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Gulshan Khandsari Udyog Vs. Union of India (Uoi), New Delhi and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 2174 of 1964
Judge
Reported inAIR1968All75; [1968(17)FLR172]; (1969)IILLJ477All
ActsConstitution of India - Articles 77 and 226; Employees' Provident Funds Act, 1952 - Sections 1, 5, 17 and 19A; Employees' Provident Funds (Amendment) Act, 1956
AppellantGulshan Khandsari Udyog
RespondentUnion of India (Uoi), New Delhi and anr.
Appellant AdvocateB.D. Mandhyan, Adv.
Respondent AdvocateT.N. Sapru, Adv.
DispositionPetition dismissed
Excerpt:
.....- entry in schedule - sections 19(a) of employees provident fund act, 1952 - opinion of central government - ' khandsari' is engaged in a scheduled industry under entry 'sugar' - is final and not to be interfered under article 226. (ii) civil - sections 1, 5 and 17 of employees provident fund act, 1952 - a fund scheme framed under the act - an industrial unit producing khandsari was having more than nineteen workers - employer sought exemption on the ground of provision made by him for certain amenities - held, whether a certain workman comes under the scheme - employer needs to raise his grievance before of appropriate government not before the court - petition dismissed. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13,..........mean. 'any form of sugar containing more than 90 per cent sucrose, but does not include khandsari sugar sugar candy, bura sugar and confectionery.' this control order does not help the petitioner. but for this specific provision khandsari would be within the meaning of the term 'sugar'. actually the order used the words 'khandsari sugar' and expressly excluded it from being within the ambit of the control order. the respondents have cited the sugar control order, 1955 which defines sugar so as to include khandsari sugar. similarly the sugar control order 1960, defines 'sugar' to include khandsari sugar. 11. these and other enactments do not furnish any true guide for determining the ambit of the entry in the first schedule. these enactments were made for different purposes. they are.....
Judgment:
ORDER

Satish Chandra, J.

1. The main point raised by this and the companion writ petition is whether Khandsari is sugar within the meaning of the first schedule to the Employees' Provident Funds Act, 1952.

2. The petitioner is a partnership concern and runs a Khandsari unit in the district of Muzaffarnagar. It manufactures Khandsari along with Gur and rab. The petitioner unit was established in 1958, under a licence granted under the Factories Act to employ 100 labourers in its unit. In 1952 the Employees' Provident Funds Act, 1952 was enacted. The Act was a welfare legislation and was intended to provide for the institution of the provident fund for the employees of factories and other establishments.

It applied to every establishment which is a factory engaged in any industry specified in Schedule 1 and in which 20 or more persons are employed.

Section 4 empowered the Central Government to add to the first schedule any other industry in respect of the employees whereof it is of opinion that a provident fund scheme should be framed under this Act, and thereupon the industry (sic) added shall be deemed to be an industry specified in Schedule 1 for the purposes of this Act. Under Section 5 the Central Government is to frame a scheme called the Employees' Provident Funds Scheme for the establishment of provident fund under the Act for the employees. The scheme is to provide for the class of employees who shall join the fund and the conditions for exemption, the time and the manner in which the contribution shall be made to the fund by the employers, the payment by the employers of such sums of money as is necessary to meet the cost of administering the fund and for their recovery etc. Accordingly the Central Government framed the Employees' Provident Fund Scheme, 1952. Section 19A gave power to the Central Government to remove difficulties, and provided that if any difficulty arises In giving effect to the provisions of this Act, and in particular if any doubt arises as to,

(1) whether an establishment which is a factory is engaged in any industry specified in Schedule 1.

(2) .....

(3) the number of persons employed in an establishment;

(4) .....

(5) .....

The Central Government may by order make such provision or give such direction not inconsistent with the provisions of the Act as appeared to it to be necessary or expedient for the removal of the doubt or the difficulty, and the order of the Central Government in such cases shall be final.

3. In 1956 the Central Government by notification added sugar in Schedule 1. Since then sugar was one of the industries to which the Employees' Provident Fund Scheme became applicable. The Regional Provident Fund Commissioner, U. P. called upon the petitioner firm to apply and implement the provident fund scheme for its employees. The Muzaffarnagar Gur and Khandsari Udyog association took up the matter and made representation to the Central Government. It submitted that Khan-sari units are not engaged in the manufacture of sugar and the Employees' Provident Funds Act will not be attracted to the Khandsari industry. It mentioned various points in support of its views. It prayed that the whole matter be considered and reviewed in view of the grounds mentioned and enforcement of the provident fund scheme against the Khandsari unit be withdrawn. It also prayed that pending the Government decision the application and implementation of the scheme be stayed. The Regional Provident Fund Commissioner on 23rd November, 1963 informed the petitioner firm that the Government of India has decided that the scheme is applicable to factories engaged in the manufacture of Khandsari also under the scheduled head 'sugar'. It requested the petitioner to implement the provisions of the scheme. The Commissioner sent reminder to the petitioner on April 13, 1964. Thereupon the petitioner came to this court for an adjudication of the question that Khandsari is not sugar industry.

