THANKAMMA BABY Vs. REGIONAL PROVIDENT FUND COMMISSIONER, KOCHI

JUDGEMENT

(1.) The issue involved in these appeals is of interpretation of clause (b) of sub-Sec. (3) of Sec. 1 of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (for short, 'the 1952 Act'). In order to understand the controversy, the facts must be briefly stated.

(2.) The appellant is engaged in manufacturing, assembling, and selling umbrellas. The respondent (the Regional Provident Fund Commissioner) issued a notice dtd. 30/12/1997 to the appellant, alleging that the 1952 Act was applicable to the appellant. It was alleged in the notice that the business of the appellant fell in the category of 'trading and commercial establishments' notified under the notification dtd. 7/3/1962, issued by the Central Government in the exercise of powers under clause (b) of sub-Sec. (3) of Sec. 1 of the 1952 Act. The respondent made an Inquiry under Sec. 7A of the 1952 Act. The respondent held that the case of the appellant was covered by the notification dtd. 7/3/1962. A Review Petition was filed by the appellant, which was rejected by the respondent. An appeal preferred by the appellant to the Appellate Authority against the decision of the respondent was dismissed. Being aggrieved by the said orders, a Writ Petition was filed by the appellant. The learned Single Judge dismissed the Writ Petition, and the order of the learned Single Judge has been confirmed by the impugned judgment by a Division Bench of the Kerala High Court in a Writ Appeal filed by the respondent.

(3.) The learned counsel appearing for the appellant submitted that establishments covered by clause (a) of sub- Sec. (3) of Sec. 1 are factories engaged in industries specified in Schedule I of the 1952 Act. His submission is that clause (a) is applicable to the factories engaged in the industries specified in Schedule I. Therefore, those factories not specified in Schedule I cannot be covered by clause (b) of sub- Sec. (3) of Sec. 1 of the 1952 Act. He submits that clause (b) of sub-Sec. (3) does not refer to the factories. Thus, from the intention of the legislature, it is very clear that 'any other establishment' mentioned in clause (b) of sub-Sec. (3) will not include any factory. His submission is that, in fact, the counter filed by the respondent before the learned Single Judge contains an admission that the umbrella-making unit of the appellant is not an industry included in Schedule I. He relied upon a decision of the Apex Court in the case of Regional Provident Fund Commissioner V. Shibn Metal Works, 1965 (2) SCR 72 He submitted that by no stretch of the imagination, the appellant's establishment can be called a trading and commercial establishment covered by the notification dtd. 7/3/1962.