D.S. Mathur, J.
1. This is a petition under Article 226 of the Constitution of India by The Delhi Cloth and General Mills Company Ltd., Delhi (to be referred hereinafter as the petitioner or the petitioner Mill) for the issue of a writ of mandamus to direct the respondent, namely, the Regional Provident Fund Commissioner, not to take any steps under the Employees' Provident Funds Act, 1952 (to be referred hereinafter as the Act) for enforcing the Employees' Provident Funds Scheme (to be referred hereinafter as the Scheme) in respect of the petitioner's distillery and confectionery at Daurala; and also to direct the respondent to withdraw his letter dated 9-3-1957, Annexure 'B' to the affidavit.
2. The petitioner is a Company registered under the Indian Companies Act, and it owns a number of factories including textile mills, sugar factories, distillery and confectionery. In village Daurala of district Meerut, there is a sugar factory belonging to the petitioner known as 'Daurala Sugar Works', The petitioner also has a distillery and a confectionery close to 'Daurala Sugar Works'. Toffees, hard-boiled sweets, soft-centred sweets and sugar cubes are manufactured in the confectionery.
The petitioner's case is that the three works are situate in premises of their own and they constitute different factories. The respondent, on the other hand, asserts that they are situate within the same premises, are bounded by a common boundary wall and constitute one composite factory. The provisions of the Act were applied to industries engaged in the manufacture of sugar under Notification No. S. R. O. 1566 dated 4-7-11956, but coming into effect from 31-7-1956.
Mineral oil refining industry was included in Schedule I later and the Act became applicable to such an industry with effect from 31-1-1957. The dispute that exists between the parties is whether for purposes of the Act all the three industries, namely, the manufacture of sugar, confectionery and distillery, shall constitute One factory, or they are in the eye of law three different factories.
If the three constitute one factory, the provisions of the Act and also the Scheme shall apply to the employees of all the three, that is of the sugar factory, distillery and confectionery. Butif the sugar factory constitutes a distinct factory and the others are in the eye of law factories by themselves, the Act and also the Scheme shall not automatically apply to these two factories unless they are covered or were later on included in Schedule I of the Act. In other words, the point for consideration is what is the unit of factory for purposes of the Act and the Scheme.
3. The petitioner had given certain data or the sugar factory, distillery and confectionery in its petition and also the affidavit and when these facts were controverted in the counter-affidavit and additional data was then supplied, the petitioner filed a rejoinder affidavit. During the hearing of the petition it became necessary to obtain further information from the petitioner with regard to the location of the sugar factory, distillery and confectionery, and it was at that stage that additional information was furnished by the parties. In view of these affidavits there does not exist any material controversy on the facts of the case, and these facts I shall reproduce in this judgment later while considering whether the three constitute one unit of factory for purposes of the Act and the Scheme, or diey constitute different factories.
4. The Act was amended from time to time. Prior to the amendment made under the Employees' Provident Funds (Amendment) Act, 1956, the unit for purposes of the application of the Act was considered to be a factory, but as a result of the amendment which came into force from 28-12-1956, the unit in one way became an establishment, though it was by implication provided that what was meant by establishment was a factory.
The term 'establishment' has not been defined in the Act, and consequently, it shall have to be given its ordinary meaning with reference to the definition of the term 'factory'. It may here be noted diat in other similar enactments, for example, the Industrial Disputes Act, 1947, the industrial establishment has been linked with a factory, mine or plantation. Factory has been defined in S. 2(g) of the Act to mean any premises, including the precincts thereof, in any part of which a manufacturing process is being carried on or is ordinarily so carried on, whether with the aid of power or without the aid of power.
The difficulty in the interpretation of the definition arises while determining whether a part of the premises, which may be complete by itself, should be regarded as one premises or the whole should be treated as the unit For example, on a big stretch of land with a common boundary wall, diere may be not one building but many with land appurtenant thereto. If all the buildings are occupied by the same person or by the same family for the same purpose, all the buildings including the land lying within the boundary wall shall constitute one premises.
It is not necessary that there must be a boundary wall to limit the extent of the land. But if the buildings are occupied by different persons, not necessarily for the same purpose, the premises as a whole shall constitute many premises. Similarly, if more than one factory lie within the same premises, they shall constitute one factory or more depending upon the facts of the case. In thepresent case, the sugar factory, distillery and confectionery lie in different areas though within the same boundary wall.
