JUDGMENT 1. Evans Food Corporation - "Evans" for short a firm registered under the Indian Partnership Act is engaged in the business of manufacturing cattle feed. Super Traders - "Super" for brevity - also a firm, is the sole distributor of the product of Evans Food Corporation. Based on a report of the squad of inspectors dated 1st June 1988, the Regional Commissioner" of the Employees' Provident Fund, the Respondent No. 2, hereinafter referred to as the Commissioner, by his order dated 28th February 1989 (Ext. P 18), made under S.7A of the Employees' Provident Funds and Miscellaneous Provisions Act - the Act for brevity - determined a sum of Rs. 1,08,911.65 as the employer's contribution and directed the petitioner to remit it. The Commissioner held that Evans and Super constitute one establishment and the number of workers employed by them together exceeds 20. The demand of the employer's contribution is for the period between 1st January 1982 to 1st January 1988. The petitioner who is the Managing Director of Evans impugns the order dated 28th,February 1989 (Ext. P-18). 2. Evans commenced its business in 1973 as a proprietary concern, of Evan Punnen, the petitioner. On 1st January 1983 it was reconstituted and made a firm by adding Babu the second son of the Managing Director as a partner. On 18th August 1983, Biju Evan, another son of the Managing Director of Evans as proprietor of "Super" was the sole distributor of the product of Evans. On 1st November 1983 Super was. constituted as a firm by admitting Ms. Rani Susan, the daughter of the Managing Director as a partner. On 1st April 1985 Mrs. Chandi, the mother of the Managing Director and Mrs. Saramma, the wife of the Managing Director were added as partners of Super. 3. Two questions arises for consideration.- (i) Whether Evans and Super constitute one establishment for the purposes of the Act; and (ii) Whether Evans is the employer as defined in clause (e) of S.2 of the Act. 4. There are two sets of facts which need to be weighed against each other for the purpose of judging whether Evans and Super constitute one establishment. (a) Business of Evans and Super is admittedly carried on in the same building though in separate parts. 4. There are two sets of facts which need to be weighed against each other for the purpose of judging whether Evans and Super constitute one establishment. (a) Business of Evans and Super is admittedly carried on in the same building though in separate parts. (b) The vehicles of Evans are being used for transporting the goods for being supplied to the customers of Super, Super pays for the use of the vehicles of Evan. (c) Super being the sole distributor of Evans there is no other distributor of these goods. (d) Super has no godown of its own. The goods are transported directly from the manufacturer's factory. (e) Customers of Evans who existed right from the beginning continued to be the customers of Super. (f) Super receives goods from Evans on credit. Against the above facts which suggest that the two business enterprises have many things in common, note the following facts: (i) The employees of Evans and Super are different. There is not a single common employee. Super pays for the use of vehicles of the Evans. Therefore, the transport expenses are not common but distinct. (ii) The account books, registrains under the Employees State Insurance Act and assessment of tax, of Super are separate. (iii) Super receives no finances, loans or advance from Evans. (iv) The distributors who carried on business with Evans before Super stepped in, paid part of their collections to Evans; but Super does not pay anything to Evans. (v) The partners of Evans and Super are different. There is not a single common partner, 5. With the above background of facts a brief reference to the relevant provisions of law may be useful. Sub-section (3) of S.1 of the Act, makes the Act applicable to (a) every establishment which is a factory engaged in any industry specified in Schedule I and in which twenty or more persons are employed; and (b) any other establishment employing twenty or more persons or class of such establishments which the Central Government may, by notification in the Official. Gazette, specify in this behalf. This case falls under clause (b) of sub-section (3) of S.1 of the Act. It is "any other establishment . If it employs 20 of more employees, the Act applies. S.2(e) defines the expression "employer". Gazette, specify in this behalf. This case falls under clause (b) of sub-section (3) of S.1 of the Act. It is "any other establishment . If it employs 20 of more employees, the Act applies. S.2(e) defines the expression "employer". In relation to Evan and Super, the employer is "the person who or the authority which, has the ultimate control over the affairs of the establishment......". In order that the petitioner is liable as an employer, it must be shown that he has the ultimate control over the affairs not only of Evans but also of Super. Aware of the tendency of traders to evade liability under the Act by dividing the establishment under departments or branches, the Legislature, by S.2A declared that departments and branches of establishments whether situated in the same place or in different places, shall be treated as part of the same establishment. The jurisdiction to decide the dispute whether the two or more establishments constitute one establishment or whether the Act applies to an establishment belongs, under S.19A to the Central Government. In this case, no such reference was ever made to the Central Government. S.19-Ahas been substituted by S.20, 21 and 22 of Act No. 33 of 1988 with effect from the date to be notified. No date has so far been notified. 6. The subject of the petitioner's business is manufacture of cattle feed. It is "any other establishment" within the meaning of clause (b) of sub-section (3) of S.1. Originally, cattle feed industry was not one of the industries to which the Act was applicable. The Appendix I to the Act lists Non-Factory industries to which the Act has been made applicable under S.1(3) (b). Establishments engaged in "Cattle feed" industry appear at Sl. No. 47 in Appendix 1. "Cattle feed" industry was introduced in the Appendix by notification No. G.S.R. 644 (E) dated 7th December 1981. Therefore, the Act did not apply to establishments engaged in "Cattle feed" industry prior to 7th December 1981. 