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Haji Nadir Ali Khan and ors. Vs. the Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial;Constitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 49-D/1956
Judge
Reported inAIR1958P& H177
ActsEmployees' Provident Funds Act, 1952 - Sections 1(3), 6 and 16; Constitution of India - Articles 14 and 31
AppellantHaji Nadir Ali Khan and ors.
RespondentThe Union of India (Uoi) and ors.
Appellant Advocate K.L. Misra,; S.L. Andley and; G.D. Srivastava, Advs.
Respondent Advocate Bishamber Dayan and; Keshav Dayal, Advs.
DispositionPetition dismissed
Cases ReferredPrem Narain Aggarwal v. Union
Excerpt:
.....1952 or after. ,partly on the ground that some of the points involved in the petition could better be investigated in a suit, out mainly on the ground that since the regional commissioner was acting under the orders of the central provident fund commissioner, new delhi, and the ministryof labour of the government of india, these were also necessary parties which of course implied that the petition should have been filed in this court......and company, challenging the validity of certain demands made from them by the regional provident fund commissioner, kanpur (u. p.), under the employees provident funds act, 19 of 1952. 2. briefly the facts are that the firm of the petitioners is engaged in manufacture of various kinds of musical instruments including those metal instruments of the kind used in brass bands as well as instruments like bag-piper, flutes and clarionets. 3. the employees' provident funds act was introduced in 1952 for the purpose of providing for the institution of provident funds for employees in factories and other establishments. section 1(3) reads : 'subject to the provisions contained in section 16, it applies in the first instance to all factories engaged in any industry specified in schedule i in.....
Judgment:
ORDER

D. Falshaw, J.

1. This is a petition under Article 226 of the Constitution filed by six partners of a firm carrying on business at Meerut under the name of Messrs. Nadir AH and Company, challenging the validity of certain demands made from them by the Regional Provident Fund Commissioner, Kanpur (U. P.), under the Employees Provident Funds Act, 19 of 1952.

2. Briefly the facts are that the firm of the petitioners is engaged in manufacture of various kinds of musical instruments including those metal instruments of the kind used in brass bands as well as instruments like bag-piper, flutes and clarionets.

3. The Employees' Provident Funds Act was introduced in 1952 for the purpose of providing for the institution of provident funds for employees in factories and other establishments. Section 1(3) reads :

'Subject to the provisions contained in Section 16, it applies in the first instance to all factories engaged in any industry specified in Schedule I in which fifty or more persons are employed, but the Central Government may after giving not less than two months' notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act, to all factories employing such number or persons less than fifty as may be specified in the notification and engaged in any such industry.'

The basic provisions regarding the provident fund which has to be maintained by the proprietors of the factories to which the Act applies are contained in Section 6, which ordinarily Fixes the contributions to the fund to be made at an equal basis by the employer and the employee at 6 1/4 per cent. or in other words one anna in the rupee, of the basic wages and dearness allowance, and a comprehensive scheme has been framed by the Central Government under Section 5 of the Act containing the details of implementation,

4. The proceedings against the petitioners who had apparently not up to that time taken any action to implement the provisions of the Act, commenced in February 1955 when the Regional Provident Fund Commissioner, Kanpur, made a written enquiry as to the number of workmen employed by them. The figure was supplied as 189 factory workers as well as certain other employees bringing the total figure to 210. Thereafter the petitioners were informed that their establishment fell within the scope of the Act and they were required by the Regional Commissioner to submit accounts and deposit the sums due under the Act as from the date of the commencement of the Act with regard to employees who had completed one year's continuous service by 6th of October 1952 or after.

5. These proceedings were challenged by the petitioners by a petition filed under Article 226 of the Constitution in the High Court at Allahabad. Their petition was dismissed on 30th of January 1956 by Chaturvedi J.,partly on the ground that some of the points involved in the petition could better be investigated in a suit, out mainly on the ground that since the Regional Commissioner was acting under the orders of the Central Provident Fund Commissioner, New Delhi, and the Ministryof Labour of the Government of India, these were also necessary parties which of course implied that the petition should have been filed in this Court. A fresh petition was in fact promptly filed here in February 1956 in which the Central Provident Fund Commissioner and the Union of India through the Ministry of Labour have been added as respondents in addition to the Regional Commissioner.

6. Two main arguments have been advanced by the learned counsel for the petitioners, firstly that the nature of the business carried on by them in the factory did not bring them within the scope of the Act, and secondly that the Act itself was ultra vires as it offended the provisions of certain articles of the Constitution.

7. On the first of these points it is obvious that the Act was generally intended to apply to all kinds of factories where more than fifty persons were employed, and the provisions of Schedule 1 appear to be very comprehensive. They are as follows:

'Any industry engaged in the manufacture of any of the following namely:

Cement.

Cigarettes,

Electrical, mechanical or general engineering products.

Iron and steel.

Paper.

Textiles made wholly or in part of cotton or wool or jute or silk, whether natural or artificial.

