RAMESH METAL WORKS Vs. STATE

JUDGEMENT

(1.) I agree with my brother Dwivedi that the reference should be rejected. The essential fact to notice is that each applicant has been convicted as an employer under Para 76 of a Scheme framed by the Central Government in exercise of the powers conferred upon, them by Section 5 of the Employees' Provident ' Funds Act. It is not in dispute that the acts for which the applicants have been convicted have been done by them and are in breach of the provisions of the Scheme and are made punishable by Para 76 of it read With Schedule II, Item No. 14, and Section 14(2) of the Act. I am emphasising the fact that the applicants have been convicted under the scheme and not under the Act because whether the Scheme was in force on the date on which the acts were done haa not been considered either in the case of Golden Silk Mills v. Central Provident Fund Commissioner, AIR 1958 Punj 386 or in the case of State v. Jagraj, 1961 All LJ 141 : (AIR 1961 All 556). When the applicants are not convicted under any provision of the Act, when the acts done by them do not amount to an offence under the Act, it seems to me irrelevant to consider whether it was, or was not in force, when the acts were done and the conviction was recorded. The Act may cease to be in force or applicable, but the Scheme may still remain in force and operation. Had the acts amounted to an offence under the Act, it would have been relevant to consider whether the Act was in force or applicable to the appellants' factory when they did the acts, but that is not the case.

(2.) It is not in dispute that the Act once applied to the applicants' factory and that they established a provident fund in accordance with the provisions of the Act and the Scheme. The Central Government was required by Section 5 of the Act to frame a Scheme and the Central Government had framed a Scheme in compliance. Section 1(3) lays own that the Act will apply to every factory engaged in any industry specified in Schedule 1 and in which fifty or more persons are employed. The remaining provisions of the Act deal with the Scheme and its contents and enforcement. One of the matters which must be mentioned in the Scheme, is the establishments or classes of establishments to which the Scheme is to apply. The main object behind the Scheme is the establishment of a provident fund and evidently the fund is to he established by the establishments or classes of establishment mentioned in the Scheme. If an establishment is not mentioned in the Scheme, it is not required to establish a fund. In the circumstances one cannot with certainty say what is the meaning of the provision in Section 1(3) that the Act will apply to certain establishments. When all the provisions of the Act are concentrated upon the framing of a Scheme and its implementation and when the implementation of the Scheme depends upon Us contents, I do not understand how there would arise a question of applying the provisions of the Act to any establishment. There will arise a question of applying the provisions of the Scheme, but there cannot arise any question of applying the provisions of the Act. If what is meant by Section 1(3) is that the Scheme should mention only those establishments or clases of establishment which are mentioned in it, there can arise no question of its continued application because 'as eoon as the Scheme mentions those establishments, the provision has exhausted itself. If the object behind the provision was simply to restrict the applicability of the Scheme to certain establishments and the Scheme contained the provision to the effect that it would apply to those establishments only, there would not arise any occasion for considering it, except at the time of amendment of the Scheme by the Central Government in exercise of the power conferred by Section 7.

(3.) Proceeding on the assumption that the combined effect of the provisions of Sections 1(3) and 5 is that the Scheme will apply to an establishment mentioned in Schedule I and employing, fifty or more persons, and no more, it becomes clear at once that after the Scheme has made itself applicable to an establishment it will govern the acts of the employer. If the Act continues to apply, its provisions also will govern his acts, but if it does not continue to apply, the Scheme alone will govern his acts and it will continue to govern them. It can cease to govern them only if there is a provision to this effect either in it or in the Act. Neither the Act, nor the Scheme, contains any provision for the Scheme ceasing to govern the acts of the employer or to be in operation. Therefore, once the Scheme has made itself applicable to an establishment, it will continue to be applicable even if the Act can be said to cease to apply to the establishment. The ceasing of the applicability of the Act to the establishment will not automatically bring about the ceasing of the applicability of the Scheme because, as I explained earlier, the applicability of the Scheme depends upon its own contents and not upon the provisions of the Act. I cannot understand what meaning can be given to Section 1(3) other than this that it simply gives a direction to the Central Government about the establishments to be made, governable by it. The main object of the Scheme is to establish a fund and once a fund is established in a particular establishment, it must be administered in accordance with the Scheme. Not only the fund cannot vanish all of a sudden but also it cannot be dealt with in a manner different from that prescribed in the Scheme.