4. Since 1956 the Employees' Provident Funds Act applies to Sugar Industries. The question is whether Khandsari is included in sugar industries. When the Muzaffarna-gar Gur and Khandsari Udyog Association represented that Khandsari units are not included in the sugar industry, the Regional Provident Fund Commissioner referred the matter to the Central Government for clarification. The Central Government decided that the Act applies to factories engaged in the manufacture of Khandsari under the schedule head of sugar. In due course, the Regional Provident Fund Commissioner informed the Association of the decision reached by the Central Government. This decision of the Central Government was presumably under Section 19-A of the Act. The Government also informed the Association to that effect.

This communication of the Government was challenged on the ground that it was not an order of the Central Government because it was not duly authenticated as required by the Constitution and was not issued in the name of the President of India. This communication of the Government has not been sought to be quashed in the present petition The communication is only of the decision reached by the Government. That by itself is not the order. There may have been an order under S 19-A of the Act of which a gist was communicated to the Association. Such a communication need not be in the name of the President or authenticated in the manner required by the Constitution. It need not state that it has been issued under Section 19-A of this Act. It is clear that the Central Government is of the opinion that the Khandsari is within the schedule head of sugar The question is of interpreting the entry in the first schedule which has been incorporated by the Central Government. Section 19-A empowers the Central Government to make such provision or give such direction as appear to it to be necessary in order to remove a doubt or difficulty. On the question whether an establishment which is a factory is engaged in any industry specified in schedule T the legislature appointed the Central Government as the authority whose opinion on such matters will be final. The opinion expressed by the Central Government that Khandsari is included in the schedule head of sugar is according to the mandate of the legislature final. The Employees' Provident Funds Act is designed to provide provident fund for the employees in factories. The Central Government has been given the power to extend its appplication to various factories.

5. In Collector of Customs v. K. Ganga Setty, AIR 1963 SC 1319 question was as to the validity of an order of custom authorities interpreting the provisions of the entries in the tariff schedule as regards the imposition of duties. The Supreme Court ruled that it was primarily for the Import Control Authorities to determine the head or entry in tariff schedule under which any particular commodity fell; but if in doing so, these authorities adopted a construction which no reasonable person could adopt, i.e. if the construction was perverse, then it was a case in which the court was competent to interfere. In other words, if there were two constructions which an entry could reasonably bear, and one of them which was in favour of the revenue was adopted, the court has no jurisdiction to interfere merely because the other interpretation in favour of the subject appealed to the court as the better one to adopt.

6. The case for the respondent authori-ties is all the more stronger in the present case, because the legislature has specifically appointed the Central Government for determining such a question. The area of adjudi-cation in a court under Article 226 is in such circumstances still narrower.

7. In the Regional Provident Funds Commr. Punjab v. Shibu Metal Works, AIR 1965 SC 1076 the Supreme Court ruled that the entries in the schedule occurs in an Act which is intended to serve a beneficent purpose and if two views are reasonably possible, the courts should prefer the view which helps the achievement of the object If the words used in the entry are capablel of a narrow or broad construction, each construction being reasonably possible and it appears that the broad construction would help the furtherance of the object, then it would be necessary to prefer the said construction. The construction adopted by the respondents that Khandsari is included in the entry of sugar does advance the object of the Act. and should, therefore, be preferred unless it is established to be perverse,

8. The Supreme Court also observed that the first clause of Schedule I refers to any industry engaged in the manufacture of anv of the products enumerated by the different entries in Schedule I. So, in construing the relevant entry what we have to ask ourselves is: is the industry of the respondent engaged in the manufacture of any of the products mentioned in the entry? It is the character of the industrial activity carried on by the respondent's undertaking that falls to be determined, and the question is not so much as to what is the product produced as what is the nature of the activity of the respondent's undertaking. The Court further observed that if the entry had been used or introduced in the material provision of the Sales Tax the decision as to whether a particular product is liable to pay the tax would depend upon the consideration as to whether the product in question falls within the scope of the said Act and in that context interpretation will naturally concentrate on the character and nature of the products in question. That is not so under the Employees' Provident Funds Act. On this ground the cases under the U. P. Sales Tax Act cited by the learned counsel for the petitioner would stand distinguished. They are all under the Sales Tax Act, Ramavatar Budhaiprasad v Asst. Sales Tax Officer Akola, 12 STC 286=(AIR 1961 SC 1325); State of Andhra Pradesh v. Kajjam Rama-chandraih Gari Anantaiah. 12 STC 795 (Andh. Pra.) and Commissioner of Sales Tax Madhya Pradesh, Indore v. Bakhat Rai and Co., (1966) 18 STC 285 (Madh Pra).

