1. This is a petition for the issue of an appropriate writ to restraint the Regional Provident Fund Commissioner from enforcing his orders dated 28-11-1956, 29-12-1958 and 6th March, 1957. The relevant facts are these.
2. The petitioners are the firm of V. Perumal Chetty and Sons. They run a pencil factory in Madras, in which according to one part of the record 114 people and according to another part of the record 140 people are employed. The factory utilises imported machinery, and attached to the factory is a foundry and a workshop in which certain spare parts required for the use of the machinery are fabricated. The number of persona employed in this workshop and foundry is 23.
3. On 28-11-1955 the Regional Provident Fund Commissioner wrote to the petitioners,
"Your factory conies under the purview of the Employees Provident Funds Act, 1952, and the Scheme framed thereunder from 1-11-1952 as it is engaged in the manufacture of "General Engineering Products" one of the industries mentioned in, Schedule 1 to the Employees Provident Funds Act, 1952, has completed three years from the date of commencement of production on 6-10-1952 and has employed fifty or more persons on 6-10-1952."
4. He then called upon them to submit various returns and make various remittances. On 20-12-19.56 the petitioners replied that their factory did not fall: under the Employees Provident Funds Act. On 29-12-1956, the Commissioner wrote to the petitioners
"With reference to your letter cited you; are informed that Section 1(3) of the Employees Provident Funds Act provides that the Act applies to all factories engaged in any industry specified in schedule I in which 50 or more persons are employed. The words 'in which 50 or more persons are employed' have reference to the word "factory' and not to 'industry'. Therefore even though the number of workers engaged in a scheduled industry in factory may be less man 50, the Act will apply to the factory if in the factory as a whole 50 workers or more are employed. It is the total employment as a strength of the factory as a unit on the crucial date, viz., 6-10-1932 which is material! and not the employment strength of a section engaged in the Scheduled Industry."
5. On 18-1-1957 the petitioners again wrote to the Regional Provident Fund Commissioner to which on 6-3-1957 he sent a reply requiring the petitioners to comply with the instructions already issued. In paragraph 4 of this letter, the Commissioner stated,
"It is brought to your notice that by not implementing the Employees Provident Fund Scheme 1952 so far in your factory you have violated the mandatory provisions of the Employees Provident Fund Act 1952 and the scheme and have thus rendered yourself liable for prosecution under Section 14 of the Act and paragraph 76(a) (c) and (e) of the Employees provident Fund Scheme 1952. if you do not implement the scheme within a week of receipt of this, notice, you are hereby informed and please take notice that penal action under the provisions of the Act and the scheme quoted above will be taken against you without any further intimation to you."
6. In view of this the petitioners filed the present writ petition on 15-3-1957. They also applied for an interim injunction in C.M.P. No. 2311 of 1957, and on 15-4-1958, Rajagopalan J. granted the interim injunction prayed for.
7. Section 19(A) of the Employees Provident Funds Act of 1952 provides that "if any doubt arises as to (i) whether a factory is engaged in any industry specified in schedule I; or (ii) whether 50 or more persons are employed in factory .......the Central Government may by order make such provision or give such direction ....... as appear to it to be necessary, or expedient for the removal) of the doubt or difficulty ......." The section also provides that the order of the Central Government in-such a case shall be final. In view of this the petitioners wrote to the. Government of India to which they received the reply, that their application would be considered after the writ petition they had filed in this court has been disposed of by this court.
8. The question is whether the Employees Provident Funds Act of 1952 applies to the factory of the petitioners.
9. Omitting the portions that are not material hero, Sub-section 3 of Section 1 of the Act originally ran as follows:
"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."
Central Act No. 94 of 1956 re-enacted the section as shown below: (here too I am quoting only the material portion):
"Subject to the provisions contained in Section 16, it applies (a) to every establishment which is a factory engaged in any industry specified in schedule I and in which fifty or more persons are employed........"
The amendment made three changes: (i) the words 'in the first instance' were taken out; (ii) instead of the words 'all factories', the expression every establishment which is a factory" was substituted; and (iii) the word "and" was inserted between the words "schedule I" and "in which 50 or more persons are employed." For the purpose of the present case the first two changes are not important but the third one is.
