At, High Court of Gujarat At Ahmedabad
By, THE HONOURABLE MR. JUSTICE D.P. DESAI
By, THE HONOURABLE MR. JUSTICE J.B. MEHTA & THE HONOURABLE MR. JUSTICE S.H. SHETH
For the Appearing Parties: G.T. Nanavati, Y.S. Krishnan, Advocates.
(1.) The petitioner company has raised two questions in this petition:
(1) Whether the manufacture of clinical thermometer falls under the entry of Electrical Mechanical or general engineering products specified in Schedule I of the Employees Provident Funds Act. 1952 hereinafter referred to as the Act when read with Item (18) of Explanation (a) mathematical and scientific instruments and
(2) Whether the decision of the Central Government under see. 19A resolving a doubt in this connection only on November 7 1958 could be implemented retrospectively prior to the date of the decision from August 1 1965 as intimated by the authorities. The petitioner companys factory was set up on August 1 1962 with Japanese collaboration and commercial production started in 1965. By a letter of respondent No. 2 the Regional Provident Fund Commissioner dated September 4 1965 the petitioner was asked to implement the Act and the Scheme. Thereafter the company took up the matter for resolving doubt on this question. The letter of the company dated December 13 1967 was considered by the Central Government and after hearing the Company the Central Government gave a decision on November 7 1968 at Annexure B holding that the petitioners factory was set up on August 1 1962 and that the manufacture of clinical thermometers fell under the scheduled industry item general engineering products when read with item (18) of Clause (a) of the Explanation to the said Schedule therefore the Central Government issued direction under sec. 19A that the petitioners establishment was set up on August 1 1962 and was engaged in the scheduled industry clinical thermometer or general engineering production. Respondent No. 2 the Regional Provident and Commissioner by the letter dated November 19 1968 called upon the company to implement the Act as the establishment was covered under the Act with effect from August 1 1966 and this action of the authorities is challenged by the petitioner in this petition on the aforesaid two grounds. Initially the petition had come up for hearing before the Division Bench consisting of Divan and M. U. Shah JJ. on February 18 1971 The Division Benches however referred the entire matter to the larger Bench as it considered that the earlier decision of the Division Bench in Ashok Prakashan Limited Special C.A No. 255 of 1962 decided on February 8/9 1967 by the Division Bench consisting of Miabhoy C. I. and A. D. Desai J. when they took the view that the authorities were not powerless to act in the matter simply because of the existence of a dispute under sec. 19A before the Central Government had not considered the relevant provisions of sec. 14(2A) which created absolute criminal liability with penalty of imprisonment and the provisions of sec. 157 of the Land Revenue Code as because of sec. 8 read with sec. 14B for recovery of the amount due with damages coercive process under the Land Revenue Code could be also resorted to. That is why the Division Bench did not conclude even the first question and referred the entire matter which has now come before us.
(2.) As regards the first question the question of interpretation of the relevant scheduled entry has to be resolved as per the legal position which is now well settled after the decision in The Regional Provident Fund Commissioner Punjab v. Shibu Metal Works A.I.R. 1965 S.C. 1076 where this relevant entry of electrical mechanical or general engineering products and the Explanation (a) added in 1953 had been interpreted in the context of an undertaking manufacturing brass utensils. At the outset their Lordships pointed out at page 1079 that the object of the Act clearly was to proceed to make provision for the provident fund for the benefit of industrial employees in a cautious and pragmatic manner and that explains how and why the Central Government has slowly and gradually but progressively been expanding the scope of the applicability of the Act to different branches of industry. The process of making additions to Schedule I has been proceeding apace and one has merely to look at the items which have been listed in Schedule I by several additions At page 1080 their Lordships pointed out the settled principle of construction of such a measure intended to serve beneficent purpose that if two constructions were reasonably possible the broader construction must be preferred to the narrower one which would help furtherance of the object. While referring to this Schedule I Entry in question their Lordships pointed out at page 1080 that it was the character of the industrial activity carried on by the undertaking in question which had to be determined and the question was not so much as to what was the product produced as what was the nature of the activity of the undertaking concerned. Therefore for the purpose of determining the content of the entry the relevant question to be posed was whether the undertaking in question was engaged in the manufacture of the products in question 7 Thereafter their Lordships referred to the term engineering as per the Encyclopedia Britannica Vol. 8. As per the dictionary definition to engineer means to act as an engineer or to employ the art of the engineer upon to construct or manage as an engineer. The expression was originally confined to military engineering as in its early uses it referred to the operations of those who constructed engines of war and executed works intended to serve military purposes. But about the middle of 18th century the term was given a wider application. Civil Engineering were sought to be distinguished which consisted in the art of directing the great sources of power in nature for the use and convenience of man. thereafter their Lordships illustrated various uses of civil engineering and indicated special separate branches as for example civil mining and metallurgical electrical chemical aeronautical and industrial. There were also other less clearly defined branches of engineering such as sanitary structural drainage hydraulic highway railway electric power electrical communication steam power internal marine welding production petroleum production fire protection safety architectural nuclear and management or administrative engineering as stated in that volume at page 448. Their Lordships also pointed out that the term general engineering cannot be given wide connotation in its general comprehensive sense because in that event electrical and mechanical engineering would not have been separately referred to. Therefore the expression general engineering was interpreted as not including electrical or mechanical engineering which were specifically mentioned in the entry and it also did not include other branches of engineering which were known by specific or special titles which were indicated in the aforesaid passage from Encyclopedia Britannica. Turning to the relevant addition of Explanation (a) in 1953 their Lordships pointed out that the purpose of this Explanation was to clarify illustrate and expand the content of the entry in question in order that there should be no doubt as to the classes and categories of industry which were brought within the purview of the Act. At page 1081 their Lordships refused to accept the suggested construction of the product in the commercial sense as the product which will be used in or meant for electrical engineering mechanical engineering or general engineering. Similarly the other extreme contention was negatived that the crux of the entry was the nature of the process of production. At page 1082 their Lordships held that the proper way to determine the content of that entry was to hold that all products which were generally known as electrical engineering products or mechanical engineering products or general engineering products were intended to be covered by that entry and the object of Schedule I was to include within the scope of the Act every industry which was engaged in the manufacture of electrical engineering products mechanical engineering products or general engineering products. That was the question to be posed in every case in considering the question whether the product fell in the category of general engineering product general engineering being construed in a limited sense as indicated above. It may be that in a large majority of cases the products included within the entry might be produced by electrical mechanical or general engineering process; but that was not the essence of the matter. The Industrial activity which manufactured the three categories of products already mentioned therein brought the industry within the scope of Schedule I and therefore attracted the application of the Act. Their Lordships also pointed out that when clause (a) of the Explanation is seen it would appear that items 1 to 6 could be said to be electrical engineering products 7 to 10 might to said to be mechanical engineering products and the rest were general engineering products. Although the inclusion of each one of these items in clause (a) of the Explanation could not be easily explained on the whole the object of the Explanation was found to be to clarify illustrate and expand the content of that entry so that there could be no doubt left as to the classes or categories of industry which were intended to be brought within the purview of that Act. Therefore manufacture of brass utensils was regarded as an activity the object of which was to manufacture general engineering products. In view of this settled legal position so far as this manufacture of clinical thermometers is concerned Mr. Krishnans arguments can never be accepted that it is not an engineering product. As pointed out in Encyclopedia Brittanica at page 397 the engineering is creative application of scientific principles in design development or construction of machinery apparatus etc. Therefore such scientific instruments like clinical thermometers which record human temperature with accuracy and precision and which are manufactured after scientific planning and design by creative application of scientific principles in construction thereof would be engineering products. It is not an electrical or a mechanical engineering product. It is not even Mr. Krishnans case that it is a product of any specialised branch of engineering which is specifically mentioned in the aforesaid passage of Enclyopaedia Brittanica. Therefore the undertaking which manufactures such clinical thermometers is engaged in the manufacture of only a general engineering product.
(3.) Mr. Krishnan vehemently argued that the only case he was called upon to meet with was whether this was a scientific instrument and that is the decision reached by the Central Government. Mr. Krishnan has really met the case put up by the authorities that the petitioners undertaking was engaged in the manufacture of such a general engineering product when read with the relevant item (18) in Explanation (a) viz. mathematical and scientific instruments. The scope of the Explanation (a) is really to clearify illustrate and expand the content of the entry. That is why the Explanation starts with the words without prejudice to the ordinary meaning of the expressions used therein which clearly shows that the various items mentioned in Explanation (a) are only illustrative and not exhaustive. The content of the original entry in case of doubt can be clarified illustrated and expanded when necessary by resort to the Explanation in clause (a). But the Explanation could never be utilised for cutting down the ordinary import of the entry itself because the whole Explanation (a) is without prejudice to the ordinary meaning of the expression used in this relevant entry.
(4.) Mr. Krishnan relied on the intrinsic evidence in Explanation (a) of the entry No. 23 of cutlery and surgical instruments which would hardly be of any use to cut down the wide import of mathematical and scientific instruments in entry 18 especially when they clearly and with out any doubt fall under the ordinary content of the genus general engineering products. The assumption of Mr. Krishnan was that only surgical instruments being covered under the other entry 23 the other medical appliances like clinical thermometers could not fall under the wider class of scientific instruments. The clear import of scientific instruments which are a result of constructive engineering skill applied to produce such scientific instruments of accuracy and precision is sought to be cut down on mere assumption by resort to a wholly extrinsic aid of another legislation where surgical instruments were put under the heading of medical appliances while scientific and industrial instruments were classified separately in a totally different context for a totally different purpose and where there was no such genus like general engineering products.
(5.) Mr. Krishnan next resorted to this external aid for giving restrictive interpretation to this term scientific instruments in the entry (18) in Explanation (a) by referring to the First schedule to the Development and Regulation Act 1951 Under sec. 2 of that Act the Parliament had declared that is was expedient in the public interest that the Union should take under its control industries specified in the first schedule. The first schedule covers any industry engaged in the manufacture or production of any or the articles mentioned under each of the following headings or sub-headings namely:
Entry 14: Medical and Surgical Appliances: Surgical instruments sterilisers incubators and the like.
15 :Industrial Instruments: (1) Water meters steam meters electricity meters and the like. (2) Indicating recording and regulating devices for pressure temperature rate of flow weights levels and the like. (3) Weighing machines.