The question naturally arises whether all the three industries (OR units) shall constitute a single factory for purposes of the Act and the Scheme, or they can be treated as three factories. According to the petitioner, the three constitute three factories, while according to the respondent, only one. It was in connection with Section 25-C of the Industrial Disputes Act. 1947, that the Supreme Court considered in Civil Appeal No. 87 of 1958: (AIR 1960 SC 56), Associated Cement Co., Ltd. Jhinkapani v. Their Workmen, (decided on September 11, 1959), what was the test which could be made the basis of determining what was one establishment.
The principles laid down in this case canusefully be applied to the present case, all the more when it was observed that there can be many factories within one factory and whether each department should be treated as one factory, had to be determined on consideration of the object of the enactment and if necessary, all other similar enactments. It will thus be useful and will avoid unnecessary discussion if the law as laid down bythe Supreme Court and the various observations made in connection thereto are reproduced in this judgment before commenting upon the facts of the case.
5. The definition of the term 'industrial establishment', for purposes of Sections 25-A, 25-C, 25-D and 25-E of the Industrial Disputes Act, 1947, is contained in the Explanation to Section 25-A tomean a factory as defined in the Factories Act, 1948, or a mine as defined in the Mines Act, 1952, or a plantation as defined in the Plantations Labour Act, 1951.
It was observed that 'the' Explanation while stating what undertakings or enterprises come within the expression 'Industrial Establishment' did not necessarily lay down the test of one establishment also'. It was eventually held in the abovecase that a factory and a mine together could for purposes of Section 25-C of the Industrial Disputes Act constitute one establishment. With regard to the existence of a factory within a bigger factory it was observed:
'Let us take for example, a factory which has different departments in which manufacturing processes are carried on with the aid of power. Each department, if it employs ten or more workmen, is a factory within the meaning of Clause (m) of Section 2, of the Factories Act, 1948; so is the entire factory where 1000 workmen, may be employed. The Explanation merely states that an undertaking of the nature of a factory as defined in Clause (m) of section 2 of the Factories Act, 1948, is an industrial establishment. It has no bearing on the question If in the example taken the factory 'as a whole or each department thereof should be treated as one establishment. That question must be determined on other considerations, because the Explanation does not deal with the question of one establishment.'
It was later on observed that the Explanation didnot lay down any test for determining the abovequestion.
6. Their Lordships of the Supreme Court! further observed in this connection as below:
'The Act not having prescribed any specific tests for determining what is 'one establishment', we must fall back on such considerations as the ordinary industrial Or business sense determine the unity of an industrial establishment, having regard no doubt to the schemes and object of the Act and other relevant provisions of the Mines Act, 1952, or the Factories Act, 1948, What then is 'one establishment' in the , ordinary industrial or business sense? The question of unity or oneness presents difficulties when the industrial establishment consists of parts, units, departments, branches etc. If it is strictly unitary in the sense of having one location and one unit only, there is little difficulty in saying that it is one establishment. Where, however, the industrial undertaking has parts, branches, departments, units etc., with different locations, near or distant, the question arises what tests should be applied for determining what constitutes 'one establishment'. Several tests were referred to in the course of arguments before us, such as, geographical proximity, unity of ownership, management and control, unity of employment and conditions of service, functional integrality, general unity of purpose etc., ..............It is, perhaps, impossible to lay down any one test as an absolute and invariable test for all cases. The real purpose of these tests is to find out the true relation between the parts, branches, units, etc. If in their true relation they constitute one integrated whole, we say that the establishment is one, if on the contrary they do not constitute one integrated whole, each unit is then a separate unit How the relation between the units will be judged must depend on the facts proved, having regard to the scheme and object of the Statute ....;.......... Thus, in one case the unityof ownership, management and control may be the important test, in another case 'functional integrality or general unity may be the important test; and in still another case, the important test may be the unity of employment.'
