K. Ramunni v. The Regional Provident Fund Commissioner
1973-08-16
K.SADASIVAN, P.GOVINDAN NAIR
body1973
DigiLaw.ai
JUDGMENT P. Govindan Nair, C.J. 1. These appeals are from judgments dismissing Original Petitions under Article 226 of the Constitution taken by the appellants. The question was whether the appellants were liable to make contributions under the Employees' Provident Fund Act, 1952 (for short the Act). We may deal with these two appeals under a common judgment; for, the two cases raise questions regarding the ambit and the interpretation of section 2-A of the Act read with section 1 (3) (a) and (b) thereof. Before referring to the facts of these two cases we shall deal with the interpretation of section 2-A. 2. Section 2-A was inserted into the Act by the amending Act 46 of 1960. The section is in these terms: "2-A. Establishment to include all Departments and branches. ”For the removal of doubts, it is hereby declared that where an establishment consists of different departments or has branches, whether situate in the same place or in different places, all such departments or branches shall be treated as parts of the same establishment." 3. An 'establishment' has not been defined in the Act. 'Factory' however, has been, and the meaning attributed to the term is: "A factory means any premises, including the precincts thereof, in any of which a manufacturing process is being carried on or ordinarily so carried on, whether with the aid of power or without the aid of power." 4. In the absence of a notification under section 1 (3) (b), the Act will apply only to establishments which are factories engaged in any industry specified in Schedule I to the Act and in which 20 or more persons are employed. This is clear from section 1 (3) itself.
In the absence of a notification under section 1 (3) (b), the Act will apply only to establishments which are factories engaged in any industry specified in Schedule I to the Act and in which 20 or more persons are employed. This is clear from section 1 (3) itself. We may read that sub-section: "(3) Subject to the provisions contained in section 16, it (the Act) applies” (a) to every establishment which is a factory engaged in any industry specified in Schedule I and in which twenty or more persons are employed, and (b) to any other establishment employing twenty or more persons or class of such establishments which the Central Government may, by notification in the official gazette, specify in this behalf: Provided that the Central Government may, after giving not less than two months notice of its intention so to do, by notification in the official gazette, apply the provisions of this Act to any establishment employing such number of persons less than twenty as may be specified in the notification." 5. In the cases before us it is admitted that the 'industry' in which the appellants were engaged is one specified in Schedule I to the Act. In relation to part of his activities, the appellant in Writ Appeal 346/71 has a factory, within the meaning of the term in the Act, situate at Chalakudy in which he was engaged in the manufacture of medicinal preparations falling under the item "Medical and pharmaceutical preparations" in the schedule. The appellant in Writ Appeal 340/71 has got factories at Tellicherry, Palghat and Trichur where he was manufacturing biscuits, falling under the item "Biscuit making industry including composite units making biscuits and products such as bread, confectionery and milk and milk powder" in that Schedule. 6. The words 'consists' in 'where an establishment consists of different departments or has branches' in section 2-A of the Act indicates that the departments and branches of the establishment with the establishment must make one industrial unit. A department of an establishment is necessarily intimately linked with the establishment and, therefore, it is easier to find out whether a part of an establishment is a department of that establishment.
A department of an establishment is necessarily intimately linked with the establishment and, therefore, it is easier to find out whether a part of an establishment is a department of that establishment. Without trying to be exhaustive, it is sufficient for the purpose of this case to state that when the activities carried on in a part of an establishment is inter-linked with the activities of the establishment so as to form with it an integral whole, that part of the establishment can be said to be a department of the establishment. But where there are branches for an establishment in what circumstances the section can be said to be attracted is much more difficult to postulate. What was contended before us was that the principles that have been accepted for holding that different branches of an establishment with its main branch of head office formed 'one industrial establishment', must be applied for the purpose of understanding the ambit of section 2-A in this respect. We are inclined to accept this contention. Section 2-A cannot be understood or interpreted so as to make distinct and separate establishments into one so that all the employees in all such separate establishments may be brought under the Act. The Act is made specifically applicable only to specified industries described in Schedule I to the Act. The extent and application of the Act having been clearly delineated there would not be any justification in giving section 2-A a meaning which would have the effect of enlarging the scope and ambit of the Act. If the activities carried on in the branches or even departments, are not such as would fall under the Act, then the branches and the departments must normally be outside the Act. But if the branches and departments form an intimate part of the establishment, in which an activity specified in Schedule I to the Act is carried on as to form an intergral whole, with the establishment on the principles laid down for holding that the establishment with the departments and branches really make 'one industrial establishment', then and then only, will the branches and departments and the employees therein come within the purview of the Act.
