Kapoor Rubbers Pvt. Ltd. Vs. Regional Provident Fund Commissioner and anr. - Court Judgment

Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge of the making of an order but one cannot understand how a party, who has acquired knowledge of the making an order either directly or constructively can ignore the same and belatedly seek redress just because the authority making the order had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - it is an admitted fact that the petitioner company as well as organo chemical industries were in existence prior to 1977. admittedly, the petitioner-company took the machinery of organo chemical industries on lease in december, 1977 and started its factory from january, 1978. the only point to be considered here is whether the functioning of organo chemical industries continued under the new management of the petitioner-company or whether the petitioner-company started a new establishment with the machinery of organo chemical industries.t.h.b. chalapathi, j. 1. the petitioner-m/s kapoor rubbers private limited was a company incorporated in the year 1974 and in december, 1977 they got the machinery of organo chemical industries on lease and started the production in january, 1978. by a letter dated october 28, 1980 the assistant commissioner of the regional provident fund commissioner directed the petitioner company to deposit the provident fund dues in respect of all the eligible employees with effect from may 1, 1980. the representation of the petitioner company was considered by the regional provident fund commissioner, who by his order dated september 14, 1982 held that -- kapoor rubbers private limited is coverable under the employees' provident fund and miscellaneous provisions act, 1952 with effect from december, 1977 and the proceedings under section 7-a of the act for determination of the dues payable by the said company shall continue.2. aggrieved by the said order, the petitioner filed this writ petition.3. according to the learned counsel for the petitioner, though the petitioner-company was incorporated in the year 1974, it took over the machinery of organo chemical industries on lease in december, 1977. therefore, their line of activities has to be treated as a new establishment and, therefore, they are entitled to the benefits under section 16(1)(b) of the act which reads as follows:'section 16. act not to apply to certain establishments - (1) this act shall not apply ......................(b) to any other establishment employing fifty or more persons or twenty or more, but less than fifty, persons until the expiry of three years in the case of the former and five years in the case of the latter, from the date on which the establishment is, or has been, set up.it is an admitted fact that the petitioner company as well as organo chemical industries were in existence prior to 1977. admittedly, the petitioner-company took the machinery of organo chemical industries on lease in december, 1977 and started its factory from january, 1978. the only point to be considered here is whether the functioning of organo chemical industries continued under the new management of the petitioner-company or whether the petitioner-company started a new establishment with the machinery of organo chemical industries. there is no evidence to show that organo chemical industries were closed and there was no manufacturing activities in the company prior to taking over of the machinery by the petitioner-company on lease in december, 1977. admittedly, the petitioner-company has taken over the machinery of organo chemical industries and started the production. thus, at the most, it can be said that there is a change in management. but the change of management of an establishment does not attract section 16(1)(b) of the act. since that does not amount to starting a new establishment, therefore, such a change of management does not secure a further period of protection under section 16(1)(b) of the act. in fact, section 16(1)(b) is intended to protect the persons connected with the management of a company. the real test is whether the industry or an establishment is started afresh so as to get the benefit under section 16(1)(b) of the act. the provision is only to protect the new industries, but not the existing industries. though the industry has changed hands, it is different thing if old industry ceased to function and closed down for ever and somebody purchased the machinery and starts the production. that is not the case here. the petitioner has taken the machinery to run a unit on lease and continued the manufacturing process with the same machinery. therefore, i am of the opinion that the writ petition is devoid of any merit and is liable to be dismissed.4. the writ petition, therefore, fails and is accordingly, dismissed. no order as to costs.