16 :Scientific Instruments: Scientific Instruments: This extrinsic aid which was sought to be resorted to by Mr. Krishnan could hardly be permissible if we keep in mind the fact that this Act is a measure for totally different purpose of development and regulation of the scheduled controlled industries whose control was taken over by the Union as it was expedient to do so in the public interest. While specifying the controlled industries in Schedule I that classification was made on the basis of any industry engaged in the manufacture or production of any of the articles mentioned under each of the following headings or sub-headings in the first schedule. General engineering products industry is not even to be found in this schedule. Even out of the Item 14 under the heading Medical and Surgical Appliances the articles specified under that heading are surgical instruments sterilisers incubators and the like and scientific instruments as distinguished from other Industrial instruments from the subject of entry 16. The classification there was in the context and purpose of that Act while the classification in the first Schedule of the present Act is in a totally different context of enacting such labour welfare measure to provide for the institution of provident fund for the employees in such factories which are specified in Schedule I. That is why the classification is totally different and with different purpose and the two statutes are note in pari materia. In State of Punjab v. Okara Grain Buyers Syndicate A. I. R. 1964 S.C. 669 at page 684 their Lordships pointed out that unless there was ambiguity it would be impermissible to refer to any previous legislation for construing words in it. In such circumstances there would be no scope for invoking this external aid to the construction of the expression used in the Act. In that case the original Act of 1948 was Displaced Persons (Institution of Suits) Act 1948 and 1951 Act was the Displaced Persons (Debts Adjustment) Act they were widely different and the latter Act had a definitely more extended scope and was designed to secure substantial advantages to displaced persons which were wholly foreign to the earlier law which was but of very limited scope. Their lordships held that even if the language used in the two enactments were identical which was not even the case there the same conclusion would not necessarily follow having regard to the differing scopes of the two pieces of legislation. It could not therefore be said that the two Acts were in pari materia so as to attract the rule relied on. Besides the rule of construction which was certainly not one of a compelling nature was generally adopted in the construction of consolidating enactments where provisions which had appeared in earlier repealed statutes which had received an uniform and accepted judicial interpretation were re-enacted. That being not the case this extrinsic aid could not be pressed in service. Their Lordships further pointed out that even the consideration of hardship which would be caused to the particular displaced creditors would be relevant if the terms of the enactments were ambiguous and where choice had to be made between the two rival constructions. Therefore when the Act was not ambiguous the question of hardship would not be material for the decision. Even in . where the question was whether the coal in the sales tax statute should include charcoal their Lordships pointed out that it was a well settled principle that in construing a word in an Act caution was necessary in adopting a meaning ascribed to that word in other statutes As Lord Loreburn stated in Macbeth v. Chislett 1910 A. C. 220 (224):
"t would be a new terror in the construction of Acts of Parliament if we were required to limit a word to an unnatural sense because in some Act which is not incorporated or referred to such an interpretation was given to it for the purposes of that Act alone".
The strict sense in which such a word was to be found in another statute might mean etymological or scientific sense and would not in the context of another statute be applicable. Therefore as per the settled legal position when the two Acts are not in pari materia and when the earlier Act is not incorporated in the latter Act and when the words in that classification were used for a totally different purpose and had not been interpreted even for the purposes of that Act reference to that scheme would be completely an irrelevant extrinsic aid to the construction of the present statute. Statutory language has already been interpreted by their Lordships as to what is the general engineering product. When the clinical thermometer which is obviously scientific instrument without any scope for ambiguity falls even within this description of general engineering product as per the interpretation given by their Lordships in the present Act as per the true content of that entry and when the Explanation in clause (a) which merely seeks to clarify and illustrate the content of this entry so as to leave mn scope for doubt has in terms included a scientific instrument there would be no scope for adopting a restrictive construction canvassed by Mr. Krishnan. The expression scientific instrument having been specified in the Explanation (a) looking to the object of the explanation that term could only illustrate explain and even expand the content of the term general engineering product but it could never be used so as to cut down the import of that term. The Central Government under this sec. 19A (i) has been left with the statutory question as to whether this factory was engaged in this relevant industry specified in Schedule I of general engineering products as explained under Item (18) of the Explanation viz. mathematical and scientific instruments and therefore when the authoritys decision on this statutory legal question is as per the settled legal position and is not shown to be perverse or proceeding on a plain misconception of law the decision could hardly be assailed in this petition. Therefore the first contention raised by Mr. Krishnan must obviously fail.
(6.) As regards the second question it would be proper at the outset to consider the relevant provisions of the Act. Under sec. 1 (3)(a) subject to the provisions contained in sec. 16 it applies to every establishment which is a factory engaged in any industry specified in Schedule I and in which twenty or more persons are employed. Under sec. 16 the exceptions which is carved out by providing an infancy protection in sec. 16 (1)(b) is that the Act shall not apply to any other establishment employing fifty or more persons or twenty or more but less than fifty persons until the expiry of three years in the case of the former and five years in the case of the latter from the date on which the establishment is or has been set up. There is no dispute so far as the first question has been settled by the Central Government that this factory of the petitioner was set up in August 1 1962 and in view of the number of employees which it employed being more than 50 it had only three years infancy protection. Therefore by reason of sec. 1 (8)(a) read with sec. 16 (1) (b) the Act immediately when this period of infancy was over began to apply to the petitioners factory. When the first question is answered against the petitioner by holding that this factory manufacturing clinical thermometer was engaged in the industry specified in Schedule I and in which twenty or more persons were employed under the terms of the statute as soon as the infancy period was over the exemption which was granted under sec. 16 (1) (b) to an infant industry ceased to operate and the Act became applicable to the petitioners factory. There is also no dispute that the scheme for this scheduled industry has come in force right from September 1 1952 under sec. 5. Sec. 5 is a crucial section. Sec. 5(1) provides as under :
"he Central Government may by notification in the Official Gazette frame as cheme to be called the Employees Provident Fund Scheme for the establishment of provident funds under this Act for employees or for any class of employees and specify the establishments or class of establishments to which the said Scheme shall apply and there shall be established as soon as may be after the framing of the Scheme a Fund in accordance with the provisions of this Act and the Scheme"
Under sec. 5(2) such a scheme framed under sub-sec. (1) may provide that any of the provisions shall take effect either porspectively or retrospectively on such date as may be specified in this behalf in the scheme. Therefore once this scheme had been framed by the Central Government with effect from September 1 1952 known as Employees Provident Fund Scheme for establishment of the provident fund under the Act for employees in this particular class of establishment which was specified in this relevant scheduled entry sec. 5(1) created a mandatory obligation that after this scheme was framed the Fund had to be established in accordance with the provisions of the Act and the scheme. The relevant exemption in the present case was only sec. 16(1)(b) during the infancy period of three years and therefore with effect from August 1 1965 the company was bound under the statute to introduce this provident fund as the Act and the Scheme became applicable to the petitioners factory. Sec. 6 provides how the contributions of the employer and the employers shall be made in the manner provided for in the scheme after making the persons who are eligible members in this provident fund scheme as mentioned in para 26 of the scheme. Sec. 7A provides in clause (1) that the Central Provident Fund Commissioner any Deputy Fund Commissioner may by order determine the amount due from any employer under any provisions of this Act and for this purPose may conduct inquiry in this connection. The powers are conferred on him which are normally vested in a civil Court in respect of the matters specified and such order is to be made after giving reasonable opportunity to the employer to be heard. Under sec. 7A(4) the order made for determination of moneys due from an employer under sec. 7A is made final and is not to be questioned in any Court of law. Sec. 8 provides for mode of recovery of moneys due from employers by providing that all such moneys due in respect of contributions payable to the fund or damages recoverable under sec. 14-B or other amounts specified in the various provisions shall be recovered by appropriate Government as land revenue. Sec. 14-B provides for recovery of damages where an employer makes default in payment of any contribution to the fund for in the payment of any charges payable under any other provision of this Act or any scheme not exceeding twenty five per cent of the amount of arrears as the appropriate Government may think fit to impose. Sec. 14 dealing with penalties provides in clause (1) that where for the purpose of avoiding any payment to be made by himself under this Act or the scheme or of enabling any other person to avoid such payment knowingly makes or causes to be made any false statement or false representation shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both. Sec. 14 (2-A) which is material enacts as under:
"hoever contravenes or makes default in complying with any provision of this Act or any condition subject to which exemption was granted under sec. 17 shall if no other penalty is elsewhere provided by or under this Act for such contravention or non-compliance be punishable with imprisonment which may extend to three months or with fine which may extend to one thousand rupees or with both".
It should be noted that para 76 of the scheme provides punishment for failure to pay contributions under the scheme or for contravention or non-compliance with any provisions of the scheme by way of imprisonment which may extend to six months or with fine which may extend to one thousand rupees or with both. Therefore unlike sec. 14(1) which introduces the concept of knowingly making false statement or false representation so far as sec. 14(2) or 14(2A) are concerned penal liability is in absolute terms on contravention or default in complying with the scheme or the provisions of the punishment would be to the extent of six months imprisonment or with fine which may extend to Rs. 1000 or both. The coercive recovery under Land Revenue Code is permissible for contribution and administrative charges and damages under sec. 14-B because of sec. 8 which enables recoveries of these dues as arrears of land revenue. Of course the defaulter when he is proceeded with by coercive recovery process under the Land Revenue Code would have the benefit of those provisions under which he would not be arrested if he paid up the amount in question. Thereafter the material provision is sec. 19A for removing doubts and difficulties. It reads as under:
Power to remove difficulties:-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 engage in any industry specified in Schedule I (ii) whether any particular establishment is an establishment falling within the class of establishments to which this Act applies by virtue of a notification under clause (b) of sub-sec. (3) of sec. 1; or (iii) the number of persons employed in an establishment or (iv) the number of years which have elapsed from the date on which an establishment has been set up; or (iv) whether the total quantum of benefit to which an employee is entitled has been reduced by the employer the Central Government by order makes 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 be final. The five statutory issues which are referred to in sec. 19A in respect of which the doubt can be particularly resolved by the Central Government are all issues which really arise in connection with the initial implementation of the scheme for even in respect of dispute as to the number of employees it is obvious from sec. 1(5) that an establishment to which this Act applies shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time falls below twenty In Ramnarain and Co. v. Union of India 13 G.L.R. 189 vires of these provisions was upheld by the Division Bench consisting of myself and D. A. Desai J. on the ground that the power was delegated to the Central Government under sec. 4 to extend the Act by amending the Schedule of industries and by notifying from time to time the class establishments covered by the Act under sec. 1(3). Therefore in such a measure of social justice where the dispute had to be resolved in connection with the initial implementation of this Act in form of these five statutory issues so that the statute did not remain a dead letter and the benefits of this benevolent measure reached the employees as expeditiously as possible the legislature had left this function also to the expert body i.e. Central Government which was to decide the doubt or difficulties so that the Act could be speedily implemented. The Central Government has to exercise this power as per the various restrictions or norms laid down in the statute like any other judicial power and within the four corners of the Act and therefore it was such quasi-judicial power which could never be assailed as arbitrary or unreasonable power without any guidelines. Therefore the vires was upheld under Articles 14 and 19(1)(g) of the Constitution. It was further pointed out at pages 192-193 that there was no delegation of the legislative powers in this connection as it was the quasi-judicial function which was delegated to the Central Government and therefore the legislature had not abdicated its function. The delegation in such context was only of the quasi-judicial function to the Central Government instead of leaving it to the ordinary Courts. It was further pointed out while distinguishing the decision in Jalan Trading Co. v. Mill Mazdoor Sabha A.I.R. 1967 S.C. 691 (703) that the power conferred on the Central Government to pass any order was not in so wide term as in sec. 37 of the Payment of Bonus Act 1965 which was struck down by their Lordships because the Central Government could pass any order which was not inconsistent with the purposes of the Act. The purpose of the P_onus Act was to make payment of the bonus to the employees. Such a power could go beyond the scope of the Act and in Central Government could have passed contrary order or in modification of the Terms of the Act. This is not the position so far as the present sec. 19A is concerned as it was not in pari materia or in the same wide terms. In fact the Central Governments powers were restricted as sec. 19A required the Central Government to pass only such direction which was not inconsistent with the Act. It is on this ground that sec. 19A was held to be intra vires by this Court.
