KAMALKAR SHANKAR WARDE Vs. CENTRAL BOARD OF TRUSTEES

JUDGEMENT

(1.) THIS is petition under Article 226 of the Constitution of India praying for issue of a Writ of Mandamus against the 3 respondents, being 1) The Central Board of Trustees under the Employees Provident Funds Act, 1952 and the Scheme framed thereunder, 2) Shri E. V. Ramreddy, the Central Provident Fund Commissioner and 3) Shri D. T. Ghatpande, Regional Provident Fund Commissioner, Maharashtra State, directing them not to enforce the provisions of the Employees' Provident Funds Act, 1952 and of the Scheme framed thereunder against the petitioners, who are carrying on business of manufacturing paper cones and paper tubes and for incidental reliefs.

(2.) THE short facts giving rise to the petition may be stated: The two petitioners carry on business in partnership in the name and style of Ms. Eastern Paper Tube Factory at Ashok Nagar, Kandivali, Bombay. Their factory at Kandivali admittedly employees more than 20 persons and the work of manufacturing paper cones and paper tubes is done there. The 3rd respondent as the Regional Provident Fund Commissioner of Maharashtra State addressed a letter dated 15th July 1963 to the petitioners to the effect that the Employees' Provident Funds Act, 1952 as amended from time to time and the Provident Fund Scheme framed thereunder were applicable to the petitioners' said factory or establishment at Kandivali with effect from 1st May 1963, inasmuch as during the said month and the subsequent months the said establishment had employed more than 19 persons and was engaged in an industry specified in Schedule 1 to the said, Act, the industry being paper industry enlisted at Item No. 5 in the Schedule. The 3rd respondent further informed the petitioners by his said letter the their said establishment had been allotted "mh-5094" as its Code number for the purposes of Employees' Provident Funds Act and the Scheme framed thereunder and called upon the petitioners to pay the employers' and the employees' contributions to the provident fund from 1st May 1963 and to comply with other requirements therein mentioned. The petitioners by their letter dated 22nd July 1963 informed the 3rd respondent that they were not manufacturing "paper" and as such their establishment or factory was not covered by any specified industry in Schedule 1 to the Act. Correspondence ensured between the petitioners on the one hand and the 3rd respondent on the other, during the course of which the petitioners were threatened with penal action being taken against them if they did not comply with the demand made on them and it appers, the petitioners made payments of diverse amounts to the 3rd respondent under protest. On 14th October 1963 the petitioners addressed letter to the 2nd respondent and after referring to the correspondence which they had with the 3rd respondent they stated that they did not manufacture a paper but that they purchased paper and paper board out of which cones and tubes were prepared or manufactured by them and that paper products could not be included in the Schedule industry indicated by the expression "paper". On 10th January 1964 the 2nd respondent informed the petitioners that the question regarding applicability of Employees' Provident Funds Act of 1952 and the scheme framed thereunder to their establishment had been examined and that it was found that the petitioners had been rightly covered under the scheduled head "paper" read with the definition of the expression "manufacture" as given in Section 2 (i) (a) of the Act and the petitioners were, therefore requested to comply with the statutory provisions as per the directions of the 3rd respondent. The petitioners have, therefore, filed the present petition for the issue of a Writ of Mandamus directing the respondents to withdraw and cancel the said notices issued to the petitioners by the 3rd respondent as also the threatened action of recovering damages or penalty and further to forebear from enforcing the provisions of the said Act and the scheme framed thereunder in respect of their factory and from taking any steps or proceedings in pursuance of the Act or the scheme framed thereunder. The petitioners have further prayed for an order directing the 3rd respondent to refund to the petitioners the diverse amounts deposited by them under protest.

(3.) THE principal question raised in this petition is whether the petitioners' establishment or factory, which manufactures paper products such as paper cones and paper tubes could be said to be an establishment or factory engaged in any industry specified in Schedule I to the Act within the meaning of Sub-clause (a) of Sub-section 3 of Section 1 of the Act. It is not disputed that the petitioners' establishment or factory has more than twenty-two persons in its employment and therefore the answer to the question raised in the petition will depend upon whether he petitioners' establishment is an industry "engaged in the manufacture of paper" as per item 5 in Schedule 1 to the Act. On behalf of the petitioners, reliance was placed upon Section 1 (3) (a) of the Act and upon the relevant entry to be found in Schedule I to the Act and it was contended by Mr. Sorabjee that since the petitioners' establishment was engaged not in the manufacture of paper as such but in the manufacture of paper products, such as paper cones and paper tubes, the petitioners' establishment could not come within the purview of the Act. The relevant provisions of the Act and the Scheme may be set out. Section 1 (3) (a) of the Act runs as follows: