Hegde, J .
(1) The true scope of S. 1(3)(a) of the Employee's Provident Funds Act ( which we shall herein after refer to as the 'Act') comes up for consideration in this appeal.
(2) The fact are not in dispute in this case:
(3) The accused is the Proprietor of Chandiram Mysore Silk Mills in Bangalore City. He was running the Mills in question when the Act came into force and at that time he was employing more than 50 persons in his Mills. Therefore, he was required to contribute to the Employees' Provident Fund ( to be referred to as 'Fund' herein after) and he contributed to that Fund till 1-2-1956. Thereafter he failed to contribute to the Fund. In the present case, the charge, against him is that he failed to contribute to the fund from 1-6-1956 to 1-8-1956 and failed to submit necessary returns and therefore he is liable to be punished under Paragraph 76 (a) and (C) of the Employees' Provident Fund Scheme, 1952. The accused has not denied the fact that he had failed to contribute to the Fund, during the period mentioned in the charge.
(4) The charge of failure to submit the necessary returns appears to have not been pressed in the Court below, nor was it pressed in this court.
(5) The plea of the accused is that ever since 1-2-1956, he has been engaging less than fifty persons in his factory-- to be exact, in March 1956 he engaged 42 persons, in April 45 persons, in May 44 persons, in June 44 persons and in July 46 persons. The complainant admits these facts. But it is contended on his (complainant's) behalf that once the Act is made applicable is a factory, what ever number of employees may be employed thereafter, the owner of the factory continues to be liable to contribute to the Fund. Therefore, we have to see whether the liability of the accused continued even after the number of persons employed by him fell below fifty.
(6) Section 1(3)(a) reads:
'Subject to the provisions contained in S. 16 it (the Act) applies (a) to every establishment which is a factory engaged in any industry specified in Schedule I and which fifty or more persons are employed .......'
(7) For our present purpose S. 16 is not relevant. The only point we to consider is whether in the accused's factory 'fifty or more persons are employed'. Sri V. K . Govindarajulu, the learned counsel for the appellant contends that the words 'are employed' have reference to the state of things on the date when the Act was first made applicable to the factory in question, irrespective of what might have happened subsequently, where as accordingly to Sri Ullal, the learned counsel for the respondent, the liability of his client to contribute to the Fund, ceased the moment the number of persons employed by him fell below fifty.
The two expressions 'is a factory' and fifty or more persons are employed' found in S. 1(3)(a) are important for our purpose. In both places, the legislature has employed the present tense. If a grammatical construction is put on those words, it is clear that before a person could be called upon to contribute to the Fund, two requirements must be satisfied i.e. (i) there must exist a factory; and (ii) fifty or more persons should be employed in that factory. If any one of these conditions fail then the liability would cease. To get over the plain meanings of the word sum the concept of social justice is pressed into service and we are asked to interpret the provision in such a manner as to avoid mischief and advance the cause of the down-trodden.
Sri V. K. Govindarajulu contended that if we accept the grammatical construction, the employers may get round the Act and defeat its objective by reducing the number of persons employed. He says that it would be quite easy for the employers, atleast in marginal cases, to so adjust their work-load as to reduce the number of persons employed to less than fifty persons and thus deprive the workers the benefits of the Act. According to him we must get at the intention of the legislature by taking note of the avowed policy of the Government, the purpose behind the Act as well as its scheme. It is not the function of this Court to decide policy questions. Our primary duty is to apply the law. But in so applying the law, if we are faced with difficulties as regards true intention of the legislature then we have to proceed to interpret the provision according to well known rules. Rendering social justice is the function of the other organs of the State. The task is definitely that of the Legislature and we are quite sure that the ideas of social justice, their scope as well as the limitations to be placed on that concept must have been in the mind of the Parliament while enacting the statute in question.
Ordinarily we have to find out the intention of the Legislature from the language used. As mentioned above, if there are ambiguities, we have to call into aid well known canons interpretation . But if the language of the section is plain, as it appeals to us n this case, then no question of interpretation arises and we will be transgressing our frontiers if we alter the law in the guise of interpreting it. To our mind, it appeals to be clear that the Parliament stipulated the contended existence of two contribute to the Fund and if any one of those conditions disappear, necessarily the employer is absolved from the liability to contribute to the Fund.
If we accept Sri Govindarajulu's contention that the words 'are employed' refer to the date on which the Act was initially applied to the factory, the state interpretation has to be placed on the words 'is a factory'. If that is so, if a concern is once treated as a factory then it would continue to be a factory even if it subsequently closed down. In other words, the employer's liability to contribute the Fund would continue even if the closes down the factory an disbands the workers. Nothing so bad could have been intended by the parliament.