That is the effect of section 2-A. The circumstances under which, apparently different establishments, in the form of branches or departments, can be said to form with the main establishment a single industrial establishment have been stated in a series of decisions of the Supreme Court. It is unnecessary for us to refer to them all; but we shall refer to a passage from the decision in Associated Cement Companies Ltd. v. Their Workmen, 1960 “ I L.L.J. I which reads:” "The Act not having prescribed any specific tests for determining what is 'one establishment' we must fall back on such considerations as in the ordinary industrial or business sense determine the unity of an industrial establishment, having regard no doubt to the scheme and object of the Act and other relevant provisions of the Mines Act, 1952, or the Factories Act, 1948. What then is 'one establishment' in the ordinary industrial or business sense? The question of unity or oneness presents difficulties when the industrial establishment consists of parts, units, departments, branches etc. If it is strictly unitary in the sense of having one location and one unit only, there is little difficulty in saying that it is one establishment. Where, however, the industrial undertaking has parts, branches, departments, units etc., with different locations, near or distant, the question arises what tests should be applied for determining what constitutes 'one establishment'. Several tests were referred to in the course of arguments before us, such as, geographical proximity, unity of ownership, management and control, unity of employment and conditions of service, functional integrality, general unity of purpose etc. To most of these we have referred while summarising the evidence of Mr. Dongray and the findings of the Tribunal thereon. It is, perhaps, impossible to lay down any one test as an absolute and invariable test for all cases. The real purpose of these tests is to find out the true relation between the parts, branches, units, etc. If in their true relation they constitute one integrated whole, we say that the establishment is one; if on the contrary they do not constitute one integrated whole, each unit is then a separate unit. How the relation between the units will be judged must depend on the facts proved, having regard to the scheme and object of the statute which gives the right of unemployment compensation and also prescribes a disqualification therefor.
How the relation between the units will be judged must depend on the facts proved, having regard to the scheme and object of the statute which gives the right of unemployment compensation and also prescribes a disqualification therefor. Thus, in one case the unity of ownership, management and control may be the important test; in another case functional integrality or general unity may be the important test; and in still another case, the important test may be the unity of employment. Indeed, in a large number of cases several tests may fall for consideration at the same time. " 7. If, by applying the principle laid down by the Supreme Court in this case, it is possible to say that the branch of an establishment taken with the establishment forms one industrial establishment, section 2-A will be attracted and by its application the branch and the employees in the branch will also come within the purview of the Act. Counsel contended that this interpretation, even though it limits the applicability of the Act to such departments and branches which form part of the establishment so as to make with the establishment one industrial establishment, has still the effect of extending the Act to employees other than those who are actually engaged in the industries specified in Schedule I. We shall explain this contention. The contention of the appellant in Writ Appeal 346/71 was that the establishments he had in Ernakulam and Trichur, where products manufactured at Chalakudy were sold, were carrying on only the activity of selling the products manufactured and, therefore, those establishments were not engaged in an industry specified in Schedule I. It was also pointed out that those establishments were not even factories as defined in the Act. So, it was urged that the interpretation which we have suggested would have the effect of applying the Act to employees who were engaged in activities different from those specified in the Schedule. This, of course, is the result of the interpretation which, we think, should be placed on the section. The question is not what would be the consequence if the section is so understood; but what the section means.
This, of course, is the result of the interpretation which, we think, should be placed on the section. The question is not what would be the consequence if the section is so understood; but what the section means. The intention seems to be that if an employer has factory and that factory is engaged in an industry specified in Schedule I to the Act and if that factory has departments or branches, which form part of the factory so as to make with the factory one industrial establishment, the branches must also be taken to be part of the establishment and, therefore, certainly engaged in an industry specified in Schedule I. It is because section 2-A should not extend the Act to establishments to which it would not apply that the interpretation that the branches and departments must with the establishment form one industrial establishment should be given to the section. If in a factory a manufacturing process is carried on and if the same factory employs people for carrying raw materials to the factory or if in the same factory premises the manufactured articles are sold and people are employed for the purpose of selling, it is difficult to say that those persons employed for the purpose of carrying the raw materials and for selling the articles manufactured are not persons engaged in the industry specified in the Schedule, the manufacturing process being one so specified. In such cases all the employees must be taken to be engaged in the industry. It is this principle that has been extended by the section to departments or branches which are not located in the same place; but at different places. That is why the section specifically says, "whether situate in the same place or in different places". The object of the section seems to be that by merely locating the departments or branches geographically at different places from the establishment, the effect or applicability of the statute must not be avoided. That we think, is the true construction to be placed on section 2-A and it is in consonance with the scheme of the Act and also in accordance with the principles that have been laid down, as we have said, in a number of cases in industrial law. 8. Now, the question is, how to apply this principle to the facts of these cases.