(7.) We should further bear in mind the fact that sec. 19A was introduced by the amendment. Originally such a dispute would have to be resolved to by the Civil Courts with the consequent delay and the necessary conflict of decisions. Therefore this expert body which was entrusted with the task of extending the Act progressively to various industries and establishments was also entrusted with this statutory function of resolving doubt and difficulties particularly in respect of these five statutory issues under sec. 19A so that the Act would not remain a dead letter and it would be expeditiously implemented. Once it is kept in mind that the Central Government is delegated not with any legislative function but only with quasi-judicial function by giving finality to its decision it is obvious that such a quasi-judicial decision would only be a declaratory judgment which resolves dispute as to certain relevant facts or the question between the parties by removing doubt or difficulty which existed. The relevant doubt may be as to whether a particular factory or establishment is covered under Schedule 1 or under the relevant notification under sec. 1(3)(b) or whether twenty or more persons were employed by such establishment or as to the number of years which have elapsed from the date on which an establishment has been set up or whether the total quantum of benefit to which an employee is entitled has been reduced by the employer. The adjudication of the Central Government only decides these relevant facts or the statutory questions entrusted to this special authority. The decision would only set at rest the doubt which had existed or was sought to be created But the implementation of the Act would still depend on the terms of the statute. Once the infancy protection had ceased the Act automatically applied if the relevant statutory requirement of its being a Scheduled factory employing twenty or more persons was satisfied under sec. 1(3)(a) Under sec. 19A the Central Government could not give inconsistent directions contrary to the terms of the statute that even when the Act applied after the infancy period by force of sec. 1 the provident fund shall not be introduced under sec. 5 by making eligible persons members of the fund and that no contribution shall be made under sec. 6. It is well settled on the Blackstonian theory that decisions of Courts are always retrospective subject to the modern approach of prospective overruling which power is reserved only by their Lordships in this country after Golaknaths decision in A.I.R. 1967 S.C. 1643 (196668 because Courts only declare the law. If the same function of deciding these statutory issues as to the relevant facts on which the question of applicability of the Act turns is left by this statutory amendment in sec. 19A now to the Central Government this decision of the Central Government would only operate as a final adjudication of this statutory question and that decision is made final under the Act. If the mischief which the Legislature had in mind and which it sought to remedy by enactment of sec. 19A is to be kept in mind it is obvious that sec. 19A could never be inter preted so that until the question is decided by the Central Government under sec. 19A the Act ceases to be applicable.
(8.) The object behind the enactment of sec. 19A was to provide this remedy as the usual remedy of a Court adjudication was dilatory. In Ogles case A. I. R. 1971 S.C. 2577 (2589) it has been held that the employer can resort to this remedy in case of such doubt as to the implementation of the Act. There is nothing compelling in this context to impute an intention to the Parliament that it was making such a radical alteration in law when it was providing this remedy for resolving such a doubt or difficulties. Such a construction would defeat the intention of the Parliament by making the statute a dead-letter during the period that this quasi-judicial machinery under section 19A was invoked.
(9.) This is really a problem of statutory construction which must be resolved in the light of the settled principles of construction. In Income-tax Commissioner Patiala v. Shahzada Nand and Sons A.I.R. 1966 S.C. 1342 at page 1344 their Lordships pointed out the settled rule of construction that the expressed intention must guide the Court. This fundamental rule of construction is the same for all statutes-whether fiscal or otherwise. The underlying principle is that the meaning of the statute must be collected from the plain and unambiguous expression used therein rather than any notion which may be entertained by the Court as to what is just and expedient. It is only in case of conflict between the general and special provision that the latter is allowed to prevail on the maxim Generalis Specialibus non-derogant. Even that rule of construction as pointed out by their Lordships is not of universal application. It is subject to the condition that there is nothing in the general provision-express or impliedindicating an intention to the contrary. Their Lordships also pointed out that when the words of section are clear but its scope is sought to be curtailed by the construction the approach suggested by Lord Coke in In Re Heydons case (1584) 3 Co Rep. 7 yields better results. To arrive at the real meaning it is always necessary to get an exact conception of the aim scope and object of the whole Act: to consider according to Lord Coke: 1 What was the law before the Act was passed; 2. What was the mischief or defect for which the law had not provided; 3. What remedy parliament has appointed; and 4. The reason of the remedy. There is also a presumption against implied alteration of law because the Legislature would never introduce such a radical change covertly but only by express langgauge as it has been held in the case of Empress Mills A.I.R 1958 S.C. 341. It is only when the statutory language is ambiguous so that two constructions are possible one of which advances the purpose of the statute as against the narrow construction which defeats it that a choice of accepting the wider interpretation arises. But it is equally well settled that the plain meaning or language of the statute cannot be modified by the Court except in cases where there is inconsistency or absurdity on any supposed notions of hardship or injustice (See Mahadeolal v. Administrator General W. B. A.I.R. 1960 S.C. 933 (939). If we approach this problem on these settled principles there is nothing compelling in the context which could permit the court to rewrite the statutory language of the Act as sec. 1(3)(a) is made subject only to sec. 16 and not to sec. 19A. So also in sec. 5(1) once the scheme is specified by statutory notification for any class of establishment the scheme shall apply from the date specified therein under sec. 5(2) which in the present case for the relevant industry was September I 1952 And once this scheme applies a provident fund has to be established in accordance with the provisions of the Act and the scheme under sec. 5(1) the crucial section of the Act. Therefore the mandatory obligation which is created by the Act and the Scheme is that as soon as infancy period is over under sec. 16(1)(d) the Act becomes applicable and the scheme having been applied from September 1 1952 the provident fund should be established in accordance with the Act and the Scheme. The implementation of the Act and the Scheme could not be suspended by reason of sec. 19 On the contrary there is intrinsic evidence in sec. 19A in the key words that the direction of the Central Government under sec. 19 shall not be incosistent with the Act and therefore it is really sec. 19A which is subject to these relevant provisions. Therefore such clear unambiguous language of the Act creating such mandatory obligation could never be modified when there is nothing shown compelling in the context either byway of an ambiguity absurdity or inconsistency. The suggested construction would not only have the fault of redundancy by making there key words in sec. 19A on the basis of which its vires was upheld surplus and of no effect but it would be against the settled statutory presumption of Parliament making such a radical change so covertly and it would defeat the object of the amendment of sec. 19A and would not advance in any manner the purpose of the Act which is to see that the benefits of the labour welfare measure reach as expeditiously as possible to the concerned employees.
(10.) The assumed consideration of hardship is even not one of real hardship at all and in fact as pointed out by us in the aforesaid decision in State of Punjab v. O.G.B. Syndicate A.I.R. 1964 S.C. 669 at page 684 unless the statutory language is ambiguous the question of hardship would be wholly irrelevant. The present case is an apt illustration which would show what a prudent employer should do in such cases by implementing under protest the Act and the Scheme during the period when the matter is pending such quasi-judicial adjudication under sec. 19A. If the employer acted so prudently there would be no question his being required to implement the scheme with any back effect or to meet with other difficulties because the employees had left or because the employees contribution could not be recovered or because he had not implemented the scheme by contributions to the Fund. Recovery would be of only those amounts which he paid under protest and so there would be no default. Therefore the employer cannot plead such difficulties which are of his own creation. In any event on such supposed considerations of hardships it is not permissible to modify plain and unambiguous language.