In Pamadi Subbarama Chetty v. Mirza Zewar Ali, AIR 1960 Mys 14, notified form of this very contention was negatived by his Lordship Hombe Gowda J. In that case, the employers were contributing to the Provident Fund. But some time thereafter there was dissolution of partnership, and the machinery in the factory was divided between the partners. One of the partners started a new concern. But that concern employed less than fifty persons. It was argued in that case that the liability to contribute to the Fund gets impressed on the machinery wherever it is taken . the Court quite naturally rejected that contention as having no basis either in fact or in law. The true effect of the finding in that case is the very factory which was in existence on the date of the initial application of the Act should continue that exist before the employer is required to contribute to the Fund ; if any reason that factory come to an end its liability also ceases. This decisions, though not directly in point for our present purpose, its ratio of immense assistance to us.
For the reasons already mentioned, the expression 'are employed' must be interpreted in the same manner as the expression, 'is a factory'. The conclusion arrived at by Homeber Gowda J. As well as our own finds support form the decision of the Punjab High Court in golden Silk Mills v. Central Provident Fund Commissioner, . Nulat J. Who wrote the leading judgment in that case observed as follows:
'The view that once the Employee's Provident Fund Act, 1952, applies to a particular factory it continues to apply even if the number of persons employed in the factory falls below fifty cannot be accepted as correct. The ordinary rule that as soon as conditions for the application of a statute cease to exist the statute itself ceases to apply. The intervention of the Act is not to burden small factories employing less than fifty persons with the liabilities imposed by the Act. It follows that the liability would cease as soon as a factory falls out of the category of factories employing fifty or more persons'.
(8) Sri Govindarajulu placed strong reliance on the decision of the Bombay High Court in State v. Hathiwala Textile Mills, : (1957)IILLJ202Bom . There is no doubt that this decision supports the appellant. The Punjab High Court in Golden Silk Mills case, dissented from the view taken by the Bombay High Court. With great respect to the learned Judges of the Bombay High Court , who decided that case, we are also unable to subscriber to the view taken by them for the reasons mentioned by Dulat J. In Golden Silk Mills case, , Futher, the very basis of that decision is now removed by the deletion of the words 'in the first instance' found in S. 1(3)(a) before its amendment in 1956, though in our opinion even the un amended section did not lend itself to the interpretation put down upon it by the Bombay High Court.
We are of the opinion that the words 'in the first instance' referred to the application of ht Act to all factories engaged in any industry specified in Schedule I in which fifty or more persons are employed, as distinguished from those to which it may be applied by the Government later. Those words had nothing to do with the conditions prescribed for the continued application of the Act . In Bombay case above referred the Court observed: (As summarised in the head-note),
'The contention that the statute being a penal statute the words 'are employed' in S. 1(3) should be strictly construed and a construction favorable to the employee should be adopted cannot be accepted. It must be remembered in the first instance, that the Employees' Provident Fund Act is a social legislation meant for the benefit of workers. Penal status like other status must be undoubtedly be construed according to their plain provision. But if it now well recognized that its the paramount duty of the Courts to put upon the language of the Legislature honestly and faithfully its plain and rational meaning so as to promote the object of the Legislature. To hold that the Act would cease to apply when ever the factory employed less than fifty persons would expose the workers to constant peril of losing the benefits of the Act and leave a wide scope follow revision which the Court must try to prevent.'
The principles above enunciated do not admit of any controversy. But the question of suppressing evil and advancing the cause in view arises only if the words employed are ambiguous. The principles behind S. 1(3)(a) are clearly discernible. The contribution is asked for from the proprietors of factories of which employ fifty more persons. Evidently the legislature wanted to impose that liability only on factories of certain size, the demarcating line being the capacity to employ fifty or more persons, the assumption being that an employer in his own interest would work his factory to the maximum capacity. We do not share the apprehensions about the employers' properties to harm the interest of the employees. In the first place, in most cases at least, in trying to harm the interests of his workers, he will be having his own interest.
That apart, enough safeguard has been provided in the Act to protect the interest of the workers. It is open to the Government to bring any factory within the scope of the Act after going through certain preliminaries. That provision amply protects the workers. The question whether an fraud had been practised to defeat the purposes of the Act is a question of fact. If the court comes to the conclusion on the material before it that by dishonest means the employers, are trying to over-reach the employees it may render justice between the parties by ignoring the change brought about as was done in J. G. Vakharia v. Regional Provident Fund Commr. Bombay, Special C. A. 829 of 1956 on the file of the Bombay High Court. But we wish to express no opinion on that point at present as we have no occasion to consider that aspect in all its details.
(9) Viewed from any angle, we do not think that there is any justification for holding the respondent liable for the contribution in question.
(10) In view of our above finding, it is not necessary for us to go into the remaining two grounds on which the learned Magistrate dismissed the complaint, though in passing we would like to say that the learned Magistrate was not right in opining that there is any need to establish mens rea before a person can be found guilty of contravening the provisions of the Act. The question of mens rea has no relevancy when contraventions of statues of fiscal nature are complained of. Moreover the intention in this case is obvious if the contravention is otherwise illegal. The question of delay in instituting the complaint is of no significance on the facts of this case. In the result, this appeal fails and the same is dismissed.
(11) Appeal dismissed.