1. An interesting question arises in this writ petition a to whether the messes run by the Indian Institute of Technology, Madras petitioner herein, could be brought within the ambit of Section 1(3)(b) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act). The facts arc as under:
2. The petitioner, Indian Institute of Technology, Madras, is a statutory body created by Central Act 59 of 1961. It is a corporation sole. Section 31 of the Central Act empowers the Central Government to establish a council. Section 27 of the Central Act authorises the council to frame statutes with the previous approval of the Visitor (President of India). In pursuance of such power, the council has framed statutes. Section 23 of the statutes provides as follows:
23. Halls and Hostels.-(1) The institute shall be a residential institution and all students, research scholars and research fellows shall reside in the Halls of Residence and Hostels built by the Institute for the purpose.
In exceptional cases, the Director may permit a student, scholar or fellow to reside with his parent or guardian, but where any such permission is accorded to a student, scholar or fellow, such student, scholar or fellow, as the case may be, shall be liable for the payment of such seat rent as he would have been liable for the payment of seat rent had he resided in the hostel.
(2) Every resident in the Halls and Hostels shall conform to the rules laid down by the Senate for the purpose.
(3) For each Hall of Residence there shall be a Warden and such number of Assistant Wardens and other staff as may be determined by the Board from time to time.
(4) The offices of Warden and Assistant Warden shall be held by the members of the Academic Staff of the Institute. The appointments shall be made by the Director.
(5) Wardens and Assistant Wardens shall be entitled to rent-free unfurnished quarters corresponding to the type of quarters to which they are normally entitled as teachers of the Institute. In addition, they shall be paid an allowance of Rs. 50 per mensem, provided that in case a Professor is appointed as Warden, he shall not be entitled to receive any allowance.
(6) The management of the Halls of Residence and Hostels shall be in accordance with the rules laid down by the Director.
3. From the above, it would be seen that statutory obligation is imposed on the petitioner herein to run a hostel. Consequently, it becomes obligatory on the part of the institute to provide them with food. Separate unregistered Committees have been formed with a view to run the hostel under the supervision of the institution. The kitchen attached to the hostels are part of the hostels. These hostels are subsidised from the funds of the institute to a certain extent.
4. The institute received a communication from the Regional Provident Fund Commissioner (respondent) stating that the messes run by the hostels in the campus come within the purview of the Act and calling upon the institute to appear before him with the account books of the various messes run by the hostels in the campus under the overall control of the institute. It was his main case that the messes would come within the purview of the Act. In view of the notification issued that messes would be covered by the provisions of the Act from 31st March, 1973, the petitioner pointed out that the primary object of the institute is to provide residential accommodation to students who were compelled to reside in the campus and the fact that food was provided in the hostels will not make the kitchens attached to the hostels messes. In any event, provision of food to students was subsidiary, minor or incidental to the running of the hostel. In this view even if the kitchens attached to the hostels can be characterised as messes, the object in running them being subsidiary or incidental to the main object of compelling students to reside in the hostel, the provisions of the Act cannot apply. This contention did not prevail with the respondent. It is under these circumstances, the present writ petition has been preferred by way of writ of prohibition to prohibit the respondent from proceeding further with his proposal to levy under the Act.
5. In the counter-affidavit of the respondent, the following stand is taken : To discharge the statutory obligation, the institute is running halls of residence and hostels for residential purposes and messes to provide food for the students. In this connection, it is pointed out that a mess is a place where food is provided regularly to a group of people. Similarly, students residing in the halls of residence and hostels are provided regularly with food. It is immaterial whether the messes are being run independently or as kitchens attached to the hostels. Such kitchens, attached to the halls of residence and hostels, which provide food regularly to the students are none other than messes.
