P.B. Mukharji, J.
1. This is an application by the Aluminium Corporation of India Ltd. under Article 226 of the Constitution. The company complains against an order of the Government, dated 23rd October, 1957 No. R-1237/WB/6983 addressed by the Regional Provident Fund Commissioner at 28, Theatre Road, Calcutta to the Manager of the Aluminium Corporation of India Ltd. This order is purported to be made under Section 19-A of the Employees Provident Funds Act, 1952.
2. The material part of that order of the Government of India reads as follows :
'It has been decided by the Government of India under Section 19-A of the Employees' Provident Funds Act, 1952 that your factory will come under the purview of the Employees' Provident Funds Act, 1952 and the Scheme framed thereunder with effect from 1st November, 1952. You are requested to comply with all the provisions of the said Scheme with effect from that date.
As regards payment of contributions for the pre-discovery period (i.e. from 1st November, 1952 to 31st October, 1956) you are required to pay the employers' share of contributions and administrative charges on both the shares (employers' and employees') together with damages at the rate of 6 1/4 per cent, per annum to the statutory Fund.
Regarding payment of the employees' share of contributions for the aforesaid period it may be left to the employees concerned to pay the arrears, if they so desire.
You are, therefore, required to pay both employers' and employees' share o contributions from 1st November, 1956 onwards together with administrative charges thereon. It may please be noted that the damages will be levied as usual on all related payments under Section 14-B of the Act.
You are also required to transfer the past accumulation to the credit of the member employees as on 31st October, 1952 positively within 30 days from the receipt of this letter as required under paragraph 28 of the Employees' Provident Funds Scheme, 1952 read with Section 15 of the Act.'
3. On behalf of the applicant this order has been challenged. Large questions have been raised by the applicant. It has been contended that the company's business or industry does not come within the meaning of the Employees' Provident Funds Act, its Schedule 1 or any of the amendments thereto. For this purpose reliance is placed on the letter of the Government of India, dated 18/19th January, 1953 to the Secretary of the Company stating
'I am directed to say that the Corporation is not covered by the head 'Electrical, Mechanical or General Engineering Products', if it produces aluminium only as a raw material to be used in the manufacture of different articles of diverse use and applications.'
and the Regional Provident Fund Commissioner, West Bengal in Calcutta by letter No. R-1077, dated 23rd March, 1953 committed himself by saying
'Shri D. P. Datta, Provident Fund Inspector, West Bengal, has ascertained on enquiry that you produce aluminium sheets and circles only and do not manufacture any utensils out of aluminium. I, therefore, hold, subject to confirmation by Government, that your factory does not come within the purview of the Employees' Provident Funds Act, 1952.'
4. The other fundamental objection urged by the company against this order is that Ss. 4, 5 and 7 of the Employees Provident Funds Act, 1952 are ultra vires on the ground of excessive and unreasonable delegation. It has been contended that the Central Government's power to add to Schedule 1 of the Act and to include a new industry in the schedule without laying down any standard or norms by the test of which such industry is to be included gives arbitrary and uncontrolled power to the Central Government is bad on the ground of delegation. The same argument is made with respect to Ss. 5 and 7 of the Act relating to the scheme and the modifications of the scheme under the Act.
5. Thirdly, it has also been contended that Section 19-A of the Employees' Provident Funds Act is ultra vires the Constitution because it is unreasonable and for that purpose reliance has been placed upon a, decision of this Court reported as Messrs, Bharat Board Mills Ltd. v. Regional Provident Fund Commissioner, : AIR1957Cal702 (A). It was held here by the learned Single Judge that Section 19-A of this Act lacked the element of reasonableness and abridged and violated the fundamental right guaranteed by Article 19(1)(g) of the Constitution and as such was void under Article 13(2) of the Constitution. I understand an appeal is pending from that decision.