8. Now, the question is, how to apply this principle to the facts of these cases. In Writ Appeal 340/71, as we said earlier, the appellant-petitioner was engaged in manufacturing biscuits. The question arises only for the period from April, 1962 to 1st April, 1968. On 1st April, 1968 the business that had been carried on at Tellicherry, Palghat and Trichur was divided and by the judgment under appeal it has been held that the provisions of the Act will not apply to factories at Tellicherry, Palghat and Trichur, after 1st April, 1968. At Tellicherry there was a factory registered under the Factories Act satisfying the requirements of the Factories Act, whereas, at Palghat and Trichur the factories were not registered under the Factories Act and it appears that the Factories Act would not apply to the establishments at Palghat and Trichur. It is admitted that the process of manufacturing biscuits had been carried on also at Palghat and Trichur. Counsel for the appellant suggested that we must give for the term 'factory' not its full meaning as defined in the Act; but understand the term as defined in the Factories Act. In other words, the submission was that a factory which does not satisfy the definition in the Factories Act cannot be considered a 'factory' under the Act. We are unable to accept this contention. When a term is defined in a statute wherever that term occurs in that statute, the term must be understood in the sense in which it has been defined unless the context otherwise requires. The fact that 'factory' has been defined in the Factories Act in a different manner does not compel us to read the definition in any other sense than that in which it is defined in the Act. We are not able to say that because of the definition in the Factories Act, the context requires the understanding of the term 'factory' as defined in the Act, in a different manner. This contention we reject. So the establishments at Palghat and Trichur are also factories within the meaning of the Act. In these places 20 or more persons are not employed. So, if each of the establishments is taken separately, the Act would not apply to any of them.
This contention we reject. So the establishments at Palghat and Trichur are also factories within the meaning of the Act. In these places 20 or more persons are not employed. So, if each of the establishments is taken separately, the Act would not apply to any of them. The argument on behalf of the Regional Provident Fund Commissioner, 1st respondent in Writ Appeal 340/71, is that really the two places at Palghat and Trichur are the branches of the Tellicherry establishment. The learned Judge in the judgment, under appeal, has held so. Counsel for the appellant has contended that this finding is not justified. His complaint was that undue emphasis had been laid on a fairly innocent statement in para 3 of the petition, wherein the petitioner said: "The petitioner is the Managing Partner of the K.R. Biscuit Factory, Tellicherry. The petitioner was the sole proprietor of the K.R. Biscuit Company. It had branches at Palghat and Trichur. The petitioner made a division of his assets on 1st April, 1968 and according to the scheme of division the petitioner became the Managing Partner of K.R. Biscuit Factory, Tellicherry." Counsel invited our attention to paragraph 10 of the petition, wherein the petitioner stated that in the application that the petitioner made under section 19-A of the Act there was the categorical statement that the petitioner's factory will not fall within the purview of the Act, and that there was the assertion that the K.R. Biscuit Company, Trichur and Palghat have been wrongly assumed to be the branches of the factory at Tellicherry. Our attention was also drawn to paragraph 15 of the petition, which is the same effect. Counsel took us through Exts. P-6 and P-8 as well, wherein the same contentions have been raised. It was, therefore, submitted that when paragraph 3 is read in the light of these statements it is clear that there was no admission made by the petitioner that the establishments at Palghat and Trichur were the branches of the factory. The conclusion need not be rested on the basis of any admission that the establishments at Palghat and Trichur are branches of the factory at Tellicherry. We think the circumstances stated in the Supreme Court decision, from which we have extracted the relevant passage, for holding that the establishments form one industrial unit, exist in the case.
The conclusion need not be rested on the basis of any admission that the establishments at Palghat and Trichur are branches of the factory at Tellicherry. We think the circumstances stated in the Supreme Court decision, from which we have extracted the relevant passage, for holding that the establishments form one industrial unit, exist in the case. If there is unity of ownership, management and control, it may be possible to say that the establishments owned by the same individual and managed and controlled by the same individual form parts of a single establishment. Till 1st April 1968 the three factories were owned by the appellant. He was in full management and control of the three establishments. So by applying the principles of the decision of the Supreme Court, already referred to, the conclusion that the three units formed part of a single unit cannot be said to be wrong. We see, therefore, no grounds to interfere with the judgment under appeal. 9. As far as Writ Appeal 346/71 is concerned, it is seen that what is sold in the various branches by the appellant is the products manufactured in his factory at Chalakudy. We have to accept the finding that the branches with the factory in Chalakudy formed a single unit. For deciding whether the branches engaged in the business of selling the products would satisfy the conditions of section 2-A, we have to see whether there is functional integrality, which is one of the tests laid down by the Supreme Court. There is functional integrality and so the branches form a part of the establishment so as to make with it one establishment. Section 2-A is thus attracted and such establishments must be taken to be departments or branches of the factory at Chalakudy. In this view there is no reason to interfere with the judgment, under appeal, in this case also. We, therefore, dismiss Writ Appeals Nos. 340 and 346 of 1971. We direct the parties to bear their costs.