A of the   Employees Provident Fund and Miscellaneous Provisions Act, 1952.   By the aforesaid order the Regional Provident Fund Commissioner had held that both the units, namely, Kaka Da Hotel and Kaka Restaurant constitute one establishment.    In the present petition the petitioner has prayed for setting aside and quashing the aforesaid impugned order.\n<\/p>\n
  2.The Regional Provident Fund Commissioner in the aforesaid impugned order has recorded various contentions raised on behalf of the petitioner as also on behalf of the Department.   After appreciating the evidence on record,   it was held by him  that the nature  of business of both the Kaka Da Hotel and Kaka Restaurant is common and both belong to one family and that the business of Kaka Restaurant was, in fact, expansion of business of Kaka Da Hotel.   The Regional Provident Fund Commissioner also referred to the various tests laid down by the Supreme Court to determine as to what would constitute one establishment  in the case of Associated  Cement Co. Ltd. vs. Its Own Workmen,  and<\/a> also in the case of M\/s. Pratap Press vs. Its Own Workmen<\/a> .  Upon appreciation of the evidence on record, the Regional Provident Fund Commissioner came to the conclusion that there is unity of ownership, unity of management, supervision and control,  general unity of purpose and accordingly held that there is justification in treating the Kaka Restaurant as branch department of Kaka Da Hotel.  The aforesaid findings and conclusion are challenged by the petitioner by filing the aforesaid writ petition.\n<\/p>\n
 3. During the course of his submission,  learned counsel appearing for the petitioner submitted that there is violation of the principles of natural justice in conducting the enquiry under Section 7-A of the Act  inasmuch as the report submitted by the Inspector was not given to the petitioner.   In support of the aforesaid contention, the counsel relied upon  the decision of this Court in “GLAMOURS” – PROPRIEtorS SETH HASSARAM AND SONS (INDIA) PVT.LTD. VS. THE REGIONAL PROVIDENT FUND COMMISISONER     reported in 1975 LAB I.C.954, which was upheld by the Division Bench in REGIONAL PROVIDENT FUND COMMISSIONER, NEW DELHI VS. GLAMOUR – PROPRIEtor SETH HASSARAM  AND SONS (INDIA) PVT. LTD.   reported in 1982 LAB. I.C. 1787.\n<\/p>\n
 4.I have carefully considered the aforesaid submission in the light of the aforesaid decisions of this Court.  In the aforesaid decision of this Court in “Glamours” – Proprietors (supra), there was no enquiry held by the Regional Provident Fund Commissioner   under Section 7-A of the Act.  A bare reference to paragraph 7 of the said judgment delivered by the Single Judge would make the aforesaid position clear. It was held in the  said paragraph that the petitioner   in the said case did not have  the opportunity to meet  the allegations made against them in the report submitted by the Inspector since no  enquiry was admittedly held by the Regional Provident Fund Commissioner    under Section 7-A of the Act, which could be accorded a finality.  It was held that the investigation made by the Inspector or the report submitted by him was no substitute for a quasi-judicial enquiry envisaged  by Section 7-A.   In the light of the aforesaid facts it was held  that since the aforesaid report of the Inspector was not given  to the petitioner, there was violation of the principles of natural justice.  In the present case a detailed enquiry was held by the Regional Provident Fund Commissioner    under Section 7-A of the Act.  The petitioner was given all opportunities  to adduce its evidence  and also to make its contentions and submissions during the course of the aforesaid proceedings.  I am, therefore, of the considered opinion that the ratio of the Single Judge  decision of this Court in “Glamour”- Proprietors (supra) is not applicable as the facts are clearly distinguishable.  Therefore, the first contention of the counsel appearing for the petitioner that the proceeding is required to be set aside and quashed  being in violation of the principles of natural justice, is found to be without merit and  rejected.  Such a grievance was also not raised by the petitioner before the Regional Provident Fund Commissioner .\n<\/p>\n
 5.It was next contended by the counsel appearing for the petitioner that the two units, namely, Kaka Da Hotel and Kaka Restaurant  are differently registered under the Shops and Establishments Act.      In order to decide as to whether or not the two units, namely , Kaka Da Hotel and Kaka Restaurant are  two different establishments or they constitute one establishment, it would be necessary  to ascertain  the same in the light of the various criterion and tests laid down by the Supreme Court in various decisions.  In this connection reference may be made to the decisions in Associated Cement Co. Ltd. (supra),   Pratap Press (supra) and also the decisions in  Rajasthan Prem Krishan Goods Transport Co. Vs. Regional Provident Fund Commissioner  reported in 1997 Lab. I.C. 146, Regional Provident Fund Commissioner, Jaipur vs. Naraini Udyog and Others  and<\/a> in Noor Niwas Nursery Public School vs. The Regional Provident Fund Commissioner and Others<\/a> reported in 2001 Lab. I.C. 323.\n<\/p>\n
