M V GOPALAN Vs. STATE OF MADRAS

JUDGEMENT

(1.) THE petitioner prays for the issue of a writ of certiorari or other appropriate writ, or order under Article 226 of the Constitution to quash the order of the Regional provident Fund Commissioner, Madras dated 2-3-1957 in exercise of his powers and jurisdiction under the Employees Provident Funds Act, XIX of 1952.

(2.) THE relevant facts are these : The petitioner is the sole proprietor of a business concern called "the Modern Agencies". He is running a factory registered under the Factories Act. In this factory he is manufacturing various items and products such as wooden toys, pedalling cars, perambulators, tricycles, scooters, merry-gorounds garden swing cradles etc. The Provident Fund Inspector, Madras inspected the factory on 28-2-1957 and found more than 50 workers employed in the factory. The records of the factory disclosed that on 31-10-1952 there were actually 81 employees. In March 1957, the petitioner obtained aid from the State government under the scheme of State aid to small industries in a sum of Rs. 19000. He started producing "merry-go-rounds" only thereafter. The Regional provident Fund Commissioner by his communication dated 2-3-1957 initimated the petitioner that his factory was engaged in the manufacture of "general engineering products" and that therefore it was under the purview of the Employees Provident fund Act. The petitioner was called upon to submit returns with particulars of employees in the factory and to make remittance of arrears of contribution for provident fund for the period of 1-11-1952 to 28-2-1956. The petitioner failed to comply with that requisition of the Commissioner. The Central Government by its communication dated 13-1-1958 gave the ruling, presumably under Section 19-A of the Act that the petitioner's factory is within the Act. The petitioner's contention is that his factory is only manufacturing toys, that it is not within Schedule 1 of the act, and that there is no notification by the Central Government bringing toy industry within that schedule that the Act is therefore wholly inapplicable and that the demand of the Commissioner is illegal being in excess of his jurisdiction. The writ petition has therefore been filed against the State of Madras, represented by the Regional Provident Fund Commissioner to quash the proceedings of the commissioner referred to above.

(3.) THE only question is whether the petitioner's factory is within the ambit of the employees' Provident Fund Act. The petitioner manufactures wooden toys, like rocking horses and other varieties of toys papier-mache toys, clay toys etc. Admittedly he also manufactures merry-go-rounds, but the petitioner states that he commenced such manufacture only from 1957, and that this part of his factory, namely, the section manufacturing merry- go-rounds employs only five persons. I must however refer to the averment in the counter affidavit that the records of the factory show production of pedalling cars, perambulators, scooters and tricycles which can be used by children of ages ranging from 5 to 12. This averment has not been denied by the petitioner. The factory is a single unit manufacturing all the above-said articles from wooden toys to perambulators and scooters and the petitioner does not give any details regarding the number of persons employed in the manufacture and production of each and everyone of these articles. He has merely said that only five persons are employed in the section of the factory where "merry-go rounds" are manufactured. On these facts the question that has to be considered is whether the Act can be applied to the factory of the petitioner.