10. The argument of the learned advocate for the petitioners may be thus summarised: Schedule I includes cement, cigarettes and 'electrical mechanical or general engineering products'. That schedule, however, does not include pencils. The making of spare parts for machines with the aid of which pencils are manufactured will no doubt fait within the heading 'engineering products.'
But the petitioners are not employing fifty persons in making such engineering products.
The expression '50 or more persons' used in Sub-section 3 of Section 1 as it stood before it was amended relates 'industry' and not to the word 'factories'. Unless, therefore, it can be shown that the petitioners have been employing fifty or more persons-in that section of their factory which is engaged in manufacturing engineering products, that factory will not come within the scope of the section.
11. To this the learned Government Pleader replied: The expression "fifty or more persons" relates not to the word 'industry' but to the word 'factories.' Therefore, if any, engineering product is manufactured in any part of a factory it is of no consequence whether the number of persons engaged in such manufacture is less than 50. If the total number of persons employed in the factory including the number of persons employed in manufacturing an 'engineering product' amounts to 50 or more, then the provisions of the Act would apply.
12. I shall now refer to some of the decisions cited before me.
13. One of these is that of the Bombay High Court in Oudh Sugar Mills Ltd v. Regional Provident Fund Commr, Bombay, -The material facts there were as follows: The petitioner was a public limited company registered under the Indian Companies Act. It carried on the business of manufacturing hydrogenated vegetable oil and its by-products, such as soap and oil cake. The oil used to be marketed in tin containers of various sizes. Such containers were fabricated by the company in the precincts of the oil factory.
The containers were used only for the purpose of packing vegetable oil and for no other purpose. 31 persons were employed in manufacturing these tin containers. 211 workers were employed in the other parts of the factory. The Regional Provident Fund Commissioner called upon the company to make contributions under the Employees Provident Funds Act. At that time the oil industry was not included in schedule I of the Act but drums and containers were. The court held that the demand made by the Regional Provident Fund Commissioner was not legal. Justice Mudholkar observed,
"The word 'industry' as already stated has been defined to mean a specified industry. What we have therefore to ascertain is, what was the industry in which the Unit was engaged and not merely what was manufactured by the unit for the purpose of its industry. A unit may manufacture a number of things some of which may fall within the schedule. But if that was not the main or the dominant purpose of the industry, it would make no difference. In other words, where while carrying on an industry certain products are produced not with the object of marketing them separately but with the object of using them in the industry itself, then the production of those articles cannot result in the engagement in an industry of producing these articles. The word 'industry' should be understood in the sense in which it is understood in the business community. If the industry, as here, is the production of edible oil, then all the intermediate products which are produced for carrying on that industry cannot be regarded as separate industries. Therefore, the mere fact that any of these products was included in the schedule will not bring the Act into operation."
14. With these observations I am in respectful agreement. Jambe J. however stated: "I agree with my learned brother in the conclusion reached, viz, that this petition should be allowed. However with utmost respect to my learned brother, I do not find myself in agreement with the view taken by him that where the principal object of an industry does not fall within the meaning of the First Schedule of the Act then even if certain scheduled articles for being used in that industry only are manufactured, the provisions of the Act are not attracted. In my view, the determining factor is whether in any part of a factory any manufacturing process is going on and whether the manufactured article is such that it falls within the meaning, of the First schedule. But to attract the Act this alone is not sufficient. The number of persons employed in the unit engaged in the manufacture of such article must be fifty or more.'' It is on these observations of Tambe J. that the learned counsel for the petitioners strongly relied.
15. The second case, I shall refer to, is Nagpur Glass Works Ltd v. Regional Provident Fund Commissioner, . The principal business of the petitioner there was the manufacture of glass in which 420 workmen were employed. It was also engaged in the manufacture of burners and metal lamps, consisting of glass oil containers and metal burners and reflectors. In this branch 187 people were employed.
Schedule I of the Provident Funds Art did not at the relevant time include the glass industry. In 1953 the Provident Funds Act of 1952 was amended, and an explanation was added to schedule I. This explanation, gives a list of 'industries' which are included in the general heading 'electrical' mechanical or general engineering products' mentioned in the schedule. Neither burners nor metal lamps are included in this explanation; but 'hurricane lanterns' are.