Explanation: In this schedule without prejudice to the ordinary meaning of the expressions used therein

(a) the expression 'electrical, mechanical or general engineering products' includes

1. machinery and equipment for the generation, transmission, distribution or measurement of electrical energy and motors inducting cables and wires,

2. telephones, telegraphs and wireless communication apparatus,

3. electric lamps not including glass bulbs

4. electric fans and electrical domestic appliances,

5. storage and dry batteries.

6. radio receivers and sound reproducing instruments.

7. machinery used in industry, including textile machinery other than electrical machinery and machine tools,

8. boilers and prime movers including internal combustion engines, marine engines and locomotives,

9. machine, tools, that is to say, metal and wood working machinery.

10. printing wheels,

11. ships,

12. automobiles and tractors,

13. bolts, nuts and rivets,

14. power driven pumps,

15. bicycles,

16. hurricane lanterns,

17. sewing and knitting machines,

18. mathematical and scientific instruments,

19. products of metal rolling and re-rolling,

20. wires, pipes, tubes and fittings,

21. ferrous and non-ferrous castings,

22. safes, vaults and furniture made of iron or steel or steel alloys,

23. cutlery and surgical instruments,

24. drums and containers,

25. parts and accessories of products specified on items 1 to 24; * * * * *.'

8. Although musical instruments whether made of metal or otherwise are not specifically mentioned, it seems to me that there can be no doubt that such products fall within the scope of the expression 'electrical, mechanical or general engineering products'. Some of the items enumerated in the Explanation, which is expressly not intended to be exhaustive, obviously fall under the head of engineering products, such as boilers and prime movers, marine engines and locomotives, ferrous and non-ferrous castings and industrial machinery, while others obviously fall under the category of electrical products such as those covered by items (1) to (6).

It seems to me that the items generally from No. 10 onwards are intended to be covered by the heading 'mechanical products' though some of them such as hurricane lanterns, drums and containers and cutlery and surgical instruments may not appear on the face of it to be very obviously mechanical and in this context the word 'mechanical'' would seem to be intended to cover all manufactured objects which are put to some use as opposed to articles of food and drink which are intended for consumption, I have no hesitation in including musical instruments which are intended to be played by their ultimate owners within this category and indeed it seems to me that the principle of equality before law covered by the provisions of Article 14 of the Constitution on which in the other part of his argument the learned counsel for the petitioners is relying would be infringed if, for instance, a maker of surgical instruments or hurricane lanterns had to comply with the provisions of the Act while manufacturers of metal musical instruments should be exempted.

9. The main ground on which it was sought that the Act should be declared unconstitutional was the provisions of Section 16 to which the provisions of Section 1(3) of the Act were expressly made subject. Section 16 provides that the Act shall not apply to any factory belonging to the Government or a local authority, or to any other factory established whether before or after the commencement of the Act unless three years have elapsed from its establishment. No objection is taken to the latter provision which is obviously intended to exempt a newly organised factory from thescope of the Act until it has had a chance tosettle down and recruit a more or less permanent staff.

It is, however, objected that Article 14 of the Constitution is offended by the provisions exempting factories belonging to the Government or local authorities from the scope of the Act on the ground that it is not a reasonable classification. I do not agree with this contention since it seems to me to be quite reasonable to exempt factories run by the Government and local authorities. In such cases it is to be presumed that the employees in those factories are otherwise safeguarded and at any rate in the case of permanent employees, already enjoying the benefits of a provident fund.

Even if, however, no case could be made out for exempting factories belonging to the Government or local authorities from the provisions of the Act, this would not constitute ground for declaring the Act as a whole to be ultra vires and all that would need to be declared ultra vires would be Section 16 itself and the reference to it in Section 1(3) which could easily be omitted by an amending Act which would leave the Act as a whole untouched.

10. In the grounds mentioned in the petition Article 19 of the Constitution is also referred to but no argument has been addressed to me on this point. Some attempt was, however, made to argue that the Act offended against the provisions of Article 31 which provides that no person shall be deprived of his property save by authority of law. I do not, however, consider that it can be seriously contended that an order for an employer to contribute one anna in the rupee of his employee's wages to a provident fund to which the employee also has to contribute the same amount out of his wages amounts to deprivation of property such as was contemplation when Article 31 was drawn up.

11. Finally the proceedings taken by the Regional Commissioner are challenged on the ground that he could not lawfully call on the petitioners in 1955 to deposit the contributions due as from 1st of November 1952 in respect of the employees who had completed one year's service with the petitioners by that date. This point arose before me in Prem Narain Aggarwal v. Union oil India, Civil Writ No. 322-D of 1954, D/- 23-11-1955 (Punj) (A).

I held that although it might perhaps have been more reasonable if the Commissioner had merely compelled the petitioners to fall in with the scheme as from 1st of July 1954 when he first brought the matter to their notice, I could not hold that his demand for the employer's share of the provident fund as from 1st November 1952 was illegal. My order in that case was made the subject of a Letters Patent Appeal which was dismissed by Bishan Narain and Chopra JJ., on 13th of February 1957 and my order on this point was upheld. In the circumstances I do not feelthat there is any ground on which I can interfere and I accordingly dismiss the petition with costs. Counsel's fee Rs. 50/- for eachrespondent.


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