7. The employees of Super have been counted along , with the employees of Evans and a total figure of over 20 employees has been arrived at by the Respondents. Therefore they concluded that the petitioner is the employer of more than 20 employees. 8. 7. The employees of Super have been counted along , with the employees of Evans and a total figure of over 20 employees has been arrived at by the Respondents. Therefore they concluded that the petitioner is the employer of more than 20 employees. 8. In order to judge the correctness of the finding that the two establishments are, in reality, one, the principles of law on the subject need to be noted. The ultimate, control or authority over the employees of Evans and Super determines the question whether they constitute one establishment New Street Textiles v. Union of India 1975 KLT 426 .Varghese and others v. Provident Fund Inspector 1975 KLT 484 lays down another test. The employees should be connected with the work of the establishments. If the work done by the employees of Super, is extraneous to the work of the establishment of Evans then the workers of Super do not perform the duties connected with the business of Evans.Associated Cement Companies Ltd., Chaibasa, Cement Works, Jhinkpani v. Their Workmen AIR 1960 SC 56 and following it K. Ramunni v. The Regional Provident Fund Commissioner and another ILR 1974 (1) Ker. 11 lay down general tests to be applied in such cases. Where there are two establishments, branches or units, the true relationship between them must be such that they constitute one integrated whole. Facts of each case would determine the true relationship. The broad tests are unity of ownership, management and control, functional integrality, general unity and unity of employment. Whether all these tests are attracted or only some of them come into play would depend on the facts of individual cases.P. Madhavan Thampi and others v. Regional Provident Fund Commissioner, Kerala (1978) 2 LLJ 467 held that where the different units employed the same workers of the parent unit, the units used the same machinery, functioned under the supervision of the members of the same family, and the parent unit gave profuse credit facilities to the units, all the units constitute one establishment. 9. The question of unity of the two establishments must therefore be decided on the touch stone of its total functional unity. 9. The question of unity of the two establishments must therefore be decided on the touch stone of its total functional unity. The undisputed facts show that Evans and Super are distinct by reason of the absence of common employment, distinct registrations under the Employees' State Insurance Act and Tax Laws, absence of any financial assistance such as loans and totally distinct partners. Do these facts suggest that Evans and Super are one integrated whole? The only fact which raises suspicion that the two units may be one is that the business of Super is carried on from the same building as of Evans. But, then, Super has its office in a separate room in the same building for which rent is paid. While the vehicles of Evans are used for transporting goods to be supplied by Super, the latter pays for the use of the vehicles. In my opinion, these facts are not inconsistent with the, distinct identities of the two establishments. Two establishments can carry on business in the same building and yet possess distinct identities as business establishments. On a superficial view, the use of the vehicles of one establishment by another and the proximity of the offices and use of the same building appear to suggest commonness of purpose. But, then, Super pays for the use of the vehicles and use of the premises. These facts prove separate and distinct characters of the establishments. The features that make the two establishments distinct are separate account books, distinct employees, none of them being common, separate partners, none of being common, and indices such as independent registration under the Employees' State Insurance Act, Sales Tax Act and the Income Tax Act. The employees of Super do not perform any work for Evan. The fact that, the partners of the two establishments belong to the same family has been strongly highlighted, with the aid of the judgment in P. Madhavan Thampi and others v. Regional Provident Fund Commissioner, Kerala (1978) 2 LLJ 467. The mere fact that the partners belong to the same family may be a reason for close scrutiny of the claim that the two units constitute separate establishments but by itself it does not unite the two establishments. Different members of the same family can establish different business concerns. The mere fact that the partners belong to the same family may be a reason for close scrutiny of the claim that the two units constitute separate establishments but by itself it does not unite the two establishments. Different members of the same family can establish different business concerns. In the case of P. Madhavan Thampi (1978) 2 LLJ 467, the workers were common the units used the same machineries were supervised by the members of the same family and the parent unit provided abundant credit. In this case, there is total absence of such features. In my opinion, Evans and Super are distinct and separate establishments. They cannot be considered as one. 10. The respondents drew my attention to S.19A which empowers the Central Government to issue directions in regard to the matter in dispute. The respondents urged, on the basis of Patel Veneers (P) Ltd. v. Regional Provident Fund Commissioner ( 1988 (1) KLT 843 ) that S.19A provides adequate alternative remedy and this petition should not be entertained until the petitioner exhaust the remedy. I will assume that S.19A does provide such a remedy. But I do not consider it fair to drive the parties to seek the direction of the Central Government, after keeping this petition pending in this court, for five years. 11. For reasons stated in the foregoing paragraphs I allow this petition and make the following order: (i) The order No. KR/10933/Enf. VI (2)/89/5821, dated 28th February 1989 made by the Respondent No. 2 is quashed. (ii) The Respondents shall proceed to act on the basis that Evans Food Corporation and Super Traders are separate establishments for the purpose of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. No costs.