VARJIVANDAS HIRJI Vs. D T GHATPANDE

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution of India. The petitioners are a partnership firm engaged in the business of manufacturing and dealing in Asafoetida. Respondent No. 1 is the Regional Provident Fund Commissioner appointed by the Central Government for the State of Maharashtra. He has also been appointed by the Government of Maharashtra as an Inspector under S. 13 of the Employees' Provident Funds Act, 1952. Respondent No. 2 is the Union of India. Respondent No. 1 has applied to the petitioners the provisions of the Provident Funds Act under a Notification issued by the Central Government on 7th March 1962 under S. (3) (b) of the Employees' Provident Funds Act, 19 of 1952 whereby the provisions of the said Act have been made applicable to every trading or commercial establishment employing 20 or more persons. The petitioners contend that they are an establishment which is a factory engaged in the manufacture of Asafoetida and under S. 1 (3) (b)) the provisions of the Employees' Provident Funds Act can only be applied to establishments which are not factories and that Respondent No. 1 has no jurisdiction to apply the said Act to them. They, therefore, seek a Writ of Mandamus or Prohibition or other appropriate Writ prohibiting the respondents from enforcing the provisions of Employees' Provident Funds Act against them. The Employees' Provident Funds Act, 19 of 1952, is hereinafter for brevity's sake referred to as "the Act", and the Notification dated 7th March 1962 is hereinafter referred to as "the Notification".

(2.) IN the petition the petitioners have impugned the validity of S. 19a of the Act as being ultra vires the Constitution. Mr. Setalvad for the petitioners has told us that before us the petitioners do not wish to take up this contention. Section 19a provides that if any difficulty arises in giving effect to the provisions of the Act, or if any doubt arises as to whether any particular establishment is or is not an establishment to which the Act applies by virtue of a Notification under S. 1 (3) (b), such doubt or difficulty has to be resolved by the Central Government and its order in such cases is made final. We invited the attention of Mr. Rangnekar for the respondents to this provision and asked him if the Central Government would like to resolve this difficulty or doubt, and whether Respondent No. 1 was prepared to refer the matter to the Central Government. Mr. Rangnekar informed us that as the matter involved a difficult question of interpretation of the provisions of the Act, the Government would like the matter to be decided by the Court and that they do not wish to take up a contention that S. 19a barred the jurisdiction of the Court.

(3.) THE petitioners state in the petition that they are a partnership firm registered under the provisions of the Indian Partnership Act 1932. They state that they carry on business as the manufacturers of Asafoetida and gum, and among other things they are dealers in Asafoetida and gum. For their business the petitioners have two premises, one is situated at 240, Samuel Street, Bombay, and the other at Dariasthan Street, Wadgadi, Bombay. The processing of gum and the manufacturing of compounded Asafoetida of various varieties is carried out by the petitioners at their premises at Dariasthan Street, while their administrative offices are situated at 240, Samuel Street. The petitioners state that they employ 19 persons as labourers on daily wages in connection with their manufacturing business and 12 persons in connection with their administrative work. They further state that their premises at 240, Samuel Street, are registered under the provisions of the Bombay Shops and Establishments Act.