In the latter part of the judgment, it was further observed as below:
'We must have regard to the provisions of thestatute under which the question falls to be considered; if the statute itself says what is one establishment, then there is no difficulty. If the statute does not, however, say what constitutes oneestablishment, then the casual tests have to be applied to determine the true relation between theparts, branches etc., namely, whether they constitute one integrated whole or not. No particulartest can be adopted as an absolute test in oil casesof this type and the word 'establishment' is notto be given the sweeping definition of one organisation of which it is capable, but rather is to beconstrued in the ordinary business or commercialsense.'
7. These observations of the Supreme Court can be summarised in these words: if the statute by itself lays down what is one establishment or factory for purposes of that enactment, that would, without any difficulty, be the basis of determination of one establishment or factory; but if no such definition is contained in the statute, it would be necessary to determine the object of the enactment and then to apply the various tests to find out not only as to which test should be considered to be a material one, but which is on the basis of that test or the various tests as a whole, the whole or a part is to be treated as one establishment or factory.
8. As in the Industrial Disputes Act, it has not been laid down in the Act nor in the Scheme what shall be deemed to be one establishment or factory, and the term 'factory' has been defined not with the idea to lay down what shall be one factory for purposes of the Act but to indicate what is generally meant by this term. In other words, the Legislature has not laid down in the Act what is one establishment or factory.
9. The object of the Legislature in enacting the present Act, namely, the Employees Provident Funds Act, 1952, is apparent not only from the preamble but also from its various provisions. It has been laid down that the Act was to provide for the institution of provident funds for employees in factories and other establishments. A similar provision is contained in Section 5 onwards of the Act.
In other words, the object of the Act is that all the employees of an establishment or factory engaged in any industry specified in Schedule I, or industries to which the provisions of the Act are applicable, should make a provision of provident funds. A Scheme is duly prepared under the provisions of the Act and it is in accordance with the Scheme that the employers have to make contributor and meet other charges. What is necessary is that none of the employees as defined in the Act should be deprived of the benefit of provident funds, if admissible under the Act and the Scheme.
10. 'Employee' has been defined in Section 2(f) of the Act to mean any person who is employed for wages in any kind of work, manual or otherwise, In or in connection with the work of a factory (after the amendment of the Act an establishment), and who gets his wages directly or indirectly from the employer, and includes any person employed by or through a contractor in or in connection with the work of the factory Or establishment.
'Employees' will thus include not only those persons who actually manufacture goods, but also those employed in the office of the factory or establishment and those who do any other work for example, watch and ward in connection thereto. Consequently, the minimum unit of factory or establishment shall be one which is complete by itself in the above respect.
11. If only one kind of goods is manufactured at one place, the whole shall constitute one factory or establishment and such factory or establishment would be engaged in only one industry. This would be the case of one establishment or factory and shall be governed by the Act and the Scheme if that industry is included in Schedule I of the Act and the provisions of the Act are applicable to it. But if the industrial undertaking manufactures goods or articles of more than one kind, as in the present case sugar, power alcohol and confectionery, the three shall constitute three establishments or factories if they are from the point of view of employment, as indicated above, complete units by themselves.
If it appears that sugar factory employs staff which works for the factory only, and not for the confectionery or distillery, and the sugar factory has its own arrangement of watch and ward, and its own employees for doing office work, the sugar factory shall for purposes of the Act be one unit and the other two, namely, distillery and confectionery, shall not, for purposes of the Act, be a part of the sugar factory.
But if it is found that some of the employee are working not only for the sugar factory but also for the distillery, and confectionery, 'one establishment or factory shall be a larger unit. In other words, if the same staff, may be a few, work for all the three, namely, the sugar factory, distillery and confectionery, the unit i.e., one establishment or factory, shall include all the three and the three shall be its departments. Consequently, the important test for determination of one establishment or factory for purposes of the Act shall be, as one may call, the unity of employment.
12. I shall now take up the various tests laid down for determination of one establishment or factory. One of the tests is unity of ownership, and the other is unity of control and management, supervision and finance. Distinct factories situate at great distances, some times in different States, may be owned by the same Company and can be managed, controlled and financed by the same body; for example, in the present case, Delhi Cloth and General Mills Company Limited owns companies situate not only in Daurala but also at other places.
One of their undertakings is in Delhi, The various undertakings owned by the petitioner are managed by one and the same Company, namely, Bharat Ram and Charat Ram and Company Private Ltd., as managing agents. When the same Company owns many factories situate at distant places, the unity of ownership cannot be made the basis of the application of the provisions of the Act. On similar grounds, the unity of management and control, supervision and finance cannot be of much help.
Geographical proximity is one of the pertinent questions, but not necessarily the sole test for determination of one establishment or factory for purposes of the Act. For the sake of convenience and proper supervision the management may decide to locate all the factories at one place close to each other, at the same time taking precaution that all the units are complete by themselves and are not interdependent and the only connecting link between the various units may be supervision by very senior officers who are not covered by the provisions of the various Labour laws, laws which are ordinarily applicable to Junior employees.
In such circumstances, the various units though located near each other shall be treated as. distinct units (i.e.. factories or establishments). But, if these are inter-dependent, they would for certain purposes be distinct units and for other purpose,' a composite unit. For purposes of the enforcement of the Act, the general unity of purpose and also the functional integrality would not be a material test.
It can be that one unit may be dependent upon another for the supply of materials, or may otherwise, be inter-dependent, but if the employees of an unit governed by the Act and the Scheme are not working for and have nothing to do with the other unit, it would be wrong to hold that, for purposes of the Act also, the various units cannot be treated as such.
A casual reference may also be made to the test of unity of conditions of service. In no establishment will there be employees covered by similar conditions of service rules. The only other test laid down by the Supreme Court is unity of employment, that is, for purposes of employment in or in connection with the factory or establishment they are all one.
13. With these general observations, the matter may be considered in the light of the facts of the present case. The petitioner's case is that the sugar factory, distillery and confectionery are located in distinct premises. This assertion appears to be partially incorrect. The petitioner gave further details in the Supplementary rejoinder affidavit from which it appears that there is no intercommunication between the sugar factory and the confectionery.
There is inter-connection between the sugar factory and the distillery, but people cannot freely enter the distillery in view of the Excise Rules. However, all the three branches are so placed that they are bounded by a common boundary wall. The sugar factory, confectionery and distillery so placed can form one composite unit or constitute three distinct units depending upon other facts material for purposes of the Act.
From the affidavits on record, it appears that the distillery purchases mollases from other sugar factories also. The respondent did not admit this assertion, but in the rejoinder affidavit the petitioner has given facts and figures to show fiat 75 p.c. mollases are purchased by the distillery from other sugar factories. The distillery cannot thus be said to be completely dependent upon the sugar factory owned by the petitioner, but the source from which raw materials are obtained cannot, for purposes of the Act, be treated as an important test for determination of one factory or establishment.
At this place, it may be mentioned that the confectionery appears to be completely dependent upon the sugar factory. The petitioner is silent on this point, and it can be presumed, that the confectionery gets all the sugar from the sugar factory aS already indicated above, functional integrality is not the sole determining test in view of the specific object of the present enactment. Confectionery can, however, on another ground be deemed to be governed by the provisions of the Act to which I shall make a reference later.
14. The wage structure and terms and conditions of service of persons employed in sugar factory, distillery and confectionery are different and such employees are paid bonus at varying rates. The petitioner says that no bonus was paid to confectionery employees and more bonus was paid to the distillery employees than to employees of the sugar factory. As already mentioned above,the conditions of service and also the salary and bonus payable to employees cannot be considered to be p good criterion in a case of the present nature for determination of one establishment or factory.
The petitioner originally mentioned that the staff employed in the three units, namely, the sugar factory, confectionery and the distillery were separate, but in the rejoinder affidavit it had to-admit that unskilled labour was at occasions transferred from one to the other after striking off the name from one muster-roll and entering it on the other. The transferability of labour cannot be the conclusive factor in determining what is one establishment or factory, but this would be a factor which shall have to be kept in mind while laying down whether in the circumstances of the present case all the three should be treated as one composite unit or three units.
15. The maintenance of accounts cannot also be of much help. The petitioner says that separate profit and loss account is maintained for the three units, namely, sugar factory, distillery and confectionery. Many efficient concerns maintain, separate profit and loss accounts for each department to ensure that there is no slackness in any department and all the departments run on profit and do not suffer any loss. Maintenance of separate profit and loss accounts for each department assists the management in exercising proper control and supervision over the departments. The maintenance of separate accounts cannot, therefore, be taken into consideration in recording a finding on the point in issue.
