M/S. GULSHAN KHANDSARI UDYOG Vs. UNION OF INDIA, NEW DELHI THROUGH THE SECRETARY IN THE MINISTRY OF LABOUR AND EMPLOYMENT AND ANOTHER

JUDGEMENT

(1.) THESE two connected Special appeals directed against the common judgment dated 20-3-1967, delivered by the learned single Judge in connected Writ Petitions Nos. 2174 of 1964 and 3003 of 1966, involve similar questions of fact and law. Therefore, we also propose to decide these appeals by a common judgment.

(2.) THE appellants are partnership firms of the district of Muzaffarnagar, established in 1958, by a licence granted under the Factories Act, for manufacturing khandsari sugar by the open pan process. In 1952, the Employees Provident Funds Act 19 of 1952 (hereinafter called the Act) came into force, along with Schedule I attached thereto, mentioning various industries to which the Act was to apply. Under Section 4 of the Act the Central Government was authorised to add to Schedule I any other industry in respect of the employees whereof it was of the opinion that a provident fund scheme should be framed and applied. In 1956, the Central Government, by necessary notification added sugar industry in Schedule I, with the result that the employees provident fund scheme became applicable to the sugar industry as well. Accordingly, the Regional Provident Fund Commissioner, U. P., by his letter dated 27-5-1961 called upon the appellants in appeal No. 216 of 1967 (M/s. Gulshan Khandsari Udyog) to implement the provident fund scheme for their employees with effect from 31-12-60. Thereupon the Muzaffarnagar Gur and Khandsari Udyog Association made a representation to the Central Government to the effect that the Khandsari units were not engaged in the manufacture of Sugar and therefore, the provisions of the Act were not attracted to their industry. On 23-11-1963 the Regional Provident Fund Commissioner, U. P., informed the appellants that the Government of India had decided that the Act and the scheme were applicable to those units as well which were engaged in the manufacture of Khandsari. In doing so, the Central Government had obviously acted under the Provisions of Section 19-A, which empowered it to remove difficulties as and when the same arise in giving effect to the provisions of the Act, and if any doubt exists, inter alia, as to whether a factory is engaged in any industry specified in Schedule I.

(3.) THE main point canvassed before the learned single Judge was whether Khandsari is sugar within the meaning of the First Schedule to the Act. Two other points, which were urged before the learned Single Judge, were: firstly, that even if the Act applied to the khandsari industry, the scheme was not applicable to the appellants unit inasmuch as it was not a seasonal factory within the meaning of the Act; and secondly the unit did not engage the kind of employees mentioned in paragraph 26 of the scheme, who may be entitled to the benefit of the Provident Fund. As regards these two points, the learned single Judge has rightly pointed out that the appellants had not raised them before the Regional Commissioner, who was entitled to decide the same and whose decision on these points was to be final. The appellants had not even furnished the names and the number of such employees who were claimed not be entitled to the benefits of the scheme. These questions of fact had yet to be decided by the Regional Provident Fund Commissioner, U. P. and they could not, for the first time, be urged in the writ petition.