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4. The learned Advocate for the petitioner placing reliance in the decisions in the matter of Isha Steel Treatment, Bombay v. Association of Engg. Workers, Bombay & Anr., reported 1987 I CLR 232, in Associated Polymers Ltd. v. Union of India and Ors., reported in 1997 II CLR 294, and in Magic Wash Industries (P) Ltd. and Ors. v. Asstt. Provident Fund Commissioner and Ors., reported in 1999 II CLR 426, submitted that neither the respondents-authorities could find functional integrality on the basis of the materials placed on record or pursuant to the inspection of the premises by the Enforcement Officer, between the petitioner's establishment and M/s. Copper Chimney in relation to the business of the petitioner in the premises in question nor the authorities applied their mind to the materials placed on record while arriving at the finding about the clubbing of the establishment of the petitioner with that of M/s. Copper Chimney. He has further submitted that the respondents failed to take cognizance of the undisputed facts on record established by documentary evidence which "disclose the absence of inter-dependency, financial participation, functional integrality, exchange of man-power, common control and common ownership between the petitioner and the M/s. Copper Chimney, and having passed the impugned order ignoring all these aspects and directing clubbing of the petitioner's establishment with M/s. Copper Chimney, the respondents-authorities have clearly acted arbitrarily and in contravention of the provisions of law, and therefore the impugned order cannot be sustained.

5. The learned Advocate for the respondents, on the other hand, has submitted that it was the petitioner itself who had approached the establishment immediately after the amendment to Section 16(1)(d) of the said Act for allotment of Code number, having realised about the applicability of the said Act to the establishment, and therefore, it does not lie in the mouth of the petitioner to claim infancy protection even after the amendment to the Section 16 of the said Act. It was also sought to be contended that before passing of the impugned order, the petitioner had never claimed any right for continuation of the infancy period beyond 11th September, 1997 and the plea in that regard has been raised only in the Writ Petition. He has further submitted that the authority by taking into consideration the documentary evidence in the form of Agreement between the parties has arrived at the findings about the functional integrality, though the same expression might not have been used in the impugned order, but for all purposes the authority, on detail analysis of the arrangement between the parties, has held that there is a sufficient control by M/s. Copper Chimney over the business of the petitioner in the premises in question and that therefore no fault can be found with the impugned order directing the clubbing of both the establishments for the purpose of holding that the petitioner's establishment was covered by the provisions of the said Act from the date of commencement of the business in the said premises in question. According to the learned Advocate for the respondents, there is no case made out for interference in the said impugned order.

6. The first point which arises for consideration is whether the respondent-authority was justified in holding that the identity of the petitioner cannot be dissected from that of M/s. Copper Chimney and on that count the petitioner's establishment is covered by the provisions of the said Act with effect from 6th September, 1995, and whether the finding, in that, regard, is borne out from the records. Apparently, the said finding is based purely on the basis of the clauses of the Agreement between the petitioner and the M/s. Copper Chimney and it does not relate to any other material on record or even to the investigation carried out by the Enforcement Officer of the respondents prior to arriving at the same finding. As rightly submitted by the learned Advocate for the petitioner, the impugned order nowhere discloses analysis of any other material on record to ascertain the issue regarding the financial participation or exchange of man-power or inter-dependency of both the establishments viz. that of the petitioner and M/s. Copper Chimney in relation to the business of restaurant conducted by the petitioner in the premises in question. The impugned order merely relates to the two of the clauses of the Agreement, viz. Clause Nos. 6 and 7, between the parties to arrive at the said finding. Clause (6) of the Agreement provides that though M/s. Copper Chimney is known as a speciality Indian Restaurant considering the customers and market demands, M/s. Copper Chimney is free to introduce different types of Cuisines like Chinese, continental etc, for the betterment, and Clause (7) provides that the maintenance of discipline among the staff and maintenance of the quality and the standard of food to be served to the customers and smooth running of the business shall be supervised by and it shall be the responsibility of the M/s. Copper Chimney. Undisputedly, the services of the M/s. Copper Chimney were sought to be availed by the petitioner, the former being known to have expertise in the field of running restaurants. The said fact was neither disputed nor found to be incorrect either in the course of investigation or on the basis of the materials on record. Bearing in mind the said fact, entrusting the job of ensuring the customers of restaurant the benefit of different types of cuisines as well as the better quality of service and standard of food, and for that purpose having engaged the services of M/s. Copper Chimney, it can, by no stretch of imagination, be held to be surrendering full control of restaurant to M/s. Copper Chimney and for the same reason, there was no case made out to hold that there was functional integrality between the two establishments in relation to the business of the restaurant in the premises in question. Merely because, the petitioner had agreed for certain percentage of gross sales as commission as also requiring the supervision by M/s. Copper Chimney in the matter of assuring discipline among the staff members from the point of view of maintenance of the quality of service as well as the standard of food to the customers, the same cannot be a justification to hold that the identity of the petitioner cannot be dissected from M/s. Copper Chimney. On the contrary, the fact that M/s. Copper Chimney had been paid a sum of Rs. 4 lakhs as non-refundable royalty and 3% of the gross sales as commission for the services to be rendered by M/s. Copper Chimney in the matter of running of restaurant of the petitioner discloses that there was absolutely no functional integrality between the two establishments, hence the findings arrived at by the authority that the identity of the two establishments cannot be dissected from each other is contrary to the materials on record, and, as rightly submitted by the learned Advocate for the petitioner, it discloses non-application of mind by the authority to the relevant materials on record. It is also pertinent to note that the officer of the respondent itself who had visited the premises of the petitioner had arrived at a finding that there was no functional integrality between the two establishments and there was no inter-dependency for deciding the issue of clubbing and yet, totally ignoring the said report of the officer of the respondent itself, the respondent-authority has jumped to the conclusion regarding the issue pertaining to the clubbing of the establishments and therefore the impugned order cannot be sustained and is liable to set aside.

8. In Isha Steel Treatment v. Association of Engg. Workers's case (supra), the Apex Court has held thus:-

"It was, however, argued in this case on behalf of the workmen that since the Provident Fund accounts of the employees and the Employee's State Insurance accounts of the two units had common numbers with the authorities concerned and settlement containing similar terms (copies of which are not produced before us) had been entered into in 1974 between the management and the workmen of the two units, it should be held that the two units had functional integrality between them. We are of the view that even these factors are not sufficient to hold that the two units were or, and the same notwithstanding the fact that the nature of the business carried on in them was the same.