16. Another factor which shall go against the petitioner is that the sugar factory, distillery and confectionery were registered under the Factories Act under one licence as one unit. This would be only one of the factors to- be taken into consideration and cannot, in my opinion, be treated as a conclusive test. As laid down by the Supreme Court a factory may be one factory or establishment for purposes of a statute and not for another.
Consequently, one factory or establishment for purposes of the Factories Act will not necessarily be a single unit for purposes of other enactments. One factory or establishment under the Factorial Act may under another enactment amount to two or more distinct factories, or that factory or establishment may be a part of a bigger factory or establishment for purposes of another enactment.
17. Now we come to the labour actually employed in the three undertakings of the petitioner at Daurala. It is admitted by the petitioner that there is a common general office, common time office, common general stores and a common repair workshop for all the three units, namely, sugar factory, distillery and confectionery. What the petitioner has added, in this connection is that the general office looks after the correspondence, accounts, produce, sales etc., on behalf of the Company; the time office looks after the work of the implementation of the Factories Act; and General Store are stores belonging to the Company in which lubricants, spare parts etc., are stored.
It would thus be clear that many employees employed in the general office, time office, store and workshop, work not only for the sugar factorybut also for the distillery and confectionery. Theseemployees are thus employed in connection withthe work of all the three units, and for purposesof the Act they shall be employees of all thethree It is not alleged on behalf of the petitioner that a few clerks of the general office, time office, stores and workshop, work for the sugar factory, another set for the distillery and the third for the confectionery.
In other words, there are many common employees for sugar factory, distillery and confectionery. When the same persons work for all the three, they shall be deemed to be employed in connection with the work of all. This factor is, in my opinion, of the greatest importance and willshow that, as far as the employees are concerned, sugar factory is not a complete and self-sufficient unit. From the point of view of the employees, they would be all the three which would form one complete unit.
18. To sum up, the object of the Act is to make a provision of provident funds for employees employed in or in connection with the workof a factory Or establishment engaged in an industry detailed in Schedule I to the Act, a factory or establishment in which 50 or more persons are employed. What is necessary to safeguard is that noemployee employed in or in connection with the work of the factory or establishment should be deprived of such a benefit.
When there are many employees who work not only for one unit or section, but for othersalso, they will be deprived of the benefits of the Act if the unit or section is treated as the basis of one factory or establishment. Consequently, for purposes of the Act, one factory or establishment shall be that unit of employees who arecomplete by themselves and who do not work for any other unit or section beyond the factory or establishment so determined.
In the present case, there are many employees who work for all the three units, namely, sugar factory, distillery and confectionery, and, therefore for purposes of the Act, all the three shall constitute one composite unit, i.e., one establishment or factory, and the provisions of the Act and the Scheme shall apply to the employees of all the three, and not only of the sugar factory.
19. In the end, it may be observed that the confectionery shall, on other grounds also, be treated as an unit governed by the provisions of the Act. Schedule I of the Act lays down that the provisions of the Act shall be applicable to any industry engaged in the manufacture of any of the articles detailed in the Schedule. Sugar is one of them.
The term 'manufacture' has been defined in Section 2(i)(a) of the Act to mean making, altering, ornamenting, finishing or otherwise treating or adapting any article or substance with a view to itsuse, sale, transport, delivery or disposal. Sugar cubes ate made of sugar and they are an altered form of sugar, Consequently,' for purposes of theAct, the confectionery shall be deemed to be an industry engaged in the manufacture of sugar, and for that reason it will come within the purviewof the Act and the Scheme.
20. The next point urged on behalf of the petitioner was that the provisions of the Act could apply only to employees employed in industries detailed in Sch. I, and not to factories or establishments as a whole which were engaged in such industry. The suggestion made therefore, is that even if the sugar factory, distillery and confectionery are regarded as one factory or establishment, the provisions of the Act shall apply to only such employees as were employed in the sugar factory, and not to those who were employed in the distillery or confectionery. This contention is clearly against the provisions of the Act.
