1. In these appeals the parties are the same and the question involved is also the same. They may therefore be disposed of by a common judgment.
2. We shall now state the facts of the first case. The Provident Fund Inspector, Quilon filed a complaint against the Kerala Janatha Printers and Publishers (P) Ltd., Trivandrum and K. Krishna Pillai, the Managing Director of the above company, alleging that they did not pay the contribution and administrative charges for the months of June, July and August, 1960 under the Employees Provident Funds Scheme of 1952 and that they were therefore liable for punishment. The said establishment was started on 25th January 1957, and the establishment started employing more than twenty but less than fifty persons a day from May 1960. It is also not disputed that the establishment was brought under the Employees' Provident Funds Act and the Scheme framed thereunder from 31st May 1960.
3. The Employees' Provident Funds Act was passed in 1952; and it was amended several times, ultimately by Act 46 of 1960 in December 1960. The accused contended that it was the amended Act that applied to this establishment; and that under the said Act its provisions would not apply to an establishment like this before five years from the date of its establishment, so that, until 1962 January the Act and the Scheme could not be applied to this establishment. This plea was accepted by the lower court and the accused were acquitted. The Provident Fund Inspector has come up in appeal.
4. The lower Court is in error in accepting this reasoning: still, its conclusion Is partly correct. Under the original Provident Funds Act of 1952 a factory employing fifty or more persons alone could be broughtwithin the scope of the Act. This was amended in December 1960 by Act 46 of 1960, under which the word 'twenty' was substituted for the word 'fifty' in Sub-section 3 of Section 1, with the result that the Provident Funds Act could thereafter be applied to establishments employing twenty or more persons a day. In the establishment before us, the number of workers is admittedly less than fifty but more than twenty. Therefore, even if the three years' period contemplated by the Act of 1952 was over before June 1960, since the number of workmen required under that Act was fifty, the Kerala Janatha Printers and (Publishers could not have come within the scope of the Act as it stood in June, July or August, 1960. On the other hand, if it was the Act as amended in 1960 that was applied, there also the Kerala Janatha Printers and Publishers could not have been brought under the Act in 1960, since the five years' period under the amended Act had not then expired. Thus, the Employees' Provident Funds Act could not have been directly applied to this establishment; and to that extent the decision of the lower court is correct, though not for the reason given by the lower court.
5. But there is another important aspect to the question. By Section 15 of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act of 1955, the Provident Funds Act of 1952, as in force for the time being, was made applicable to every newspaper establishment in which twenty or more persons were employed on any day, as if such establishment were a factory to which the Provident Funds Act had been applied by notification of the Central Government under Sub-section 3 of Section 1 thereof, and as if a newspaper employee were an employee within the meaning of that Act. In consequence, the Central Government Issued S. R. O. 2981 in the Gazette of India Extraordinary on 7th December 1956, by which Chapter X containing special provisions applicable to newspaper establishments was added to the Provident Funds Scheme. Evidently, under this provision, the Provident Funds Act and the Scheme must apply to the Kerala Janatha Printers and Publishers, in case the establishment is a newspaper establishment.
6. Mr. Kalathil Velayudhan Nair, the counsel of the respondents, disputes this position. In the first place, he contends that Section 15 of the Working Journalists Act does not purport to amend the Provident Funds Act and therefore the Provident Funds Act cannot be applied to newspaper establishments as provided in Section 15 of the Working Journalists Act. We do not find any force in this; because, what Section 15 of the Working Journalists Act does is to apply the Provident Funds Act to some classes of newspaper establishments and the employees therein, and it does not amend the latter Act.
7. The counsel then argues that by one provision of one Act another Act cannot be amended and such amendment is ultra vires. We are not able to appreciate | this argument either. The Parliament has power to legislate regarding newspaper establishments; and the Parliament has taken up that subject in the Working Journalists Act. The Parliament then makes applicable some of the already existing Acts to newspaper establishments with specified modifications : (vide Section 3 also of the Working Journalists Act in this connection). The Parliament could have incorporated the provisions of the Provident Funds Act in whatever modified form It desired In the Working Journalists Act Itself. Instead, the Parliament enacted that the Provident Funds Act would apply to newspaper establishments of the type mentioned in Section 15 of the Working Journalists Act. We confess we are not able to see any question of vires in this; nor is there any question of amending the Provident Funds Act.