(11.) In this context it was vehemently argued that such serious consequences as of absolute liability for default could not have been intended by the Legislature and such a construction must be avoided. It is true that sec. 14-B gives power to recover damages to the extent of 25% of the amount of arrears when default has been made. When the object of the scheme is to see that the employer paid up the amounts due under the Fund whether by way of contributions or administrative charges or damages it is obvious that this penal provision is in the nature of enforcing this civil liability for seeing that the employer implements this provision. Sec. 8 enables coercive recovery of moneys due from the employers under the Land Revenue Code as arrears of land revenue and so that coercive process is only to enforce civil liability. Finally secs. 14(2) and 14 (7A) had been vehemently relied upon where unlike secs. 14(1) which requires some element of mens rea of knowingly making a false statement or false representation penal liability is made absolute in respect of the contravention of the scheme if provision exists as in para 76 of the scheme; or under sec. 14(2A) for contravention of any provision of the Act or any default or non-compliance of any provision of the Act for which no penalty is elsewhere provided. This penal provision is of course absolute. To construe the expression default or contravention otherwise then as an absolute obligation would be completely to render the statute ineffective in the context of such civil liability to make contribution and payment as required under the scheme of the Act. This penal provision is not truly criminal in nature but is really a quasi-criminal provision and its object is to enforce under a penal sanction a civil liability. The penality which is provided is only to the extent of three to six months imprisonment or a fine to the extent of Rs. 1000/or both. Therefore looking to the minor character of this offence the nature of penalty provided and the whole context of this Act as per the settled principles the obligation must be spelt out to be absolute one In State of Gujarat v. Devendra Prasad Pande A.I.R 1971 S.C. 866 at page 869 their Lordships pointed out the normal presumption that some element of mens rea should be imported into the definition of the crime unless a contrary intention is expressed or implied. The mens rea meant some blameworthy mental condition whether constituted by knowledge intention or otherwise. There were however certain recognised exceptions. The three principal exceptions were pointed out by their Lordships as laid down by Wright J. in Sherras v. De Rutzen (1895) 1 Q B 918. One was a class of acts which were not criminal in any sense but were acts which in the public interest were prohibited under a penalty. Another class comprehended some and perhaps all public nuisances. Lastly there might he cases in which although the proceeding was criminal in form it was really only a summary mode of enforcing a civil right. But except in such cases as these there must in general be guilty knowledge on the part of the defendant or of someone whom he has put in his place to act for him generally or in the particular matter in order to constitute an offence. Sec. 35(1) of the Public Trusts Act which was interpreted by their Lordships was held to be falling within the exceptional class of quasi-criminal acts. Their Lordships also referred to the latest decision of the House of Lords in Sweet v. Parsley (1969) 2 WLR 470 where Lord Reid had in terms pointed out the settled practice to recognise absolute offences in this exceptional class of quasi-criminal acts. Their Lordships also referred to the decision in Ravula Hariprasada Rao v. The State A.I.R. 1951 S.C. 204 where the liability imposed under clause 27 (4) of the Motor Spirit Rationing Order 1941 was held to be an absolute liability even though Rule 81 (4) of the Defence of India Rules which provided for the imposition of penalty enacted that if any person contravenes any order made under this rule he shall be punishable with imprisonment for a term which may extend to three years or with fine or both. Their Lordships pointed out that the object of clause 27A clearly was that the supplier of petrol should set up complete machinery to ensure that the necessary endorsements were made on the coupons against which petrol was supplied. In many cases the default would be committed by the servants of the supplier who were in charge of the petrol pump but that fact by itself would not exonerate the supplier from liability. Their Lordships in terms held that in the context the Court must have regard to the object of the statute the words used the nature of the duty laid down the person upon whom it was imposed the person by whom it would be in ordinary circumstances performed and the person upon whom the penalty was imposed. It was in terms held by their Lordships: If we hold that there must be a personal knowledge in the licensed person we should make the enactment of no effect. Their Lordships had pointed out that Wright J. had followed the view expressed by the Lord Chief Justice of England in Brend v. Wood (1895) 1 Q.B. 921 when he said :
"It is in my opinion of the utmost importance for the protection of the liberty of the subject that a Court should always bear in mind that unless the statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime. a defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind".
These observations however would not apply as pointed out by their Lordships when the offences were of that exceptional class of a comparatively minor character or of the type of quasi-criminal offence or where penal section was provided to enforce only a civil liability The sentence provided by the penal provision is only of such minor character that it could never be contended in the present case that making of an absolute obligation would be unreasonable in the context of such a special measure. In the context of Gujarat Beedi Karkhana Owners Association v. Union of India 12 G.L.R. 690 the Division Bench consisting of myself and D. A. Desai J. at page 722 in terms has taken the same view that the absolute liability without fault was now a settled norm in so far as the industrial or factory legislation is concerned which involved considerations of public welfare in general and labour welfare in particular. The essential nature of such provisions also must not be forgotten that they impose a quasi-criminal liability. The penal sanction sought really to enforce only the civil rights. It was this penal sanction which in the context of such legislation secured proper enforcement and greater degree of care being exercised by the ultimate employer who could be reasonably expected to reasonably influence and control his servants or his agents. The whole object of this labour welfare legislation would be frustrated if the liability for compliance in such cases was not held to be absolute. This ultimate employer alone was the real master of the business and had the real control of the business who could be properly held liable even vicariously so that he could exercise a greater degree of care in respect of his agents and servants by seeing that the benefits of this welfare measure duly reached the aggrieved class of workman. Dean Roscoe Pound in his book The Spirit of the Common Law at page 52 has said: Such statutes are not meant to punish the vicious will but to put pressure upon the thoughtless and inefficient to do their whole duty in the interest of public health or safety or morals. The employer was expected under such a statute to tighten his organisation and he was a person who may keep the organisation to the mark and therefore there was a moral justification of making a statutory obligation absolute and therefore as per the settled principles the relevant penal provisions of the Act must be treated as creating an absolute obligation. Even on that footing there is nothing compelling in this context which would require us to modify the plain statutory language of the Act by holding that during the period that sec. 19A machinery invoked for resolution of the doubt as to the initial implementation of the Act the Act and the Scheme would not come into operation. If this obligation was really of a criminal nature or the severity of sentence imposed on the subjects liberty is unreasonable restraint what we would have to construe would be the true sense of the absolute nature of this obligation and in that event we would have to modify the rigour of this absolute obligation. That would not however justify such an illogical approach as to cut down the plain import of the statute because the obligation underlying the penal provisiOn is absolute in the context of such quasi-criminal offences or when the penal section is only to see that the civil liability is duly discharged by the employer by making payment. As we have pointed out earlier the employer can pay under protest and then he would have hardly any hardship. Therefore on the first principles of statutory construction we find nothing compelling in the context to modify the said statutory language in the present case and to hold that the Act and the Scheme which came into force remained suspended during the period that sec. 19A machinery was invoked.
(12.) Turning to the authorities the argument that appealed to Deshpande J. of the Delhi High Court in Wire Knitting Stores Case 1970 Labour and Industrial Cases 1249 was that sec. 19A served a double purpose of a quasi-judicial adjudication function in some cases and of rule making function in cases where there was uncertainty or doubt. The second type of function which was involved in such an adjudication by the Central Government under sec. 19A was really analogous to rule making power and therefore must have prospective effect. This was the observation made while considering vires of sec. 19A. This reasoning ignores the key words in sec. 19A on the basis of which this Court upheld its vires and the fact that the function entrusted to the Central Government is in this context only a quasi-judicial function which prior to the enactment of sec. 19A would have been performed by ordinary Courts. The learned Judge also with great respect paid no regard to the statutory presumption against any such implied alteration of law or to the settled principles of construction which would never permit the Court to modify plain unambigious statutory language. The argument that appealed to the Rajasthan High Court in Mahavir Metal Manufacturing Company v. Regional Provident Fund Commissioner I.L.R. 1969 Raj. 386 was that sec. 5(1) the crucial section of the Act contemplated that the notification issued by the Central Government framing the scheme must specify the establishment or the class of establishment to which the said scheme applied. Therefore it was held by the learned Judge that until the individual doubt was resolved under sec. 19A there was no such specification of the establishment as contemplated by sec. 5(1). With great respect to the learned Judge the learned Judge failed to consider that specification took place when the scheme for these relevant industry was framed on September 1 1952 by specifying the class of establishments. The Central Government while resolving doubt under sec. 19A was not going to specify any individual establishment as such but only resolve the controversy as to whether the class which was specified as an establishment covered in Scheduled industry by entries existing in or added to Schedule I. Once the class was specified for application of the relevant scheme then the employer would be bound to introduce the provident fund for such a class establishment in accordance with the provisions of the Act and the Scheme. Therefore the specification never took place by the decision of the Central Govern ment but the specification was made by the notification under sec. 5(1) when the class of establishment was specified for the scheme being applied from September 1 1952 As far as the Calcutta High Court is concerned P. B. Mukherjee J in Aluminum Corporation of India Ltd. v. Regional Provident Fund Commissioner A.I.R. 1958 Cal 570 has taken the view that to require an employer to implement the decision of the Central Government with back effect would be giving retrospective operation to this decision and that would lead to great hardship. With great respect the learned Judge failed to consider the mandatory obligation which was cast by the plain language of the statute and he failed to give effect to the keywords in sec. 19A which made the decision or direction of the Central Government subject to the other provisions of the Act. The considerations of hardship as pointed out by us are more imaginary that real and as the present instance itself reveals there would be no hardship if the prudent employer started implementing the scheme under protest. In Shapurji v. Chairman Board of Trustees 70 Bom.L.R. 681 the Maharashtra High Court by an obiter observation sought to follow this Calcutta view of P. B. Mukherjee J. without any elaborate reasoning. Therefore this line of decisions does not take into account settled principles of construction under which the plain and unambiguous language of the statute can never be modified by the Court in the absence of any unambiguity inconsistency or absurdity and no effect was given to the key words of sec. 19A and they are based on consideration of assumed hardship which would not permit the Court to depart from the plain statutory language. The other settled line of decisions has however been referred to by Mr. Nanvati and there is a host of authorities which have taken the view that once the Act and the Scheme began to apply these provisions would not be suspended because of the pendency of this proceeding under sec. 19A of the Act. 1 Kokalai Rice and Oil Mills Foundary v. Regional Provident Fund Commissioner A.I.R. 1961 Ker. 57 (F. B.) 2 Kapur Bhimber Union v. Regional Provident Fund Commissioner Punjab (1965-66) 29 F.J.R. 232. 3 Nazeena Traders (Pvt.) Ltd. v. R.P.F.C. A.I.R. 1965 A.P. 200 4 Regional Provident Fund Commissioner v. K.R. Subbaier Tape Factory 1966 (2) L.L.J. 676. 5 Indian Mica and Micanite Industries Ltd. v. Union of India A.I.R. 1967 Patna 369 6 Gulshan Khandesari Udyog v. Union of India and anr. A.I.R. 1969 All. 432 7 The State of Gujarat v. Vijay Sewing Machine Co and anr. Cri. A. No. 566 of 1969 with Cr. A. Nos. 567 to 594 of 1969 decided by Shelat J. On October 30 1969 (XI G.L.R. 1051) 8 Ashok Prakashan Pvt. Ltd. s. R.P.F. Commissioner Gujarat State Spl. C.A. No. 255 of 1962 decided by the Division Bench consisting of Miabhoy C. J. and A. D. Desai J. on February 8/9 1967
(13.) We would be agreeing with the ratio of these decisions as they are in accordance with the settled principles of construction. We would not however rest our decision merely on the language of para 26 of the Scheme as has been done in most of these decisions. Para 26 of the Scheme contemplates classes of employees entitled and required to join the fund. These expressions entitled and required were found to be mandatory in character. We would achieve the same result as was done by Allahabad and Patna High Courts by reference to sec. 1(3)(a) sec. 16 and sec. 5(1) for when the infancy period is over the Act and the Scheme would automatically apply as contemplated by these provisions and the employer would be bound to establish a fund in accordance with the provisions of the Act and the Scheme including para 26. Therefore the mandatory obligation flows by reason of these provisions of the Act as well as the Scheme and there is nothing compelling in the context of sec. 19A as pointed out by us which would empower the Court to refuse to give effect to these mandatory terms So far as our Gujarat High Court is concerned the learned Single Judge Shelat J. in the aforesaid decision followed the Madras Division Bench view which had overruled the decisions of the Single Judge. So far as the Division Bench decision which gave rise to this reference is concerned in Ashok Prakashan Private Limited we are in complete agreement with its ratio that during the pendency of this adjudication under section 19A the implementation of the Act and the scheme is not suspended. We would only point out at this stage that the Division Bench had at that time no benefit of the latest decision of A. K. Kripaks case A. I. R. 1970 S. C. 151 where the thin line between the administrative and quasi-judicial function has been almost obliterated and principles of natural justice are held to be applicable wherever any authority under the Act is required to adopt judicial approach and is invested with the duty to arrive at a just decision. In such cases as per the settled law the function which has to be performed by the authority of arriving at a just decision for exercising powers for the benefit of persons for whom powers have been invested on the statutory authority would be one requiring a quasi-judicial approach. Therefore except for a pointing out the latest settled position in that regard we completely agree with the ratio of the Division Bench and the absolute character of the penal provisions would not be at all compelling in their context so as to modify plain statutory language. Therefore even the second contention raised by Mr. Krishnan must fail.
