KHAN GHULAM NABI SHAH Vs. PROVIDENT FUND COMMISSIONER

JUDGEMENT

(1.) THE petitioner has averred that he is a partner of the firm M/s Ghulam Nabi Shah and Co which runs a saw mill at Kadal Bal Pampore and the Mill is working seasonally and has no permanent staff or labour and never has the strength of labour or staff more than 8. The Employees Provident Fund Scheme 1961 providing for the provident fund of the employees applies to the factories under the Factories Act and also to businesses, to which the Act has been made applicable. The saw mill of the petitioner it is averred, does not come under the head, Businesses, to which the Act applies. The saw mill of the petitioner is not a factory within the meaning of the Factory Act. The petitioner does the sawing of the timber which he gets from forest coupes taken on lease by him. Therefore the question of any contribution to the Provident Fund payable in respect of saw mill of the petitioner does not arise as the Employees Provident Fund Scheme cannot be made applicable to it. Also this cannot be applied because the strength of labour does not exceed 8. Respondent No. 1; it is stated has asked respondent No. 2 to recover from the petitioner an amount of Rs. 7161.77 as provident fund contribution. This demand it is submitted is unjustified and illegal, The petitioner approached the Respondent No. 1 with a request that the demand note sent by him to respondent No. 2 is without jurisdiction and illegal. The respondent did not pay any head to it and has illegally proceeded in making recoveries from the petitioner. Respondent have no right or authority to recover arrears of Employees Provident Fund as arrears of land Revenue and the respondent No. 1 has only the right to institute a complaint for non payment of arrears as provided under the Employees provident Fund Act. The Employees for whom the Provident fund is alleged to be demanded have already left the service of the petitioners saw mill many years before. In view of this it is prayed that the court may issue a writ of mandamus restraining the respondents from realising any amount as Employees Provident Fund from the petitioner. The petition is supported by an affidavit.

(2.) IN the reply affidavit sworn by the Commissioner Jammu and Kashmir, Provident Fund, it has been averred that the petitioner is a partner of the business establishment which not only carries on business of sawing timber but also is engaged in the sale, purchase and storage of the goods thereof. The said business concern is also registered as a factory under the Factories Act and the petitioner has obtained a licence under the aforesaid Act. The petitioners establishment carries on business thorough out the year and strength of its employees is more than 8 as per report of the Provident Fund Inspector. There are as many as 13 employees working in the business concerned of the petitioner. The Provident Fund Scheme of the 1961 applies to the business establishment carried on by the petitioner. He is, therefore, bound to contribute to the Provident Fund Scheme as provided under the scheme. The petitioner was given repeated notice to contribute to the Provident Fund Scheme but he failed to do so. Ultimately process for the recovery of arrears was initiated against the petitioner. It is further submitted that the arrear of contribution can be recovered as arrears of land revenue. It is further solicited that the petition be dismissed. The contention of the petitioner that his establishment does not engage more than 8 labours at any time cannot be accepted on the ground that there is nothing on the record to lend any support to this contention. It is true that under sub clause. 3 (a) of Section 1 in order to attract the provisions of the Jammu & Kashmir Employees Provident fund Act of 1961 hereinafter called (The Act) there must be 10 or more persons employed in the establishment engaged in any industries specified in schedule I. The averment made by the petitioner in his petition that his establishment does not employ more than 8 labours has been denied outright in the reply affidavit by the respondent, rather it is pointed out that the concerned inspector who went on spot found that the establishment engaged more than 13 labourers. On behalf of the petitioner it is however argued that representation was made to the higher authorities in this behalf. In the said representation grievence was made of the fact that the Act did not apply to the factory of the petitioner as the same did not engage more than 8 labours and also that the same establishment is not an industry specified in schedule I of the Act but no copy of such representation has been attached with the petition, nor has the respondent admitted the receipt of any such representation. On the other hand the learned counsel for the respondent has referred me to a letter of the petitioner in the records of the respondent wherein no such points have been raised by the petitioner. The argument of the petitioner cannot therefore be acceded to on this score.

(3.) HOWEVER , the writ must succeed on a short point that Schedule I of the Act does not specify the saw mill as an industry to which the scheme of contribution of Provident Fund applies. Learned counsel for the respondent has relied on items 31 and 39 of the Schedule I. Item 31 relates to wood articles and 39 refers to every trading and commercial establishment engaged in the purchase sale or storage of any goods ... ... ... Now a saw mill does not manufacture wooden articles. The saw mill is engaged for sawing of timber. By sawing the timber it can convert it into scatlings, slippers and planks. But it cannot be said that it is engaged in the manufacture of articles of wood such as chairs, tables, sofas, teapoys etc. In my view planks scatling or slippers which are used for the purpose of construction of buildings or for other purposes cannot be said to be wood articles; nor can the saw mill fall within the purview of the item No. 39 because the petitioners establishment is not engaged for the purchase, sale or storage of any goods. No goods are purchased by the petitioner, nor are any such goods sold or stored in the establishment of the petitioner, Saw mill has not been expressly specified in the schedule. In the Indian Act before 1962 saw mil1 did not figure in the relevent schedule there. There was a controversy over this matter: This difficulty was realised and it was by amending Act of 1962 that the word saw mill was specifically introduced in the schedule. That, however, is not the case in the State Act, Saw mill is conspicuously missing from the schedule in the State Act. In view of this I am disposed to agree with the view enunciated on behalf of the petitioner that the establishment of the petitioner not being specifically mentioned in schedule 1 the scheme of the provident fund is inapplicable to it and that the saw mill does not fall within the purview of schedule I so as to make the Act applicable to it.