6. By G.S.R. 299 dated 24th March, 1973, the Government of India have extended the provisions of the Act and the schemes framed thereunder to messes other than military messes with effect from 31st March, 1973. As the institute is running 11 messes attached to the hostels, the Provident Fund Inspector contacted the various officials of the institute to examine the applicability of the Act to the said messes. But, the petitioner did not produce the necessary records even for examining the applicability of the Act. Therefore, the petitioner was called to attend an enquiry under Section 7A of the Act. The applicability of the Act was explained to the director and registrar of the institute. They were persuaded to produce the accounts and after examining the matter in detail, it was proposed to cover the messes attached to the hostels under the Act. Accordingly, they were brought within the purview of the Act.
7. It is denied that providing of food to the students was subsidiary, minor or incidental to the running of hostels. While the students are compelled to reside, in the campus as provided under Section 23(1) of the statutes of the institute it is an obligation to provide residential accomodation. Similarly, the institute is under the obligation to provide food to such students. In so far as the kitchen provide regularly to the students residing in the hostels run by the unregistered committees under the superintendence of the institute which provides funds to them to a certain extent, it cannot be claimed that the petitioner has a subsidiary, minor or incidental activity to the running of the hostels. Even then the establishment would still be coverable under the Act.
8. It is true that the director of the institute suggested to the respondent to refer the dispute in question to the Central Government to get a decision in this matter. A fair reading of Section 19A of the Act may lead to the conclusion that it is the responsibility of the party concerned who is having any difficulty in giving effect to the provisions of the Act and in particular, if any doubt arises to refer the issue to the Central Government to get a direction for the removal of the doubt or difficulty. The respondent has no such doubt or difficulty about the applicability of the Act to the messes attached to the hostels of the institute.
9. It is immaterial for the purposes of coverage of the messes whether such messes run by the hostels are integral part of them or they exist as a separate entity. Hence, the contentions of the petitioner cannot prevail. For all these reasons there is absolutely no ground for the issue of writ of prohibition. Accordingly, the respondent prays that tits petition may be dismissed.
9A. No reply affidavit has been filed.
10. Mr. S.K.L. Ratan, learned Counsel for the petitioner, after drawing my attention to the statutory provisions, submits that under those provisions the Indian Institute of Technology, the petitioner, is obliged to run a hostel and thereby have a mess which would constitute an intergral part. Such a mess would not be an establishment within the meaning of the Act because it is not a main activity of the institute. It is only an incidental, minor, or a subsidiary activity. According to him, in other words, if by reason of statutory obligation it becomes necessary on the part of the institute to provide hostel accommodation which hostel accommodation is not complete without a mess, such a mess cannot be brought within the terms of the notification issued under the Act. In support of this submission, he relies on the decision in Associated Industries Private Ltd. v. Regional Provident Fund Commissioner, Kerala (1963) 25 F.J.R. 7, and particularly the passage occurring in pages 10-11 and proceeds to contend that it is not every mess that could be brought within the terms of the notification. It must be a main or the only part of its activity and not only incidental thereto. Having regard to the fact that the institute is a residential university, provision of a mess becomes necessary and in such a case, the decision cited k fully applies,
11. Kumari Radha Srinivasan, learned Counsel for the department, would draw my attention to the notification and state that in a mater of this kind that should be applied because it is a social legislation. Whether the mess in run as a main activity or subsidiary activity, so long as there is an establishment employing more that 19 persons, it would be covered by the provisions of the Act. It is also clear, according to her, that when exemption is granted to messes other than military messes, every other messes ought to be included, be it carried on mainly or incidentally.
12. It is true that the Act is social legislation. In my considered view, the test to be applied is, is it an establishment which has the avowed purpose of running messes. If it is so, certainly that would be brought within the notification, which says messes other than military messes. At this state, it may be relevant to note the definition of 'establishment' under Section 1(3)(b) of the Act, which says:
to any other establishment employing twenty or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette, specify in this behalf.