(14.) In the result this petition fails and both the grounds as urged in this petition fail. Rule is therefore discharged with no order as to costs in the circumstances of the case. Per S. H. Sheth J.:
(15.) I would like to add a few words to the judgment which my learned brother has just pronounced. The two questions which have been referred to this Full Bench are as under.
1 Whether Clinical Thermometers fall under the category of general engineering products within the meaning of the expression electrical mechanical or general engineering products used in the third item in Schedule I to the Employees Provident Funds Act 1957 (hereinafter referred to as the Act). 2 Whether the Act applies to an industry which manufactures any of the items specified in Schedule I to the Act if a dispute referred to the Central Government under sec. 19A is pending.
(16.) So far as the first question is concerned Schedule I which contains this entry opens with the following words. Any industry engaged in the manufacture of any of the following namely :
......... Then the third entry reads thus: "Electrical mechanical or general engineering products". There is an Explanation appended to Schedule I which states as under. "In this schedule without prejudice to the ordinary meaning of expressions used therein : (a) the expression Electrical mechanical or general engineering products includes............................... .... When the entry Electrical mechanical or general engineering products is read in light of what is stated in the Explanation it is clear beyond doubt that it is not an exhaustive entry embracing in its sweep all engineering products. What are not electrical or mechanical engineering products are not necessarily general engineering products. In that sense the expression general engineering products is not a residuary class or category of engineering products.
(17.) In the Regional Provident Fund Commissioner Punjab v. Shibu Metal Works A.I.R. 1965 Supreme Court 1076 the principle laid down by the Supreme Court is that general engineering products are other than those which are mechanical or electrical engineering products or products belonging to any other recognised branch of engineering. In that decision the Supreme Court has specified several recognized branches of engineering. The question therefore which has been raised in the instant case is whether Clinical Thermometers are a general engineering product within the meaning of that expression used in Schedule I to the Act and read in light of the decision of the Supreme Court in Shibu Metal Workss ease (supra).
(18.) It has been contended by Mr. Krishnan that it is not an engineering product at all. If it is not an engineering product at all the question of any further consideration in that behalf would not arise. Encyclopedia Britannica Vol. 8 (1972 edition) defines engineering as the creative application of scientific principles to design or develop structures machines apparatus or manufacturing processes or works utilizing them singly or in combination or to construct or operate the same with full cognizance of their design or to forecast their behaviour under specific operating conditions all as respects an intended function economics of op eration and safety to life and property. Applying this lest it cannot be gainsaid that a clinical thermometer is the creative application of scientific principles to design or develop an apparatus. It has been designed to measure temperature in human bodies. If it is an engineering product it is ex facie a general engineering product. It does not belong to any recognized branch of engineering such as those listed by the Supreme Court in Shibu Metal Works case (supra). The test which the Supreme Court has laid down in order to find out whether it anSwers the description of general engineering product is the character of product itself.
(19.) In order to persuade us to hold that clinical thermometers do not fall under the category of general engineering products Mr. Krishnan has invited our attention to item 18 in part (a) of the Explanation to Schedule I to the Act. That item has been described in the following terms. "Mathematical and scientific instruments". According to him clinical thermometers do not answer the description of scientific instruments within the meaning of that expression used in the Explaplanation. If that contention of his is accepted Mr. Krishnan has further argued clinical thermometers will not fall under the category of general engineering products. He has further argued that though mathematical and scientific instruments have been specified in the Explanation appended to Schedule I to the Act the legislature has not specified medical and surgical instruments. According to him clinical thermometer is a medical instrument and not a scientific instrument. He has in that behalf invited our attention to the First Schedule to the Industries (Development and Regulation) Act 1951 in which entry 16 specifies the following item. "Scientific instruments". Entry 14 therein specifies the following item; Medical and Surgical Appliances Surgical instruments-sterilisers incubators and the like. According to him the items included in Schedule I to the Act have been bodily borrowed from the items specified in the First Schedule to the Industries (Development and Regulation) Act 1951 Since the First Schedule to the Industries (Development and Regulation) Act 1951 makes a distinction between scientific instruments on one hand and medical and surgical appliances on the other hand and since no such distinction has been made by Schedule I to the Act the necessary inference to be drawn according to Mr. Krishnan is that medical and surgical appliances have been excluded from general engineering products specified in Schedule I to the Act and that the expression mathematical and scientific instruments does not take in its sweep the medical instruments with one of which we are concerned in this petition. The argument advanced by Mr. Krishnan suffers from a number of fallacies. The first fallacy is that he has tried to literally compare the two Schedules without trying to examine their schemes and in the context in which they have been inserted in the two Acts. The schemes of the two Schedules one in the Employees Provident Funds Act and another in the Industries (Development and Regulation) Act 1951 are entirely different. So far as the Employees Provident Funds Act is concerned the expression Electrical mechanical or general engineering products used in Schedule I to the Act is a comprehensive expression. In the Industries (Development and Regulation) Act 1951 several different items may when taken together go to constitute what is called Electrical mechanical or General Engineering products used in the Employees Provident Funds Act. The second fallacy from which his argument suffers is that whereas the expression general engineering products used in the Act is a residuary expression and does not cover other wellknown or well recognised branches of engineering industry there is no such residuary class contemplated by the Industries (Development and Regulation) Act 1951 The third fallacy from which his argument suffers is that the Explanation appended to Schedule I to the Employees Provident Funds Act is purely illustrative and it is not exhaustive. If a particular engineering product answers the description of a general engineering product to light of the principle laid down by the Supreme Court in Shibu Metal Works case (supra) it cannot be excluded merely because it does not for some reason answer if it is so the description of any of the 25 items listed illustratively in part (a) of Explanation to Schedule I.
(20.) In Mire Netting Stores v. Regional Provident Funds Commissioner and others A. I. R. 1970 Delhi 143 Mr. Justice Deshpande while dealing with this aspect of the question has observed that the use of the word includes shows that the 25 items listed in the Explanation do not exhaust the scope of the expression Electrical mechanical or general engineering products but either illustrate the scope or extend it. Further the words without prejudice to the ordinary meaning of the expressions used therein bring out to more important features which help the proper construction of the meaning of the entry Electricals mechanical or general engineering products. According to him the expressions Electrical mechanical or general engineering products has to be given its ordinary meaning that is to say a meaning which is understood in ordinary popular and general day-to-day parlance. The expression Electrical mechanical or general engineering products is therefore not to be construed in a technical manner. Generality of the meaning which the expression Electrical mechanical or general engineering products carries cannot be prejudiced by the 25 particular items which have been listed in the Explanation. In my opinion the observations made by the learned Judge in the aforesaid cast are quite correct.
(21.) The expression mathematical ant scientific instruments is an entry which finds place in the Explanation which lists out illustrative items. An illustration in my opinion serves to explain a principle. No further use thereof can be made and therefore it cannot be looked at in the present context for the purpose of restricting the meaning of the principal expression. To do so is to convert an illustrative list into an exhaustive list. It cannot be done.
(22.) The next fallacy from which the argument advanced by Mr. Krishnan suffers is that the expression scientific instruments forming part of the larger expression mathematical and scientific instruments has been used in the Employees Provident Funds Act comprehensively because it is an illustrative item and has therefore not been used as distinguished from medical and surgical appliances used in the Industries (Development and Regulation) Act 1951 So far as the First Schedule to the latter mentioned Act is concerned the expression MEDICAL AND SURGICAL APPLIANCES has been used as a heading in order to constitute a subheading relating to Surgical instruments. The expression Scientific instruments used in the Industries (Development and Regulation) Act 1951 appears to mean other scientific instruments or scientific instruments other than those which have been specified in its First Schedule. The first Schedule to the Industries (Development and Regulation) Act 1951 when read in light of secs. 2 and 3(1) thereof specifies industries which are engaged in the manufacture or production of any of the article mentioned under different headings or sub-headings. The emphasis is on the manufacture or production of articles. Now Schedule I to the Employees Provident Funds Act 1952 read in light of sec. 2 lays emphasis upon a factory which is engaged in an industry specified therein. Those two Acts therefore lay emphasis on different things so far as their Schedules are concerned even though they may ex facie appear to be similar. Next the objects and purposes of the two Acts are different. Whereas the object and purpose of the Industries (Development and Regulation) Act 1951 is to provide for the development and regulation of certain industries the object of the Employees Provident Funds Act 1952 is to institute provident funds for employees working in factories and other establishments. Whereas the development and control of an industry are intended to bring about certain results the institution of provident funds for workers employed in factories and other establishments is not intended to bring about the very same results.
(23.) For these reasons I am of the opinion that the contention which Mr. Krishnan has advanced before us suffers from a number of fallacies and therefore it is extremely difficult for me on the strength of his arguments to uphold his contention that clinical thermometers manufactured by the petitioners do not answer the description of general engineering products within the meaning of that expression used in Schedule I read with the Explanation appended to it in the Employees Provident Funds Act 1952 His first contention therefore must fail.
(24.) So far as his second contention is concerned. it requires the examination of sec. 1(3)(a) read with sec. 16. Sec. 1(3)(a) provides as follows:
"Subject to the provisions contained in sec. 16 it applies (a) to every establishment which is a factory engaged in any industry specified in Schedule I and in which twenty or more persons are employed and ............................. Sec. 16 grants protection to industries during the period of their infancy. In some cases protection is granted for a period of three years. In other cases it is granted for a period of five years. Sec. 16(1)(b) provides as under : (1) This Act shall not apply. ............................ . ........... (b) to any other establishment employing fifty or more persons or twenty or more but less than fifty persons until the expiry of three years in the case of the former and five years in the cast of the latter from the date on which the establishment is or has been set up".