9. The question, therefore, has to be approached from the point of view as to what is the nature of the industrial activity carried on by the petitioner's unit and whether it is akin to the activity carried on by the industry of sugar. According to the Encyclopaedia Britannica, Fourteenth Edition, Vol. 21, page 523 'Sugar' is a name which applies to over 100 substances having distinctive properties and scientific names for example, sucrose, glucose, fructose, lactose, maltose. Of the numerous sugars which occur in plants, sucrose is the most abundant and has been extracted commercially from sugarcane. sugar beet maple trees, Indian maize, sorghum grass and several species of palm. In India sugar is made by (1) Vacuum Pan Process or (2) Open Pan Process. Khand-sari is Sugar made bv open pan process. The crystalline sugar is made by vacuum pan process. Thus, according to the report of the Central Wage Board for the Sugar Industries (1960) (page 4, oaragraph 18) Khandsari is one kind of sugar that is produced by open pan process. It is therefore, apparent that in common commercial terms Khandsari is treated as sugar The industrial activity of khandsari is of the same character as of crystalline sugar. Khandsari is also one of the various kinds of sugar, like burn sugar, Beetroot sugar, cane sugar etc.

10. The main burden of the petitioner has been to show that in various enactments and Orders like Sugar Control Act, Sugar Special Excise Duty Act etc Khandsari is excluded from the definition of sugar, for instance in the Sugar (Movement Control) Order 1959. sugar is defined to mean.

'any form of sugar containing more than 90 per cent Sucrose, but does not include khandsari sugar sugar candy, bura sugar and confectionery.'

This Control Order does not help the petitioner. But for this specific provision Khandsari would be within the meaning of the term 'sugar'. Actually the order used the words 'Khandsari Sugar' and expressly excluded it from being within the ambit of the Control Order. The respondents have cited the Sugar Control Order, 1955 which defines sugar so as to include Khandsari sugar. Similarly the Sugar Control Order 1960, defines 'Sugar' to include Khandsari sugar.

11. These and other enactments do not furnish any true guide for determining the ambit of the entry in the first schedule. These enactments were made for different purposes. They are both ways. They are, in my opinion, not helpful.

12. It was then urged, that the finished product of Khandsari is inferior to the product of sugar factory produced by the vacuum pan process, This is an irrelevant circumstance The nature of the Industrial activity is similar and hence the Industry is the same, whether the product is produced by the open pan process or the vacuum pan process. Similarly the fact that the Khandsari industry is a small industry is also not relevant. In my opinion, the respondents did not take a perverse view when they held that Khandsari industry is included within the schedule head of sugar and the Act is applicable to it.

13. It was also urged that even if the Act applies to the Khandsari industries, the scheme was not applicable to the petitioner's unit because it was not a seasonal factory as defined therein and because the petitioner's unit does not employ the kind of employees mentioned in paragraph 26 of the scheme as the classes of employees entitled and required to join fund. The respondents have rightly pointed out that the petitioners have not raised this question before the Regional Commissioner who is entitled to decide it under paragraph 26-B of the Scheme. Under this paragraph if any question arises whether an employee is entitled or required to become or continue as a member, or as regards the date from which he is so entitled or required to become a member, the decision thereon of the Regional Commissioner shall be final. The petitioner ought to have raised the dispute before the Regional Commissioner for decision. He not having done so the expression of grievance on this score in this Court is premature. It has been stated in paragraph 14 (c) of the counter-affidavit that the Act and scheme applied only to those employees who fulfilled the requirements prescribed under the Act and the scheme and no representation has so far been received from the petitioner that there were no employees in respect of whom the petitioners were liable to comply with the provisions of the Act and the Scheme. The petitioner has not yet furnished to the respondents the names of the employees and the number of employees not covered under the scheme and hence this matter has not yet been decided by the authorities. Similarly the petitioner has not yet raised any question before the Regional Commissioner that its workmen are not employees within the meaning of the Act. The respondents have rightly pointed out that Inasmuch as the petitioner's unit is employ-Ing more than 19 workmen whether temporary, casual, permanent, or contract labours, it is liable to enforce the Act and the scheme in question and whether a certain workman is, or is not covered under the Scheme has yet to be decided if representation is made by the employer in this regard.

14. It has been urged that the petitioner provides manifold amenities like free drink of iuice, free substantial quantity of Gur, provision for free fuel clothes etc. It is urged that these amenities taken as a whole are in no case less favourable than the benefits to be accrued under the Provident Funds Act and for this reason the petitioner ought to have been exempted under Section 17 of the Act. Under Section 17 the appropriate Government has been authorised to exempt any establishment or factory from the operation of all or any of the provisions of the scheme The petitioner ought to have raised his grievance before the appropriate government rather than before this Court.

15. In the result, there is no merit inthis petition. It is accordingly dismissed withcosts.


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