6. The first question about the interpretation of the statute and bearing on the question whether the particular industry of the applicant comes within the Schedule of the Act or not as well as the constitutional questions challenging the validity of the different provisions of the Employees' Provident Funds Act need not be decided by me on this application because I consider the order of 23rd October, 1957 is bad on its own terms independently of these questions. For my own part I am of the opinion that a case which can be disposed of without deciding constitutional questions should be so determined without expressing an opinion on the constitutional questions raised. Unless absolutely necessary for the purpose of deciding the case, I do not think a Court should render any opinion on the Constitution, even though a constitutional question is posed by the record. If there is present on the record some other ground upon which the case may be completely disposed of, then the Court will be wiser to so dispose it rather than make an unnecessary pronouncement on the Constitution. If a case can be decided on either of two grounds, one involving a constitutional question and the other questions of statutory construction or general law, then the Court should decide only the latter. See Siler v. Louisville & N. R. Co., (1909) 213 US 175 at p. 191 (B); Light v. United States, (1911) 220 US 523 at p. 538 (C), and the observations of Brandeis, J. in Ashwander v. Tennessee Valley Authority, (1936) 297 US 288 at p. 346 (D). This principle is not a rule of constitutional law but a rule of judicial prudence. Constitution is better and more soundly developed under the inescapable need of constitutional construction than by nebulous obiter dicta and uncalled for generalisation. In a written constitution such as that of India this practical need of judicial restraint cannot be over-emphasised in the growing and bewildering complexity of judicial commentary on the Constitution made too readily available on the slightest invitation.
7. The reasons why the order of 23rd October, 1957 cannot be sustained can be made plain on a bare analysis of the different parts of the order which I have already quoted.
8. I shall briefly summarise those reasons.
9. The first part of the order of 23rd October, 1957 requires the company to comply with all the provisions of the scheme under the Employees Provident Funds Act, 1952 with effect from 1st November, 1952. Now this order was being made on 23rd October, 1957. In other words this is an order which is made retrospectively applicable to the company and the period of such retrospect is as long as 5 years.
10. It is distinctly stated in the applicant's letter, dated 25th January, 1957 that the retrospective implementation will lead to absurdity 'inasmuch as many workers have left service in the meanwhile and the workers in service cannot be subjected to deduction of their contributions retrospectively and the employer cannot be made to pay employee's share of contribution in respect of those workers who have left service'. This fact is not disputed that quite a number of employees who were employed in 1952 have since left the employment of the company.
11. By applying the Scheme of the Act retrospectively from 1952 the Government of India has in my opinion asked the company to do what is impossible and also to do something which is entirely inconsistent with the statute.
12. Section 19-A of the Employees' Provident Funds Act, 1952 authorises and empowers the Central Government to remove difficulties. But it is expressly laid down that while the Central Government can do so by an order, that order or its provisions or directions must not be 'inconsistent with the provisions of this Act'. Now let us examine whether this retrospective operation which the Central Government has directed in this case leads to conflict with the provisions of this Act. In my opinion it does. I shall broadly illustrate the main points of conflict. .
13. First the preamble to the Act says that it is an Act 'to provide for the institution of provident funds for employees in factories and other I establishments'. In other words the object of the Act is the provident fund for employees. It is therefore inapplicable in respect of those employees who have left the service by taking away their own provident fund moneys because the company itself has its own provident fund scheme. In the letter of 25th January, 1957 which I have cited elsewhere the company expressly informed the Government
'We have however got a Provident Fund Scheme in our industry since 1-10-44. Subject to removal of difficulties as enumerated above, we require exemption under Section 17 of the Employees Provident Funds Act. We are, however, applying for such exemption without prejudice to our contention as above.'
It is, therefore, entirely against the purposes and object of the Act to apply a scheme retrospectively to the company for a period of five years within which time some of the employees have already left and presumably left by taking their provident fund accumulations. The Government by calling up the company to replenish and refund even those moneys is doing something illegal and against the preamble and object of the Act because no beneficiaries are there any more to avail of that fund for whom alone the Government can secure such fund from the employer.
14. Secondly, paragraph 26 of the Scheme itself which has been applied to the company retrospectively by the order of 23rd October, 1957 provides that
'Every employee, employed in a factory to which this Scheme applies . . . shall be required to become a member of the Fund from the date on which the scheme comes into force etc.'
Now it is impossible to satisfy this requirement in respect of employees who have already left service within these five years. There are also obvious difficulties to satisfy this requirement even in respect of the employees who are still continuing because they had not been required to become a member of the Fund in the last five years.
15. Thirdly, paragraph 29 of the Scheme again enjoins that the contribution payable by the employee under the Scheme shall be equal to the contribution payable by the employer. It is also expressly provided by Section 6 of the Act. Section 6 of the Employees' Provident Funds Act inter alia makes it mandatory that
'the employees' contribution shall be equal to the contribution payable by the employer in respect of him etc.'