The rest of sec. 16 is not material for the purpose of this case. The petitioners factory was established on 1st August 1962 when the Act was in force. On 1st August 1965 the period of three years contemplated by sec. 16(1)(b) and applicable to the factory expired. On 1st August 1965 a doubt or dispute within the meaning of sec. 19A was raised and referred to the Central Government. The petitioner therefore contends that the application of the Act was deferred until the Central Government decided the dispute. There are several reasons on account of which this contention cannot be upheld. Firstly there is no provision in the Act to defer or postpone the application of the Act to an industry except sec. 16 or to suspend its implementation in regard to a particular industry. Secondly if the application of the Act is deferred on account of the pendency of a dispute it will lead to dubious and absurd results. In the sa me industry there would be different dates of application of the Act to different units comprised therein. In a particular industry which comprises of several units there may be some units where there is no dispute contemplated by sec. 19A and there may be others where such disputes may have been raised and referred to the Central Government. They may be pending. In all other respects both these groups of industrial units may have been similarly situate. Merely because a dispute has been raised in case of one group the application of the Act will be deferred whereas the Act will apply to other units where no such dispute has been raised. This will lead to industrial unrest. Undue or hostile discrimination between two classes of workers who are otherwise similarly situate is one of the cause of industrial unrest. It will be extremely difficult for anyone to say how much time the Central Government will take to decide such disputes. If the construction which Mr. Krishnan has canvassed before us is accepted it will lead to a situation where the application of the Act will be deferred in disputed cases until an uncertain date when the Central Government decides the reference made to it under sec. 19A. Amongst those units which have raised disputes as to the applicability of the Act and whose disputes are pending with the Central Government the date of application of the Act would be different in each case because it cannot be said that all such pending references under sec. 19A would be decided by the Central Government on one and the same date. It is extremely difficult for us to find or discover any such intention on the part of the legislature so far as the Employees Provident Funds Act 1952 is concerned. Thirdly sec. 19A confers upon the Central Government power to remove difficulties subject to the condition that any direction which it issues while exercising its power under sec. 19A shall not be inconsistent with the provisions of the said Act. If sec. 19A is so construed as to produce for an employer liability under the said Act from a date other than one which is contemplated by sec. 1 (3) (a) read with sec. 16 it will be inconsistent because the operation of sec. 1 (3) (a) has been subjected to the provisions of sec 16 and has not been subjected to the provisions of sec. 19A. When we read sec. 1 (3) (a) and sec. 16 together it is quite clear that the Act applies to an industry proprio vigore and that its application does not depend upon any decision of the Central Government under sec. 19A where a dispute has arisen. In this behalf Mr. Krishnan has canvassed before us three propositions. His first proposition is that the Act does not apply proprio vigore to an industry by virtue of the provisions of sec. 1(3)(a) read with sec. 16. The second alternative proposition which he has submitted is that the application of the Act remains suspended during the pendency of a reference under sec. 19A. The third alternative proposition which he has tried to submit is that the Act does not come into force at all until the reference under see. 19A is decided by the Central Government. It is impossible to accede to the third proposition which he has advanced because there is nothing in the Act which subjects its application to an industry to the provisions of sec. 19A. In my opinion the Act applies to an industry proprio vigore. Assuming however that the application of the Act remained suspended during the pendency of a reference under sec. 19A it does not make any difference because as soon as the reference under see. 19A is decided an employer is bound to make good his liability under the Act from the date of its application in ease it is decided that the Act applies to his industry.
(25.) By virtue of the provisions of sec. 1(3)(a) read with sec. 16 since in my opinion the Act applies proprio vigore there is no question of its retrospective application. If a doubt is raised reference to Central Government removes that doubt. It merely gives a declaration. If the Central Government makes a declaration that the Act applies to a particular industry in respect of which doubt as to the applicability of the Act has been raised it cannot be said that the Act has been applied with retrospective effect. If see. 19A was not on the statute-book civil court would have decided all such disputes. If a civil court decided a dispute its decision operates from the date of the institution of the suit but such an operation of its decision does not make the application of the Ant retrospective. If the instant case the function which the Central Government performs under sec. 19A is a purely quasi-judicial function. The declaration therefore which it makes enjoys the same character as the decision of a civil court. It is therefore extremely different to say that on account of the pendency of a dispute and subsequent decision of the Central Government as to the applicability of the Act to an industry the Act is applied retrospectively. If the construction canvassed by Mr. Krishnan is adopted it will lead to many undesirable consequences. One of them may be illustrated. In a reference under section 19A if the Central Government decides that the doubt which an employer had raised and which was referred to it was entirely a mala fide doubt raised with the only object of avoiding liability under the Act there will be no remedy for the Central Government or the Regional Provident Funds authorities to recover the employers contribution to the provident funds for the period during which the reference under see. 19 had been pending. It is very difficult for us to think that the legislature had such an object in mind while enacting see. 19A.
(26.) The argument which Mr. Krishnan has raised however does not rest there. He has tried to point out to us certain provisions in the Act the non-compliance of which will produce serious consequences for an employer. Amongst others he has invited our attention to sub-sec. (2) of sec. 14 read with paragraph 76 of the Scheme and sub-sec. (2-A) of sec. 14. Both the sub-sections attract criminal liability in respect of noncompliance with the provisions of the Act. Sec. 14-B attracts civil liability in damages for non-compliance with certain provisions of the Act. Referring to these and other provisions he has argued before us that even if there is a bona fide dispute as to the applicability of the Act pending before the Central Government an employer for not making contribution to the provident funds will attract criminal liability lending to his conviction. According to him it will be much worse if an employer is convicted and sentenced either under sub-sec. (2) of sec. 14 read with paragraph 76 of the Scheme or under sub-sec. (2-A) of sec. 14 and if subsequently it is held that the Act does not at all apply to his factory or establishment. If the ultimate decision declared that the Act did not apply to his industry or factory for what was such an employer deprived of his liberty ? According to him there is no way to avoid these consequences. This argument has weighed with some High Courts which have taken the view which Mr. Krishnan canvasses before us. That is the reason which has impelled a Division Bench of this High Court to refer this matter to the Full Bench. The situation is not as hopeless as Mr. Krishnan has tried to picturise before us. A bona fide employer can always make payment of his contribution to the provident funds under protest or comply with other provisions of the Act under protest if their non-compliance leads to criminal liability and he can thereby avoid criminal consequences. If the Central Government holds ultimately that the Act does not apply to his industry he will get back his monies. If the Central Government holds ultimately that the Act applies to his industry the contribution made by him to the provident funds will be in accordance with the Act itself.
(27.) In Ramakrishna Rao v. Provident Fund Inspector Trichur I.L.R. 1965 Kerala 337 a Division Bench of the Kerala High Court was considering the effect of sec. 19A in a Criminal Revision Application. The petitioner in that case was convicted of an offence under sec. 14(2) of the Employees Provident Funds Act 1952 read with Paragraph 76(c) and (c) of the Employees Provident Funds Scheme and he was sentenced to pay a fine of Rs. 25.00. One of the contentions which was raised before that High Court was that prosecution could not lie until the Central Government decided the reference under sec. 19A of the Act. Such a reference had already been pending before the Central Government. This contention was raised on the basis of the decision of Mr. Justice Vaidialingam (as he then was) in Dhanalakshmi Weaving Works and others v. The Regional Provident Fund Commissioner Trivendrum 1963 Kerala Law Journal 885 in which it was held that when a doubt existed in regard to any or all of the matters specified in sec. 19A the provisions of the Act could not be enforced in the absence of a decision on those points by the Central Government it a reference made to it. In Provident Fund Inspector Ernakulam v. The Auto Transport Union (P) Ltd. 1963 Kerala Law Journal 1121 a Division Bench of that High Court had taken a different view. It was contended that the Division Bench in the case of Auto Transport Union (supra) had not considered the earlier decision of the learned single judge. The Division Bench of the Kerala High Court in Ram Krishna Raos case (supra) found itself in full agreement with the view taken in Provident Fund Inspector Ernakulam v. The Auto Transport Union (P) Ltd. (supra) and dissented from the view taken by the learned single Judge in Dhanalakshmi Weaving Works and others (supra). It held that the Act could apply even during the pendency of the reference to the Central Government under sec. 19A and a prosecution could be instituted for an offence under sec. 14. The report however states that at the end of the arguments the learned counsel for the petitioner had conceded that he did not press that contention of his. This very case went in appeal to the Supreme Court (R. Ramakrishna Rao v. The State of Kerala A.I.R. 1968 Supreme Court 1367). In the judgment of the Court delivered by Mr. Justice Hidayatullah (as he then was) while summarizing the findings recorded by the Kerala High Court he recorded this finding as well. The report of the decision of the Supreme Court shows that that finding was not challenged before the Supreme Court. If the finding was challenged and it was present to the mind of the Supreme Court it would have made all the difference in the result of the case. Since it was not done the necessary implication is that the aforesaid decision of the Kerala High Court on the aforesaid aspect has been approved by the Supreme Court.
(28.) This should have brought an end to the arguments advanced by Mr. Krishnan on this point. He has however cited quite a number of decisions in support of his proposition. We proceed to make a very brief reference to them.
(29.) In Annamalai Mudaliar and Bros. v. Regional Provident Fund Commissioner Madras and others A.I.R. 1955 Madras 387 Mr. Justice Rajagopalan has considered a similar situation. In that case dispute under sec. 19 had been pending before the Central Government and during the pendency of that dispute the Regional Provident Fund Commissioner had demanded contributions from the employer to the provident funds. The employer sought to restrain the Regional Provident Funds Commissioner from enforcing the demands by a suit. The learned Judge granted him the relief. The reasons which weighed with him in granting the relief to the petitioner were as follows. The employer had no control over the time which the Central Government would take to decide the dispute under sec. 19A. The petitioners employees were not employees as defined by the Act and no demand could be made until the question whether the petitioners factory was a factory within the meaning of that Act was decided under sec. 19A. In my opinion this decision does not lay down good law in view of the aforesaid decision of the Kerala High Court which has been upheld by the Supreme Court. Secondly the learned Judge has not considered the fact that sec. 1(3)(a) of the Employees Provident Funds Act is subject only to sec. 16 and not to sec. 19A. He has also not considered that the payment can always be made under protest. He has also not considered that if an employer is allowed to have his way where a dispute is pending under sec. 19A it will defeat the very object of the Act viz. to protect and provide for the workers. Lastly he has not considered the effect of the expression not inconsistent with the provisions of this Act used in sec. 19A.