The court held that metal lamps & burners would fall within the definition of electrical mechanical or general engineering products but that nevertheless the Employees Provident Funds Act would not apply to die whole factory, since glass was not included in the Schedule at the relevant date and that the Act would apply only to that section of the factory, which produced burners and metal lamps.
The learned Judges dissented from the view of Mehrotra J. as reported in Great Eastern Electropla-ters Ltd v. Regional Provident Fund Commissioner, , about what would constitute
electrical, mechanical and general engineering goods. The decision of Mehrotra J. however is of interest in another respect. At page 194 (of FJR): fat p. 497 of AIR) the learned Judge observed,
''Before the provisions of the Act, therefore, could be applied to the present factory, it is necessary (a) that the factory should be engaged in any industry specified in the schedule, (b) that it should employ 50 or more persons and (c) that it is not an infant factory within the meaning of Section 16 of the Act......."
The point to which I want to draw attention here is that the learned Judge was of opinion that the expression "50 or more persons" relates to "factories" and not to "industry."
16. In N.K. Industries (Private) Ltd. v. Regional Provident Fund Commissioner AlR 1958 All. 474, Sahai J. following the unreported decision of the Kerala High Court in Kokkalai Rice and Oil Mills v. R.P.F. Commissioner, (Ori. Petn. No 78 of 1953, D/- 22-2-1954) expressed the view that the expression "50 or more persons" applied to "factories" and not to "industry."
"The point therefore to consider is whether the expression 'in which 50 or more persons are employed' applied to 'factories' or to 'industry'. The petitioner's case is that it relates to 'industry", and not to 'factories'. To my mind the words 'in which fifty or more persons are employed' relate to 'factories' and not to industry. I say so because the latter part of the section, which is as follows, to my mind, makes it clear.- '.......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 the Act to all factories employing such number of persons less than fifty as may be specified in the notification and engaged in any such industry" ....... It is obvious therefore that it is the strength of the factory and not of that department in which that particular industry is being carried on which is to be considered. In other words the Act would apply to factories employing fifty or more persons though in that department of the factory in which that particular industry is being carried on less than 50 persons arc working."
17. With respect I am unable to agree with the view that 'fifty or more persons' refers to industry and not to factory. It will be noticed that the word "industry" is used in the Act to indicate a sector of economic activity in which several factories may be engaged, and not to a department inside a factory. Schedule I speaks of "any industry engaged in the manufacture of any of the following ; and then various items like cement, iron and steel, paper, textiles are enumerated.
The cement industry, for example, would comprise a number of factories like those run by say, the Andhra Cement Co. the Associated Cements Co, and others. The word "industry" as used in the Act is inappropriate to indicate only a unit or department inside a factory.
This view is strengthened by the language of Section 19(A) of Act XIX of 1952, which gives power to the Central Government to remove difficulties whenever any doubt arises as to whether a "factory" is engaged in any "industry" or whether 50 or more persons are employed in a factory. This will make it clear that the word industry and the word "factory" are not used in the sense in which they appear to have been understood in and the Kerala case, (Ori. Petn. No. 78 of 1953).
Whatever scope there may have been for argument about the meaning of these words in Section 1(3) as it originally stood, there is no such scope now after the section was recast and amended in 1956. As I mentioned before, Sub-section 3 of Section 1 was recast as follows by Act 94 of 1956:
"Subject to the provisions contained in Section 16, it applies (a) to every establishment which is a factory engaged in any industry specified in schedule I and in which 50 or more persons are employed."
The introduction of the conjunction "and" between the words "Schedule I" and the words "in which 50 or more persons are employed" makes it manifest beyond doubt that the latter set of words must be related to "factory." This amendment made in the Act does not appear to have been noticed in the Allahabad case cited above as the judgment quotes Section 1(3) as it stood before its amendment in 1950.