 6.In the decision of the Supreme Court  in MANAGEMENT OF PRATAP PRESS (supra) it was held by the Supreme Court that in the cases where an establishment consists of  different departments or branches, the Court is to consider how far there is functional integrity between the two units, whether one unit cannot exist conveniently and reasonably  without the each other and on the further question whether in matters of finance and employment the employer has actually kept the two units distinct or integrated.  It was, however, made clear  in the said decision that each case would depend upon the facts and circumstances of each case and the same is required to be decided accordingly.  Therefore, the other relevant factors, as set out by the Supreme Court in the aforesaid decision in Pratap Press (supra) and also in the decisions of NOOR NIWAS NURSERY PUBLIC SCHOOL (supra) and in REGIONAL PROVIDENT FUND COMMISSIONER, JAIPUR VS. NARAINI UDYOG AND OTHRS (supra) are to be taken notice of.  In the case of Noor Niwas Public School (supra), in the context of the findings that the two units are  run by the same society and are located  in the one and the same  address thereby establishing geographical  proximity, various factors were taken notice of by  the Supreme Court to come to the conclusion that two units constitute one single establishment.  In the case of  Regional Provident Fund Commissioner, Jaipur (supra), the fact  that the two units  belonged to the members of the same family and that some of the employees were working for both the units and that the office of both the units are situated at the same premises and accounts being maintained by the same set of clerks,  were the factors which were taken notice of for coming to the conclusion that the two units is one establishment for the purpose of the Act.\n<\/p>\n
 7. The sum and substance  of the aforesaid decisions, therefore, casts a burden on the Court to  find out and ascertain where there is any unity of management, supervision and control, unity of finance and unity of functional integrality and geographical proximity between the two units.     If  in case such factors exist, in that event  it could be held that the two units are part of one establishment.\n<\/p>\n
 8.In the backdrop of the aforesaid legal position, I may now proceed to consider whether  in the facts and circumstances of the case it could be said that the two units involved herein constitute one establishment.   Both the units have common partners.  M\/s. Kaka Da Hotel consists of Sh. Subhash Kumar Chopra, Sh. Kishore Kumar Chopra and Sh. Ashok Kumar as partners whereas apart from the aforesaid three partners Kaka Restaurant has another partner, namely, Smt. Sukhwarsha Chopra, who is the mother of the aforesaid three partners.  The nature of the business of both Kaka Da Hotel and Kaka Restaurant  is common and it belongs to the same family.  It is also disclosed from the evidence   placed on record that the cook employed by Kaka Da Hotel  was transferred from Kaka Da Hotel and was engaged  for the purpose of conducting the business of Kaka Restaurant and at a later stage he was sent back again to Kaka Da Hotel.  The capital with which the Kaka Restaurant was initially started was taken  from the funds of Kaka Da Hotel. The same proves and establishes that there is unity of finance and management and unity of functional integrality between both the units.\n<\/p>\n
 9.It was also contended by the counsel appearing for the petitioner that both the units have their own separate kitchens, which are independent and that there is no geographical proximity between the two units.  In my considered opinion when there are two restaurants belonging to the same management but working from different places, they ought to have two different kitchens but the nature of the business was common and the employee of one restaurant was engaged even for the purpose of  carrying on business of the other unit also.  Therefore, I am of the considered opinion that there is  unity of supervision, control and unity of finance as also unity of functional integrality between the two units.\n<\/p>\n
 10.In that view of the matter, I am of the definite opinion that both the units could be clubbed as one establishment for all practical purposes.\n<\/p>\n
 11. In  ANDHRA  UNIVERSITY S. R.P.F. COMMISSIONER OF A.P reported in 1986 LAB. I.C. 103, it was held by the Supreme Court that the aforesaid Act is beneficent piece of social welfare legislation aimed at promoting and securing the well being of the employees and the Court will not adopt a narrow interpretation which will have the effect of defeating the very object and purpose of the Act.   In the said decision it was held that where the Department of Publications and Press of the University was running a printing press where the work of printing of text books, journals and magazines for the various  constituent and affiliated colleges as well of various items of stationery such as  admission forms to colleges, hostels and examination forms etc. was carried out  and about 100 persons were employed in connection with the said activity in the said Department , the establishment, namely, the Department of Publications and Press could be said to be a factory as such activities clearly constitute  manufacture  within  the meaning of the said expression and it was held that since more than 20  persons were employed in concerned establishment, the establishment would be liable for coverage under the Act.\n<\/p>\n
 12. All the aforesaid facts, which are mentioned hereinabove, definitely and essentially prove and establish that there is inter-linking and inter-dependence of the two units.   There is also functional integrality and geographical proximity .  Therefore, the findings recorded by the Regional Provident Fund Commissioner are found to be legal and justified.  In that view of the mater, I find no merit in this petition and the petition is dismissed but without any cost.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Kaka’S Restaurant vs Sh. K.L. Sehgal, Regional … on 29 April, 2003 Equivalent citations: 105 (2003) DLT 85, 2003 (68) DRJ 534, (2003) IIILLJ 436 Del, 2004 (1) SLJ 88 Delhi Author: M Sharma Bench: M Sharma JUDGMENT Mukundakam Sharma, J. 1.This writ petition is filed by the petitioner challenging the order […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-146415","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nKaka'S Restaurant vs Sh. K.L. 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