(30.) The decision of Mr. Justice P. B. Mukherji in Aluminum Corporation of India Ltd. v. Regional Provident Fund Commissioner and others A.I.R. 1958 Calcutta 570 has been made use of by some High Courts. The first reason which has weighed with the learned Judge in holding that the Act applies only with effect from the date on which the Central Government decides the doubt or removes the difficulty is that if any other view is taken the Act will apply retrospectively. The second reason which has weighed with him is that an employer cannot be called upon to pay provident fund contributions in respect of those employees who have already left the service. The third reason which has weighed with him is that the employer shall not be able to deduct provident fund contributions from the salaries of those who have been paid their salaries. In light of these reasons the learned Judge has held that an employer makes no default when a dispute is pending before the Central Government under sec. 19A and that the default starts operating only from the date of the decision of the Central Government. According to him to take any other view is to make default retrospective or to impute to it a constructive character. He has also held that to apply the Act not from the date of the decision of the Central Government under sec 19 but from any other earlier date is to violate the expression not inconsistent with the provisions of this Act. There are a number of fallacies from which this decision of the learned single Judge suffers. Firstly sec. 1(3)(a) read with sec. 16 is not subject to sec. 19A. Secondly the Central Government merely declares that the Act and the Scheme apply. It does not perform any other function. Thirdly not to apply the Act during the pendency of the reference to the Central Government is to violate sec 1 read with sec. 16 none of which is subject to sec. 19A. Application of the Act and the Scheme during the pendency of a reference which in its turn merely makes a declaration cannot by any stretch of imagination be said to have retrospective or constructive operation. Next payment can always be made under protest so that the interests of the workers and the employer are protected. The Central Government under sec. 19A performs the function of quasi-judicial authority. Its decision under sec. 19A must operate from the date of the dispute. If it holds that the Act is applicable and yet if it becomes applicable only from the date of the decision of the Central Government the employer would have committed default with impunity for not contributing to the provident funds for the period during which the reference under sec. 19A had been pending and during which the decision of the Central Government in such a reference whenever given would operate. For these reasons I am of the opinion that the principle laid down by the learned Single Judge in that case is not a correct principle.
(31.) In Messrs. Shapoorji Nusserwanji Co. v. The Chairman Board of Trustees of the Employees Provident Fund scheme 1952 70 Bombay Law Reporter 581 a similar question arose before a Division Bench of the High Court of Bombay. The following are the relevant observations which they have made on this aspect.
"No one is applying the Act and the Scheme by an order retrospectively. What is being done is that the same is being enforced from the date from which it became applicable there being no doubt about the matter nor any question of a decision by the Central Government under sec. 19A of the Act arising. We have already indicated that the Act and the Scheme automatically apply as soon as the conditions for their preliminary things within a fortnight of the Scheme applying and to start enforcing qua such employees as are required to become members of the Fund immediately. There is nothing in the Act or the Scheme to indicate that the Scheme becomes applicable only when the discovery is made and or an order in that: respect is made. This construction if accepted would encourage evasion for an undertaking to whom the Scheme is applicable may remain undiscovered either inadvertently or deliberately".
Proceeding further the High-Court of Bombay has observed as under:
"On a fair reading of the provisions of the Scheme and the Act we have no doubt that it becomes effective regarding an establishment immediately it is applied and the conditions for its application are satisfied without an order under sec. 7A of the Act and the employer is bound to give it effect except when a case is governed by sec. 19A of the Act".
The facts of the case show that it was not necessary for them to decide this point. Yet they did so. The two quotations extracted above from that decision show th8t they are apparently contradictory observations. No doubt the High Court of Bombay was inspired in making the latter observation by the decision of the Calcutta High Court in the case of Aluminum Corporation of India Ltd. (supra). This decision of the Bombay High Court therefore suffers from the same infirmities from which the aforesaid decision of the Calcutta High Court suffers.
(32.) In K. R. Subbaier v. The Regional Provident Fund Commissioner Madras A. I. R. 1963 Madras 112 Mr. Justice Jagadisan has taken a. similar view. He has principally relied upon the aforesaid decision of the Calcutta High Court in the ease of Aluminum Corporation of India Ltd. (supra). After having taken into account the principle laid down by the Calcutta High Court in the aforesaid decision and after having considered some of the provisions of the Act the conclusion which he has recorded is as follows. The gist of these provisions is such as to make them operative only on and from the point of time when the authorities hold that a particular unit is within the ambit of the Act and make a consequential demand in terms of the Act and the scheme. Any demand for a back period appears to be not merely illogical and oppressive but plainly inconsistent with terms of the enactment which are manifestly prospective in their operation. It is true that neither harshness not inequity can defeat a statute There is no duty laid on the Court to yield to absurd construction of statutes. If such a construction can be avoided the Court will do so and no rule of interpretation can forbid it." In my opinion the approach that in case of a dispute pending before the Central Government if the Act is made applicable from a date earlier than the date of the decision by the Central Government it will be retrospective in character is a fallacious approach. there is no retrospective or retroactive character there. When a judicial or quasi-judicial authority grants a declaration about the applicability of the Act it does not apply the Act retrospectively. This decision of the Madras High Court suffers from the same fallacies from which the decision of the Calcutta High Court in the case of Aluminum Corporation of India Ltd. (supra) suffers. It may be noted that it has been reversed in Regional Provident Fund Commissioner Madras v. K R. Subbaier Tapes Factory Woriyur (1966) 2 Labour Last Journal 676 to which I shall be referring shortly.
(33.) In T. R. Raghava Iyengar and Co. v. The Regional Provident Fund Commissioner Madras A.I.R. 1963 Madras 238 the same learned judge has taken the same view and held that the Regional Provident Fund Commissioner cannot enforce the Act until the decision of the dispute was recorded by the Central Government on a reference under sec. 19A. It need not detain me any longer because in my opinion it suffers from the same fallacies from which his earlier decision suffers.
(34.) A similar view has also been taken in Dhanalakshmi Weaving Works Kakkat Cannanore and others v. The Regional Provident Fund Commissioner Trivendrum A.I.R 1963 Kerala 219. This decision of Mr. Justice Vaidialingam (as he then was) has been overruled by a Division Bench of the Kerala High Court in the case of Ramakrishna Rao v. Provident Fund Inspector Trichur. (supra).
(35.) The next decision is in Wire Netting Stores case (supra) given by Mr. Justice Deshpande of Delhi High Court. He has tried to analyse the provisions of sec. 19A in light of sec . 2(c) of the U. S. A. Federal Administrative Procedure Act 1946 According to him sec. 19 confers upon the Central Government a dual role: (1) adjudicatory and (2) rule-making. When it adjudicates upon a dispute with the object of terminating a controversy it performs a purely quasi-judicial function and if it does so it must hear the parties before making the order and should make a speaking order. So far as the rule-making role is concerned it is a function of a subordinate legislation which the Central Government performs. Since in his view sec. 19A confers upon the Central Government the role of rule-making authority also it must always be held to be prospective. It appears that he has not considered how a quasi-judicial decision recorded by a quasi-judicial authority operates. Whether it operates from the date of the decision or from the date on which the dispute originated is a matter which has been entirely overlooked by him. Not much use therefore of the decision can be made in resolving the controversy before us.
(36.) In Mahaveer Metal Manufacturing Company Falna v. Regional Provident Fund Commissioner Jaipur and others (1970) I Labour and Industrial Cases 251 a Division Bench of the Rajasthan High Court was dealing with a similar question. The conclusion which they have recorded is that in case of a dispute pending under sec. 19A the Act applies from the date of the decision and not from an earlier date. While taking that view they have relied upon the decisions of the Calcutta High Court in Aluminum Corporation of India Ltd. (supra) and the Madras High Court in T. R. Raghava Iyengar and Co. (supra) and has also marshaled to their aid sec. 5(1) of the Employees Provident Funds Act. Sec. 5(1) provides as follows
"The Central Government may by notification in the Official Gazette frame a Scheme to be called the Employees Provident Fund Scheme for the establishment of provident funds under this Act for employees or for any class of employees and specify the establishments or class of establishments to which the said Scheme shall apply and there shall be established as soon as may be after the framing of the Scheme a Fund in accordance with the provisions of this Act and the Scheme".
Emphasis has been laid by the Rajasthan High Court on the expression specify used in sec. 5(1) According to them unless a doubt has been removed under sec 19 an industry cannot be specified under sec. 5(1) of the Act. The reasoning adopted by the Rajasthan High Court in my opinion suffers from Certain fallacies. The expression specify does not necessarily mean specifying each individual industrial unit. Industrial units can be specified by their common name or by their class name unless a particular industrial unit constitutes a class by itself. Electrical mechanical or general engineering products used in Schedule I to the Act is class name. Doubt or difficulty may arise in case of one or two industrial units and may not arise in the rest of the cases. Such a doubt or difficulty is removed. If it is so done it merely declares whether a particular industrial unit falls under a particular class of industry already specified It is a declaration and not a specification. Specification of an industry is to be done by the Central Government in exercise of its executive authority. Declaration is to be made by it under sec. 19A in exercise of its quasi-judicial authority. These are two altogether different things. The principle laid down. by the Rajasthan High Court cannot be relied upon because it has failed to distinguish between a quasi-judicial declaration and an executive act of specification. In Ram Narain and Co. and others v. The Union of India and another (VII G.L.T. 159) 1971 Labour and Industrial Cases 927 a Division Bench of this High Court of which my learned senior brother was a member has held that sec. 19A confers upon the Central Government the role of a quasi-judicial authority and that a direction has to be given by the Central Government under sec. 19A in light of the perspective of the Act. That is the view which we are taking in the instant case as well.
(37.) In Evershine Metals and another v. Regional Provident Fund Commissioner (1962) 2 Labour Law Journal 479 Mr. Justice Veeraswami of the Madras High Court has held that the demand for contribution with retrospective operation is not maintainable. In that case there was a reference to the Central Government under sec. 19A and thereafter the demand came to be made by the Provident Fund Inspector from the original date of the application of the Act and the Scheme that is to say from 1st November 1952. He has merely followed the earlier decision of his own High Court in Writ Petition No. 619 of 1959. He has not: given his own reasons and the judgment of that High Court in Writ Petition No. 619 of 1959 is not available to us.
(38.) The decision referred to above are the decisions which support the construction which Mr. Krishnan has tried to canvass before us. For the reasons stated above they do not appeal to me except the decision of this High Court in the case of Ram Narain and Co. (supra) which does not support the proposition canvassed by Mr. Krishnan.