Now by the order of 23rd October, 1957 the Government of India seems to have exempted the employees, by giving them an option. The order on the point is
'Regarding payment of the employees' share of contribution for the aforesaid period it may be left to the employees concerned to pay the arrears, if they so desire.'
This is clearly against the statutory mandate of Section 6 and paragraph 29 of the Scheme. Neither Section 6 nor paragraph 29 of the Scheme permits this option to pay or not to pay. They insist that 'the employee's contribution shall be equal' to the employer's contribution. I have no hesitation in holding that the Government of India cannot suspend the operation of this Act in this matter as against the employees. That is inconsistent with the pro-visions of the Act and therefore bad under express terms of Section 19-A of the Act.
16. Besides, by paragraph 32 of the Scheme it is provided that 'the amount of a member's contribution paid by the employer shall, notwithstanding the provisions in this Scheme or any law for the time being in force or any contract to the contrary be recoverable by means of deduction from the wages of the member and not otherwise'. That means the only method of recovery of a member's share of contribution paid by the employer is by means of deduction from the wages of the member and by no other. Now how is that going to apply to cases of those employees who have left the employer's service during the last five years? Obviously that provision cannot be applied. Therefore, the order of 23rd October, 1957 of the Government of India by which the company was required to comply with all the provisions of the said Scheme with effect from 'the 1st November, 1952' is against the Scheme itself, and is impossible of performance. It is inconsistent with the Scheme; at is inconsistent with the Act. It is therefore bad on the express terms of Section 19-A of the Act.
17. In fact retrospective application of many other provisions of the Scheme relating to the contribution cards and returns is quite impossible.
18. Fourthly, the order of 23rd October, 1957 requiring the company to pay not merely the employer's share of contribution but also the administrative charges is clearly illegal and inconsistent with the Act. Now the only provision for claiming administrative charges is to be found in Schedule 2 of the Employees' Provident Funds Act. By Rule 3 of Schedule II it is provided :
'The payment by the employer of such sums of money as may be necessary to meet the cost of administering the fund and the rate at which and the manner in which the payment shall be made.'
Provisions have been made for such administrative charges in the Scheme. Paragraph 39 of the Scheme says :
'The Central Government may in consultation with the Central Board and having regard to the resources of the, Fund available for meeting its normal administrative expenses, fix the percentage of administrative charges payable under sub-paragraph (1) of paragraph 38.'
Now paragraph 38 of the Scheme provides that 'the employer shall, before paying the member his wages in respect of any period or part of the period for which contributions are payable, deduct the employee's contribution from his wages which together with his own contribution as well as an administrative charge of such percentage of the total employer's and employee's contributions as may be fixed by the Central Government, he shall within fifteen days of the close of every month pay to the fund by separate bank drafts or cheques on account of contributions and administrative charge'.
On the face of this language, it seems that it is impossible to comply with these provisions retrospectively. Deduction from wages is clearly impossible in respect of employees who have left service in the last five years. The time for deduction is long past and the possibility of deduction has vanished. The relevant paragraph in the Scheme indicates as well as Rule 3 of Schedule II of the Act expressly says that the administrative clauses are intended 'to meet the cost of administering the fund'. For five years retrospectively there was in fact no cost of administration. I, therefore, cannot see how administrative charges can be required to be paid by an applicant when there is no administration in respect of the fund and no expenses incurred on the ground of such administration. Paragraph 38 of the Scheme expressly says that the employer shall before paying the member his wages deduct the employee's contribution. How can an employee retrospectively make such deduction in respect of a period already over and in respect of which the employee's wages have already been paid and more so when in some cases some of these employees have already gone out of the employment of the applicant. I am satisfied that in any event there cannot be retrospective administrative charges when there was no administration and when ex hypothesi there could be no 'administration. I shall only refer here to one more paragraph in the Scheme, that is paragraph 54 which bears on the question of expenses of administration. Paragraph 54 (2) of the Scheme indicates that these administrative charges are intended for 'the expenses of the administration'. When there was no administration there cannot be any expenses in connection therewith. The order, therefore, in so far as it directs the applicant to pay these administrative charges retrospectively is, in my view, clearly and plainly inconsistent with both the statute as well as the Scheme framed thereunder.