8. The next argument of Mr. Velayudhan Nair is this Under Sub-section 3(a) of Section 1 of the Provident Funds Act factories engaged in the Industries specified in Schedule I and also employing twenty or more persons came within the ambit of the Act. Under Clause (b) of Sub-section 3 the Central Government Is invested with power to bring other establishments employing twenty or more persons also within the ambit of the Act by notification in the Official Gazette. Section 4 of the Act again confers power on the Central Government to add to Schedule, 1, also by notification in the Official Gazette. The counsel argues that all factories can be brought within the scope of the Act only under Clause (a) of Sub-section 3 of Section 1, by adding to Schedule I by means of a notification under Section 4; and only establishments, which are not factories, can be brought in under Clause (b) of Sub-section 3. He proceeds to contend that the effect of Section 15 of the Working Journalists Act was to add to Schedule 1 of the Provident Funds Act, with the result that, after the promulgation, of Section 15, Schedule I contained factories employing twenty or more persons, whereas Clause (a) of Sub-section 3 of SECTION 1 as it stood in 1956 still contained the provision that factories to come within the mischief of the Act should employ fifty or more persons. The counsel concludes by pointing out that the result was that Schedule I controlled Sub-section (3a) of Section 1, which could not, in law, be done. For this argument, Mr. Velayudhan Nair seeks support from the use of the word 'factory' In the deeming provision in Section 15 of the Working Journalists Act also.
9. This argument appears to be Ingenious; and its Ingenuity equals its fallacy. By Clause (a) of Sub-section 3 of Section 1 only factories employing twenty or more men engaged in specified Industries are brought within the Provident Funds Act. To all other establishments, factory or non-factory, whether engaged In industry or otherwise, the Act may be applied by resorting to notification under Clause (b) of Sub-section 3 of Section 1. Factories engaged in industries other than those mentioned In Schedule I may also be brought within the ambit of the Act by a notification under Section 4, thus adding to Schedule 1. What Section 15 of the Working Journalists Act does is not to bring newspaper establishments within Schedule 1 of the Act. Newspaper establishments may still be brought within the scope of the Act by notification under Clause (b) of Sub-section 3 of Section 1, whether they are factories or not, whether they are engaged in industries or not; because, Clause (b) applies to all establishments, factories or otherwise, with the only exception of factories engaged in the Industries specified in Schedule 1.
10. If the history of the amendments to the Provident Funds Act is borne in mind, the position will be clear. The Provident Funds Act of 1925 was intended to apply only to factories. But In 1956, by Act 94 of 1956, Sub-section 3 of Section 1 was amended so as to Widen the scope of the Act and to bring non-factory establishments also within its ambit by notification by the Central Government. The present position therefore is that if a factory engaged in a particular industry is to be broughtwithin the scope of the Act, it may be done by adding to Schedule 1 under Section 4. If, on the other hand, any establishment, factory or non-factory, whether, engaged in industry or not, is to be brought within the Act, that can be done by issuing a notification under Clause (0) of Sub-section 3 of Section 1.
11. Section 15 of the Working Journalists Act was passed in 1955, when the Provident Funds Act was still intended to apply to only factories and not to non-factoy establishments. Therefore, Section 15 of the Working journalists Act provided that the Provident Funds Act, tar the time being in force, would apply to every newspaper establishment in which twenty or more persons were employed, as if such newspaper establishment were a 'factory', to which the aforesaid Act had been applied by notification of the Central Government under Sub-section 3 of Section 1. At that stage the Provident Funds Scheme also applied only to factories. Hence, the deeming provision in Section 15 of the Working Journalists Act had necessarily to deem that such newspaper establishment was a 'factory'. The Provident Funds Scheme was also amended Jin 1957 by S. R. 0. 1363 so as to make the scheme applicable to 'factories and other establishments'. Thereafter, probably the deeming provision in Section 15 of the Working Journalists Act need not any more have deemed that the newspaper establishment was a 'factory'. It would have been enough if the deeming was that a newspaper establishment was 'an establishment' to which the Provident Funds Act had been applied by notification. It may even be suggested that the word 'factory' in Section 15 of the Working Journalists Act might have been replaced by the word 'establishment' after Act 94 of 1956. Still, we may observe that the retention of the word 'factory' in that section, though it has given rise to such an argument, will not support the argument to success.
12. It follows that under Section 15 of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, the Kerala Janatha Printers and Publishers (p)Ltd. will come within the scope of the Employees' Provident Funds Act and the Scheme framed thereunder, if the establishment is a newspaper establishment falling within Section 15.
13. At this stage Mr. Veiayudhan Nair pleads that this question was not considered by the lower court, nor were the respondents given any opportunity to show that the Kerala Janatha Printers and Publishers were not an establishment coming within Section 15. The learned Government Pleader agrees that, to obviate any possible prejudice to the respondents, that question may be considered.
14. The result is we allow the appeals, set asideall the twelve orders of acquittal and remand the casesto the court below for fresh disposal according to lawin the light of this judgment after taking additional evidence, if necessary.