Only by virtue of this, notification No. G.S.R. 299 dated 24th March, 1973, has been issued with effect from 31st March, 1973, so as to cover the messes. The concept of the Indian Institute of Technology, Madras, must be kept in that background to appreciate this question, I have already extracted in full the statutory requirements under Section 23 to provide halls and hostels. If, according to Clause (1) of that section, it is a residential institution, all students will have to be necessarily provided with accommodation or lodging facilities. The definition of 'hostel' as stated in Shorter Oxford English Dictionary (page 925) is-
(1) place of sojourn or lodging
(2) an inn, or a hotel
(3) a house of residence for students especially (in recent times for students connected with a non-resident college
(4) A town mansion.
It is item No. 3 of the definition which applies to this case. If the institute is a residential institution more so when stringent provisions are made requiring the students or scholars to make the payment of seat rent as he would have been liable for the payment of seat rent had he resided in the hostel, certainly it cannot be said that the term hostel should be construed as merely a place of sojourn or a lodging. Having regard to this, it becomes all the more obligatory on the part of the institute to run a mess. When it runs a mess, it does it incidentally. In other words, it is an integral part of the various other activities, the primary activity being to impart technical education. The running of a mess is incidental, subsidiary and is not an independent one. The mess is not an independent establishment. It was this that was propounded by their Lordships in Associated Industries Private Ltd. v. Regional Provident Fund Commissioner, Kerala (1963) 25 F.J.R. 7:
This decision makes it clear that Section 1(3)(a) is not confined only to factories which are exclusively engaged in industrial work to which Schedule I applies, but it also takes in composite factories which run industries some of which fall under Schedule I and some do not. In order to make the position clear let us state the true legal position in respect of the scope of the application of Section 1(3)(a) in categorical terms. If the factory carries on one industry which falls under Schedule I and satisfies the requirement as to the number of employees prescribed by the section, it clearly falls under Section 1(3)(a). If the factory carries on more than one industry all of which fell under Schedule I and its numerical strength satisfies the test precribed in that behalf, it is an establishment under Section 1(3)(a). If a factory runs more industries than one, one of which is the primary and the dominant industry and the others are its feeders and can be regarded as subsidiary, minor, or incidental industries in that sense, then the character of the dominant and primary industry will determine the question as to whether the factory is an establishment under Section 1(3)(a) or not. If the dominant and primary industry falls under Schedule I, the fact that the subsidiary industries do not fall under Schedule I will not help to exclude the application of Section 1(3)(a). If the dominant and primary industry does not fall under Schedule I, but one or more subsidiary, incidental, minor and feeding industries fall under Schedule I, then Section 1(3)(a) will not apply. If the factory runs more industries than one all of which are independent of each other and constitute separate and distinct industries, Section 1(3)(a) will apply to the factory even if one or more, but not all, of the industries run by the factory fall under Schedule I. The question about the subsidiary, minor, or feeding industries can legitimately arise only where it is shown that the factory is really started for the purpose of running one primary industry and has undertaken other subsidiary industries only for the purpose of subserving and feeding the purposes and objects of the primary industry; in such a case, these minor industries merely serve as departments of the primary industry; otherwise if the industries run by a factory are independent, or are not so integrated as to be treated as part of the same industry, the question about the principal and the dominant character of one industry as against the minor or subsidiary character of another industry does not fall to be considered.
13. Applying this test in the instant case, if it is not an independent one, but, an integral part of its activities, in other words, it is subsidiary or incidental to the greater object of imparting technical education, I fail to see how, notwithstanding the fact that the Act is a social legislation intended to provide benefit to employees, it could still be extended to a mess of this character. No doubt, some light is thrown in the notification, when it states messes other than military messes. Nevertheless, it should be so construed as not to violate the spirit of the definition as to apply to messes, which are the main and primary objects of an establishment. Otherwise, in every case like the one we have on hand, this definition would be applicable and that will be virtually setting at naught the well running of institute like the petitioner which certainly cannot be in contemplation of this Act, however favourably it may be considered in favour of the employees. Thus, I am of the view that there is no scope for bringing in the messes run by the petitioner, viz., Indian Institute of Technology, Madras, which is an integral part of its institution and not an independent establishment within the four corners of the Act. Accordingly, this petition is allowed and there will be no order as to costs.