19. Fifthly, the order of 23rd October, 1957 bas also required the applicant to pay damages at the rate of 6 1/4 per cent per annum to the statutory fund. That is a strange order. It is stranger still in the context of the facts of the case and specially in the context of the Government's own attitude in the matter. Now Section 14-B of the Employees' Provident Funds Act provides :
'Where an employer makes default in the payment of any contribution to the Fund or in the transfer of accumulations required to be transferred by him under Sub-section (2) of Section 15 or in the payment of any charges payable under any other provision of this Act or of any Scheme or under any of the conditions specified under Section 17, the appropriate Government may recover from the employer such damages, not exceeding twenty-five per cent, of the amount of arrears, as it may think fit to impose.'
20. Now this power to recover damages is confined only to the cases of 'default'. The question of liability for damages of the employer only arises when the employer makes default. I do not think that on the facts of this case the employer can be said to have committed a default. The employer wrote to the Government. The Government writes back in answer that the Act will not apply. I have already quoted that correspondence. In fact the Government in this case availed of an inspection by their own inspectors under the express provision of the Act. By Section 13 of the Act the Government may appoint persons fit to be inspectors for the purposes of the Act or of any Scheme and the inspector is given powers which are enumerated in the section. On the Inspector's report it was expressly stated and admitted by the Regional Provident Fund Commissioner, West Bengal by his letter No. R-1077, dated 23rd March, 1953 that the applicant's factory did not come within the purview of the Employees' Provident Funds Act, 1952. In such a case as this I find it a little difficult to see how the employer makes a default, when the Government formally tells him that the Act did not apply to him. It is a little odd to find that when the Government by its own order under Section 19-A of the Act has to remove a difficulty, how there is default by the employer. Obviously there was a difficulty in applying the Act to this particular factory. Until that difficulty is removed, there cannot, in my opinion, be any question of default. That difficulty is removed only by the order of 23rd October, 1957. Therefore, on 23rd October, 1957 the difficulty whether the establishment was a factory engaged in the industry specified in Schedule 1 of the Employees' Provident Funds Act was removed by the order of the Central Government. Prior to that date, there cannot, in my opinion, be a default within the meaning of Section 14-B of the Employees' Provident Funds Act, 1952, so as to make the employer liable retrospectively for damages. This part of the order is again plainly inconsistent and in conflict with the statute. The language of Section 19-A of the Employees' Provident Funds Act is important. It expressly says :
'If any difficulty arises in giving effect to the provisions of this Act, and in particular, if any doubt arises as to
(i) whether an establishment which is a factory, is engaged in any industry specified in Schedule 1 etc., the Central Government may, by order, make such provision or give such direction, not inconsistent with the provisions of this Act, as appear to it to be necessary or expedient for the removal of the doubt or difficulty; and the order of the Central Government, in such cases, shall he final.'
The order o the Central Government is final only on the point decided as to whether the Act is to be applied to the factory or not. But when the Government wants to apply that order retrospectively, then it acts in a manner 'inconsistent with the provisions of this Act.' Power to recover damages under Section 14-B is expressly given only in the case 'where an employer makes default' etc. An employer cannot make a default when there is a difficulty or doubt and when the Central Government has to remove that difficulty or doubt by an express order. It is only from the date of the order removing such difficulty or doubt that the default can operate. In other words, there can be no retrospective or constructive default in the present context of facts and law.
21. Sixthly, the order of 23rd October, 1957 requires the applicant to pay both employers' and employees' share of contributions from 1st November, 1956 again together with administrative charges thereon and also with damages. That part of the order is equally bad for the same reasons already given by me.
22. Seventhly, the order of 23rd October, 1957 requires the applicant 'to transfer the past accumulation to the credit of the member employees as on 31st October, 1952'. This, again, is impossible to perform, and I think it is illegal to perform such a condition and such an order. Obviously, the Provident Fund moneys of those employees who have gone out of employment after taking their Provident Fund moneys within the last few years from 1952 to 1957, could not now be transferred. Yet the order says 'as on 31st October, 1952'. Since 31st October, 1952 and up to 23rd October, 1957 when the Government was making this order under Section 19-A of the Act, many empoyees have left after taking their Provident Fund moneys. Why should those moneys be again credited to the State fund retrospectively? For whose benefit is the State entitled to call for those funds? The purpose of the Act is to provide a fund for the employees. If the relevant employees have taken out their Provident Fund moneys, I do not think Government has any right to claim them back from the employers by virtue of the order 'as on 31st October, 1952.'