18. At the same time I find it difficult to accept the view of the learned Government Pleader that if any part of a factory is engaged in making "an engineering product" within the meaning of Schedule I of Act XIX of 1952, then that factory must be considered to he one engaged in making an engineering product, and that in consequence Act XIX of 1952 will apply to it. The error in this view consists in that it ignores the difference between what is primary and what is incidental.
We can properly say that a carpenter is engaged in working on wood, in making chairs, tables, or windows as the case may be. But from time to time the carpenter sharpens his chisel on a piece of plank on which some sand is spread, or it may be that he replaces the broken handle of one of his chisels. That is only incidental to his primary or principal work as a carpenter. If the reasoning of the learned Government Pleader were right, we may as well say that when a clerk working in an office mends his pencil he is "engaged" in mending pencils. But that will be manifestly absurd.
19. Let us take another illustration. Suppose there is a dairy farm where the milk is converted into butter, cheese, cream and other rnilk products. That will be a factory within the meaning of Section 2(g) of Act XIX of 1952. Now a dairy would require drums in which bran, cotton seed and other forms of cattle feed are stored. It will also require buckets of wood or other material in which the cattle feed is- mired and served to the animals. The dairy would also require chums, cream separators and other similar equipment.
It would need vessels with handles for transporting the milk from the milking shed to the cold room. If may also keep bicycles for delivery of the articles to the customers- Now drums and containers figure as item 24 in the explanation to schedule I, and these would, therefore, be "engineering products", Parts and accessories of these products are also included as item 25. Now in order to operate efficiently, the dairy may employ one or two persons to repair its drums and containers, who may provide new hoops for the drums and buckets or rivets of the handles of vessels and other containers.
They may also solder leaky vessels or repair or replace the tubing in the factory. Because one or two persons are engaged in such processes nobody would think of saying that the dairy is engaged in the manufacture of engineering products. On the basis of the reasoning of the learned Government Pleader one must be prepared to say that if a large hotel which employs 50 or more people also employs a man to repair its vessels and "containers" by refixing the handles, or for providing rivets to those handles whenever necessary it will be a factory engaged in the production of engineering goods. That would be a very extra-ordinary position.
20. It seems to me that the proper way of looking at the matter is this: First of all we ask: to what does the section apply? The answer at once emerges that it applies to "factories", that is to say, to premises in any part of which a manufacturing process is carried on, whether with or without the aid of power. We next ask, to what kinds of factories (does it apply?
We now find that two requirements have to be satisfied: One is that 50 or more persons must be employed in the factory. The other is that the factory must be engaged in on a of the industries specified in schedule I. One of those industries is the manufacture of engineering products as explained in the schedule.
21. It is the "factory" which must be engaged. In other words that must be the primary activity of the factory. If with a view to carry out its primary activity, it is incidentally engaged in something else, it will not alter its primary character. The learned Government Pleader argued that the section does not say that the factory must be wholly engaged in the specified industry.
That is 110 doubt so. But this does not mean that the construction contended for by the learned Government Pleader is correct. In order to get the result he is contending for, we will require the addition of a wholly new set of words in Section. 1(3). We shall require words to the effect that if any port of factory is engaged in making any article that falls within the scope of schedule I, then the whole factory would be deemed to be engaged in such industry.
The learned Government Pleader argued that the Act is a benevolent enactment, and that, therefore, we must try to extend its scope as far as possible. It seems to me that it is for the legislature to say how far it will go. A court can only take the words as they are written in the statute. Suppose in the present case a jury were to be taken round the factory of the petitioners and after they have seen it and they come out of it they are asked: what is this factory engaged in the only answer' they would give is that it is engaged in making pencils.
That it seems to me, is the proper approach to the question. Of course, I agree that a factory may be engaged in producing more than on article. In such a case it would be perfectly correct to say that the factory is engaged in producing all those articles. I have no doubt whatever that the word "engaged" in Sub-section 3 of Section. 1 refers to the primary activity of the factory. I have quoted above from paragraph 7 of the judgment of the Bombay High Court in and I repeat my respectful agreement with it.
22. In my view the factory run by the petitioners is not engaged in any industry specified in schedule I of the Act, XIX of 1952. The Act, therefore, does rot apply to it. The rule nisi is, therefore, made absolute. There will be no order as to costs.