(39.) There are a few decisions which militate against the construction canvassed by Mr. Krishnan. In Regional Provident Fund Commissioner Madras v. K R. Subbaier Tape Factory Woriyur (1966) 2 Labour Law Journal 676 a Division Bench of the Madras High Court has dissented from the view of the Calcutta High Court in the case of Aluminum Corporation of India Ltd. (supra). They have held that during the pendency of a reference of doubt or difficulty to the Central Government under sec. 19 a demand for contribution under the Act can be enforced. That is the conclusion with which I agree but it is difficult to accept the reasoning which has led to that conclusion. Sec. 19A has been construed by the Madras High Court with reference to different clauses of the Scheme. They have placed reliance principally upon Clause 26 which opens with the following words
"(1)(a) Every employee employed in or in connection with the work of a factory or other establishment to which this Scheme applies other than an excluded employee shall be entitled and required to become a member of the Fund from the beginning of the month following that in which this paragraph comes into force in such factory or other establishment........ "
The expressions entitled and required have been emphasized in order to arrive at the conclusion that the application of the Act with the meaning of sec. 1(3)(a) read with sec. 16 cannot be deferred or postponed. With respect to the learned Judges no statute can be construed in light of the subordinate legislation made thereunder. A Scheme made under an Act is a subordinate legislation and therefore cannot control the Act. In a given case a subordinate legislation may be taken as an aid to the construction of the principal statute provided there is an indicates in the Act to that effect. There is nothing in the Act which indicates that the Scheme framed by the Central Government thereunder as a subordinate legislation may be looked at for the purpose of construing the Act itself.
(40.) In Ramanujam Press represented by its Partner K. Ramanujam v. The Regional Provident Fund Commissioner A.I.R. 1970 Madras 224 a learned single Judge of that High Court has taken the view that there is no scope for clause 26 to control the obvious and clear meaning of sec. 1(3) (a) of the Act. In my opinion. The view taken by the learned single Judge is a correct view. Although I do not agree with the reasons which have led the Madras High Court in the Case of K. R. Su
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bbaier Tape Factory (supra) to the conclusion which they have recorded I agree with the conclusion itself. (41.) In Lawly Sen and Co. v. Regional Provident Fund Commissioner Bihar and another A.I.R. 1959 Patna 271 a question arose as to the commencement of the legal liability of an employer to make contribution to the provident funds. Construing sec. 17(1) a Division Bench of the Patna High Court has held that where there is no order of exemption made under sec. 17 the legal liability of a factory to make contribution with effect from the date of the application of the Scheme remains unaffected. The effect of sec. 19A was not canvassed before it. At that time sec. 19A was on the statute-book. However no argument was advanced on the effect of sec. 19A. Therefore that decision is not much helpful for the purpose of the present case. (42.) In Indian Mica and Micanite Industries Ltd. v. Union of India and another A.I.R. 1967 Patna 369 a similar question arose before a Division Bench of that High Court. They construed sec. 5(1) sec. 16(1)(b) of the Act and Clauses 26 and 30 of the Scheme and arrived at the same conclusion at which we have arrived. Though I agree with the conclusion recorded by the learned Judges in that decision it is difficult to accept the reasoning which has led to that conclusion because in arriving at the conclusion at which they have arrived they have marshaled to their aid Clause 26 of the Scheme for construing the Employees Provident Funds Act. I have already stated that a clause or clauses of the subordinate legislation cannot be used as an aid to the construction of the statute unless the statute indicates to the contrary. In the instant case there is nothing in the statute to indicate to the contrary. So far as the reasoning is concerned it therefore suffers from the same fallacies from which the decision of the Division Bench of the Madras High Court in Regional Provident Fund Commissioner Madras v. K. R. Subbaier Tape Factory Woriyur (supra) suffers. (43.) In Nagpur Glass Works Ltd. Nagpur v. Regional Provident Fund Commissioner Bombay A.I.R. 1957 Bombay 152 with reference to sec. 19A it has been laid down that if the Regional Provident Fund Commissioner does not move the Central Government under sec. 19A in case of a doubt or difficulty it does not affect his power to realize the amount which an employer is liable to contribute under the Employees Provident Funds Act. That is the decision of Division Bench of the High Court of Bombay. By implication this decision lays down that the commencement of the liability of an employer under the Employees Provident Funds Act does not depend upon the decision of the Central Government under sec. 19A in a case where a doubt or difficulty has been raised and is pending for adjudication before the Central Government. (44.) In Haji Nadir Ali Khan and others v. The Union of India and others A.I.R. 1958 Punjab 177 Mr. Justice Falshaw was concerned with a case in which the Regional Provident Fund Commissioner had made in 1955 a demand for contribution to the provident funds with effect from 1952 He held that such demand by the Regional Provident Fund Commissioner was not illegal. It appears from the decision of the learned Judge that he was not concerned with the situation arising out of a dispute pending for adjudication under sec. 19A before the Central Government. At that time sec. 19A was on the statute book. (45.) In Radhakrishan Narayandas a firm v. Regional Provident Fund Commissioner Madhya Pradesh Indore and another A.I.R 1967 Madhya Pradesh 157 a similar situation arose. It was contended that the Act and the Scheme could not be applied retrospectively to the petitioners establishment in that case because there was no liability for the petitioner to pay any provident fund contribution or administrative charges for any period prior to the date on which the Commissioner came to the conclusion that the Act was applicable to his unit and made a demand for the dues. That argument was rejected. The learned Judges constituting a Division Bench of the Madhya Pradesh High Court held that if the Regional Provident Fund Commissioner made a demand with effect from the date of the application of the Act or sometime thereafter it could not be said that it was a retrospective demand. (46.) In M/s. N. K. Industries (Private) Ltd. v. Regional Provident Fund Commissioner U P. A.I.R. 1958 Allahabad 474 it has been held by a learned single Judge that sec. 19 A enables the Central Government to remove difficulties which may arise in giving effect to the provisions of the Act and that if no demand for provident fund contribution has been made by the Commissioner for a period of three years it is not waived. (47.) In Nazeena Traders (P.) Ltd. v. Regional Provident Fund Commissioner Hyderabad and others A.I.R. 1965 Andhra Pradesh 200 it has been held that the liability to make contribution to the provident funds under the Employees Provident Funds Act 1952 arises as soon as the Scheme is applied and that the collection from the date of the application of the Scheme is not retrospective or retroactive in character. It has been further held that where a reference under sec. 19 A has been pending before the Central Government its decision is not a pre-requisite to the enforcement its Scheme. In that case they have examined a number of decisions to some of which we haze referred and accepted the line of reasoning which has appealed to us. There is no new reason which they have advanced in that decision. (48.) In Kokkalai Rice and Oil Mills Foundry etc. v. Regional Provident Fund Commissioner A.I.R. 1961 Kerala 57 the situation with which a Full Bench of the Kerala High Court was concerned was constituted by the following facts. On 31st October 1952 the Regional Provident Fund Commissioner intimated to the petitioner in that case that his contribution to the provident funds would commence from 1st November 1952 because the Act and the Scheme applied to his factory with effect from that date. On receiving the said intimation the employer in that case approached the Civil Court and obtained an injunction restraining the Commissioner from taking any action against him for recovering the said contribution. An interim in junction was granted restraining the Regional Provident Fund Commissioner from enforcing the demand. It was thereafter contended that it was not open to the Regional Provident Fund Commissioner to collect the contribution because he had not done it in due time on account of the operation of the interim injunction. That argument was negatived by the Kerala High Court. It has held that the issuance of an injunction by a Court cannot be allowed to prejudice the enforcement of legal rights to which the Commissioner is entitled and approved the principle laid down by the Allahabad High Court in N. K Industries (Private) Ltd. (supra). (49.) In Kunhipaly v. Regional Provident Fund Commissioner Trivendrum and others (1966) I Labour Law Journal 642 Mr. Justice Govindan Nair has not accepted the principle laid down by the Calcutta High Court in Aluminum Corporation of India Ltd.s case (supra) and by the Madras High Court in K. R. Subbaiers case (supra) and has held that the operation of the Act does not depend upon any decision which the Central Government may take in a reference under sec. 19-A. He appears to have followed the decision of his own High Court in Kokkalai Rice and Oil Mills case (supra) which according to him has been approved by the Supreme Court in the case of Associated Industries (Private) Ltd. (1963)-2 Labour Law Journal 652. (50.) In Kapur Bhimber Union v. Regional Provident Fund Commissioner Punjab and another (1966) I Labour Law Journal 870 a Division Bench of the Punjab High Court has followed the decision of that High Court in Haji Nadir Ali Khans case (supra) and laid down the principle which we are laying down. (51.) There is an unreported decision of Mr. Justice Tarkunde of the Bombay High Court in Misc. Application No. 120 of 1963 decided by him on 18th September 1964. A similar situation arose before him. The decisions of the Madras High Court in Evershine Metals case (supra) Punjab High Court in Haji Nadir Ali Khans case (supra) and the Calcutta High Court in Aluminum Corporation of India Ltd.s case (supra) were cited before him. His attention was also invested to the decision of the Madras High Court in K R. Subbaiers case (supra) and the Division Bench decision of the Bombay High Court in Nagpur Glass Works case (supra). Having considered all these decisions it has been held by him that the Regional Provident Fund Commissioner can demand contribution to the provident funds from an employer from an earlier date. It goes to show that a demand can be made from the date of the application of the Act. (52.) It is not necessary for me to refer to the unreported decision of this High Court in the case of . decided by Chief Justice Miabhoy and A. D. Desai J. My learned brother has dealt with it in this judgment. I may add that omission on the part of the learned Judges in that case to consider the effect of sub-secs. (2) and (2-A) of sec. 14 on the non-compliance with the statutory requirement of making contributions to the provident fund during the pendency of a reference under sec. 19 A does not in my opinion make any difference whatsoever because the liability which arises for an employer to make such a contribution under the provisions of the Employees Provident Funds Act is not dependent or conditional upon or subject to sec. 19A. (53.) In State of Gujarat v. Vijay Sewing Machine Co. and another 11 Gujarat Law Reporter 1051 Mr. Justice N. G. Shelat was concerned with a similar situation. After reviewing the case law on the point he has held that the Employees Provident Funds Act and the Scheme come into force by their own vigour and their application is not deferred or delayed until such time as the doubt or difficulty contemplated by sec. 19A of the Act is resolved. The Act and the Scheme become effective from the date on which they are notified and the obligation of an employer arises with effect from that date provided the company or factory as the case may be falls within the ambit of sec 1(3)(a) of the Act. For the reasons stated in this judgment I agree with the principle laid down by him in that decision. (54.) With these observations I concur in the conclusion recorded by my learned senior brother. (55.) I agree with the conclusions reached by my learned brothers and have nothing to add. Order of the Court: (56.) Mr. Krishnan orally asked for a certificate under Art. 133(1). Both the questions which are raised in this petition are of wide general public importance and particularly on the second question as pointed out by us there is a conflict of authorities. Therefore both the questions are of wide general public importance which in our opinion require to be finally settled by the Supreme Court. We therefore grant a certificate under the Amended Art. 133(1) of the Constitution on both these questions. Petition dismissed: Leave to appeal granted.