23. The transfer from existing funds is a subject of special provision in Section 15 of the Employees' Provident Funds Act, 1952. Section 15(1) of the Act entitles the employees to the benefits of any existing provident fund pending the application of the Act and the Scheme thereunder. Section 15(2) of the Act provides that 'on the application of any Scheme to an establishment the accumulations in any provident fund of the establishment standing to the credit of the employees, who become members of the Fund established under the Scheme shall, notwithstanding anything to the contrary contained in any law for the time being in force or in any deed or other instrument establishing the provident fund but subject to the provisions, if any, contained in the Scheme to be transferred to the Fund established under the Scheme, and shall be credited to the accounts of the employees entitled thereto in the Fund'. The language of Section 19-A of the Act is such that it does not lend itself easily to retrospective application. It gives power to the Central Government to remove difficulty or doubt. Until the doubt or difficulty is removed, there is little scope for putting such order in retrospective operation. The language of Section 15(2) is quite clear also. It begins with the words 'on the application of any Scheme'. Now the scheme can only apply after the doubt or the difficulty has been removed by an order under Section 19-A of the Act, and not before. It is only then that the Scheme applies, and not otherwise. It is only then that the employees can again be said to 'become members of the Fund' under Section 15(2) of the Act. Therefore, this part of the order also which requires the applicant to transfer the past accumulation to the credit of the member employees 'as on 31st October, 1952' is inconsistent with the Act and the Scheme and, therefore, cannot be sustained.
24. On the question of jurisdiction there was some objection on behalf of the Government at the beginning on the ground that no certiorari would lie against the Union of India, because the Union of India could not be said to reside within the jurisdiction of this Court. This is not a point which is relevant in this case, first because the claim for Certiorari has been given up by the applicant. The applicant is content to rely on its prayer for Mandamus. The order of 23rd October, 1957 is an order of the Regional Provident Fund Commissioner of West Bengal in Calcutta within the jurisdiction of this Court. It is true he is executing the order of the Central Provident Fund Commissioner in New Delhi, but that is immaterial. The Regional Committees are very important organs under the Scheme. It is the Regional Provident Fund Commissioner in West Bengal who alone has actually required the applicant by the order of 23rd October, 1957 to do certain things which the applicant contends to be illegal. This requisition is also signed by the Regional Provident Fund Commissioner who is within the jurisdiction of this Court. I have set out that order fully elsewhere in this judgment. I do not see why a Mandamus, cannot lie against him, within the jurisdiction of this Court, asking him to forbear from giving effect to the order and requisition dated 23rcl October, 1957 made by him. This Court has jurisdiction to issue a writ of Mandamus against a responsible officer within the jurisdiction of this Court who is alleged to be executing the illegal order or making the illegal requisition. This view which I am taking is supported by the: decision of the Supreme Court in A. Thangal Kundu Musaliar v. M. Venkatachalam Potti, : 29ITR349(SC) , specially at pages 1207 and 1212: ( : 29ITR349(SC) (E). Mr. Kar appearing for the Government referred to an unreported decision of an extempore judgment of Chief Justice Chagla in Chhaganlal Textile Milk (Private) Ltd., Bhopal v. P. A. Bhaskar, A. No. 109 of 1956 in Misc. Appln. No. 289 of 1956 (Born) (F). But then that decision is of no assistant to him because them the Government of India was not even a party. Here the Union of India is a respondent, is appearing through the same Counsel as the Regional Commissioner of West Bengal. In any event T think the Supreme Court has, in my view, laid down the principles sufficiently clearly in the case that I have quoted which supports the applicant's claim for a Writ or Mandamus against a responsible and high officer who is working within the jurisdiction of this Court.
25. For these reasons, I set aside the orderof 23rd October, 1957 and make the Rule forMandamus absolute by restraining the RegionalProvident Fund Commissioner, West Bengal, Calcutta, within the jurisdiction of this Court, andcalling upon him to forbear from giving effect tothe order and requisition dated 23rd October,1957 made by him. This application is disposedof on the terms of this order under Section 19-A of theEmployees' Provident Funds Act without decidingthe question whether the Employees' ProvidentFunds Act is unconstitutional on the ground ofexcessive delegation and without deciding thequestion whether Section 19-A of the Act is ultra viresand whether this particular industry at all comeswithin Schedule I of the Act. There will be noorder as to costs.