REGIONAL. PROVIDENT FUND, COMMISSIONER OF WEST BENGAL TRIPURA AND ANDAMAN AND NICOBAR ISLANDS Vs. CEMENTATION CO. LTD.

JUDGEMENT

(1.) The petitioner carries on business of contractors in building and construction industry. The petitioner has a go-down where the petitioner carries on works of repairs and maintenance of petitioner's own equipments which are used in buildings and construction works. It is the definite case of the petitioner that no repairs are carried out in the said workshop to any equipment belonging to any outsider. The question, is, whether, the petitioner is covered by the Employees' Provident Fund Act, 1952. Section 1 (3) (b) of the Act prescribed that the provisions of the Act might be made applicable to any other establishment in addition to those specified in Schedule I of the Act or another class of establishment which the Central Government might by notification in the Official Gazette specify in that behalf. It is admitted that the industry of the petitioner or the establishment of the petitioner did not belong to the Schedule I of the Act, There was, however, a notification in exercise of the aforesaid powers under Section 1 (3) (b) of the Act which made the Act applicable, inter alia, to the establishment of the "engineers and engineering contractors, not being exclusively engaged in building and construction industry." As a result of the aforesaid notification engineering contractor came within the purview of the Act except those who were exclusively engaged in building and construction industry. By a letter dated the 19th of June, 1965 of the Regional Provident Fund Commissioner, West Bengal the petitioner was informed that the Employees' Provident Fund Act, 1952 applied in case of the petitioner and compliance was requested of the provisions of Act. The petitioner challenged this notice by an application under Article 226 of the Constitution. The application came up before T. K. Basu, J. and the learned Judge by his order and judgment dated the 6th of January, 1970 made the rule absolute directing the respondent to recall and/or cancel or withdraw notice dated the 19th of June, 1965. The learned Judge came to the conclusion that the petitioner's establishment was not covered by the provisions of the aforesaid notification.

(2.) The tests or the principles under which a particular company or establishment which carries on more than one activities, should be considered for the purpose of applicability of the provisions of this Act, have been clearly laid down by the Supreme Court in the cases of Regional Provident Fund Commr., Bombay V/s. Shree Krishna Metal Manufacturing Co., Bhandara, 1962 AIR(SC) 1536and the Associated Industries (P.) Ltd. V/s. Regional Provident Fund Commr., Kerala, 1964 AIR(SC) 314According to the aforesaid decisions it is necessary to find out if one of the activities carried on by a company or establishment can be called the primary or the principal activity and others incidental or ancillary activities. In a particular case if there is a primary or principal activity then the next question is to find out whether the principal or primary activity comes within the purview of the Act; mere carrying on of the incidental or subsidiary activity will not attract the operation of the Act. In view of the averments made in the petition and in the affidavit-in-opposition the learned Judge was right in holding that there was no dispute that the primary activity was outside the ambit of the Act. In the aforesaid view of the matter we are of the opinion that the learned Judge was right in making the rule) absolute. The appeal accordingly fails and is dismissed.

(3.) There will be no order as to costs.