As there is a clear pronouncement of this Court, with which I respectfully agree, it is not necessary for me to comment in detail on this question of law. In Regional Provident Fund Commissioner v. Great Eastern Electroplators Ltd. 1958-2 Lab LJ 676 : (AIR 1959 All 133), it has been laid down that the relevant consideration is the number of persons employed in the factory, and not those employed in the industry, and if the factory was engaged in an industry detailed in Schedule I and had in employment 50 persons or more, the provisions of the Act shall apply to all the employees of the factory and not merely to the employees of the industry.
21. The order of the Regional provident fund Commissioner and also the provisions of the Act were further challenged on the ground that they were of discriminatory nature. It Was said that there were many distilleries in the State of Uttar Pradesh which were not owned and managed by concerns running a sugar factory and as a result of the above interpretation the , distilleries having sugar factories of their own would be handicapped and may not be able to compete with distilleries which were not owned by persons running a sugar factory also.
This contention has no force. The law lays down a rule which is applicable to all the factories or establishments similarly placed. It makes a I reasonable classification without making any discrimination between factories placed in the same class or group. Further, the unity of ownership and management is not, as detailed above, the sole guide for determination of one factory or establishment and for application of the provisions of the Act.
Owners of factories Can, if they so desire, run sugar factory and distillery in such a manner that the two can be regarded as separate factories, on establishments for purposes of the Act, and in such a case the provisions of the Apt shall apply only to the sugar factory, and not to the distillery, even though the two may be owned by the same body and located near each other.
The handicaps to be suffered by the petitioner will thus be the result of its own management and not due to any defect in the law or the incorrect interpretation of the provisions of the Act by the Regional Provident Fund Commissioner. In my opinion, therefore, the provisions of the Act and also the interpretations given thereto by the Regional Provident Fund Commissioner cannot be said to be hit by the provisions of Article 14 of the Constitution of India.
22. It was also contended that In view of Section 19-A of the Act, the Regional Provident Fund Commissioner had no power to lay down whether the establishment of the petitioner was or was not governed by the provisions of the Act, and this duty was cast upon the Central Government to make an order to remove difficulties which were arising in giving effect to the provisions of the Act.
This contention can be repelled on two grounds; firstly, the law is clear and is not capable of two interpretations and consequently no genuine difficulty can arise in giving effect to the provisions of the Act; secondly, it is not necessary that whenever a dispute is raised by the management, the Regional Provident Fund Commissioner must refer the matter to the Central Government for orders.
If the petitioner did not agree with the interpretation of the Regional Provident Fund Commissioner, it was necessary for it to move the Central Government for issuing orders for the removal of difficulty, if any. The petitioner has not alleged that a reference had been made to the Central Government but it did not issue any direction.
The petitioner did make representations to various authorities and they sent a reply in due course. No communication was sent to the Central Government and consequently when no directions were issued under Section 19-A the blame would lie upon the petitioner and it will not be open for the petitioner to now say that the order of the Regional Provident Fund Commissioner should bo quashed on the ground that no directions had been issued by the Central Government.
23. To conclude, the sugar factory, distillery and confectionery of the petitioner situate at Daurala constitute one factory or establishment for purposes of the Act, and when the factory was engaged in an industry detailed in Schedule I of the Act, the employees of all the three units were entitled to the benefits of the Act, The Regional Provident Fund Commissioner was, therefore, justified to direct that the petitioner should make a provision of provident funds for the employees of all the three units, and not only of the sugar factory.
The provisions of the Act and also the directions of the Regional Provident Fund Commissioner are not discriminatory, nor are they in any way hit by Article 14 of the Constitution of India. When the law is clear, no question arose for the removal of difficulty by the Central Government under Section 19-A of the Act, and if the petitioner thought that the law was capable of more than one interpretation it was necessary for it to make a reference to the Central Government for orders.
The petitioner did not make any representation to the Central Government and the representations made to the various officers were dealt with in due course in accordance with the law. Further, when the order of the Regional Provident Fund Commissioner is according to the law, it shall have to be held that no manifest injustice was caused to the petitioner when directions of the Central Government under Section 19-A of the Act were hot' obtained, and as held in Veerappa Pillai v. Ramanand Raman Ltd.. 1952 SCR 583: (AIR 1952 SC I 192), this Court can refuse to grant a writ.
24. The petition has thus no force, and it ishereby dismissed with costs. The stay order shallstand vacated.