Judgment :- 1. In the compound where an establishment called "Raja Industries" is situated there are two more establishments, "Patel Timber Industries" and "Regal Saw Mills". Previously there was one more establishment there, Malabar Timbers, but it stopped functioning in 1967-68. On March 2,1968 the Provident Fund Inspector, pw. 2, visited the Raja Industries and then be found that it was not functioning as required by the provisions of the Employees' Provident Funds Act. for short, the Act. Then he prosecuted the revision petitioners, who are the partners of the firm, "Raja Industries" for not making contributions towards the provident funds of it employees and not maintaining records and filing statements connected therewith and thereby violating the provisions of Para.36 (2) (a) and (b) and 38(1) and (2) of the Employees' Provident Funds Scheme. There were four prosecutions and they related to four different periods from September, 1967 to June, 1968. In them the District Magistrate, Ernakulam, convicted the revision petitioners and each of them was sentenced in each case on each count to pay a fine of Rs. 51 and in default to undergo simple imprisonment for one week. The convictions and sentences were confirmed in appeal by the Sessions Judge, Ernakulam. 2. According to the revision petitioners "Raja Industries" is not an establishment employing 20 persons or more so as to attract the provisions of the Employees' Provident Fund Scheme framed under the Act. S.1(3) of the Act shows that the provisions of the Act have application only to establishments which employ twenty or more persons. The word "employee" as defined in S.2(f) of the Act meant any person who is employed for wages in connection with the work of an establishment. Persons casually and not regularly employed for purposes other than the regular work of the establishment would not come under that category. For being considered an employee the work that a person employed does should be connected with the work of the establishment. If the work he does is extraneous to the work in the establishment he cannot be considered as an employee coming under the Act. In P. F. Inspector v. T. S. Hariharan AIR. For being considered an employee the work that a person employed does should be connected with the work of the establishment. If the work he does is extraneous to the work in the establishment he cannot be considered as an employee coming under the Act. In P. F. Inspector v. T. S. Hariharan AIR. 1971 S.C.1519 the Supreme Court in considering establishments employing twenty persons or more as contemplated by the Act said: "It is therefore, obvious that this Act is intended to apply only where an establishment has attained sufficient financial stability and is prosperous enough to be able to afford regular contribution provided by the Act. Contribution by the employer is an essential part of the statutory scheme for effectuating the object of inducing the workmen to save something regularly. The establishment, therefore, must possess stable financial capacity to bear the burden of regular contribution to the fund under the Act * * * * * * The financial capacity of the establishment to bear the burden must, therefore, have some semblance of a reasonably long term stability. In other words, the employment of requisite number of persons must be dictated by the normal regular requirement of the establishment reflecting its financial capacity and stability. It, therefore, follows from this that the number of persons to be considered to have been employed by an establishment for the purpose of this Act has to be determined by taking into account the general requirements of the establishment for its regular work which should also have a commercial nexus with its general financial capacity and stability. This seems to us to be the correct approach under the statutory scheme. 8. To accede to the appellant's argument would lead to some startling consequences, by way of illustration, if for the purpose of extinguishing accidental fire an establishment is compelled to employ a few persons for about a couple of hours, even then however weak and unstable its general financial capacity, the establishment would be covered by the Act and would have to contribute towards the provident fund for the benefit of its regular employees, of course excluding those whose services were utilised for a short while for extinguishing the fire. In this illustration we are assuming that the employees would have no objection to being governed by the Act. This, in our opinion, could never have been the intention of the legislature. In this illustration we are assuming that the employees would have no objection to being governed by the Act. This, in our opinion, could never have been the intention of the legislature. 9. Considering the language of S.1 (3) (b) in the light of the foregoing discussion it appears to us that employment of a few persons on account of some emergency or for a very short period necessitated by some abnormal contingency which is not a regular feature 9f the business of the establishment and which does not reflect its business prosperity or its financial capacity and stability from which it can reasonably be concluded that the establishment can in the normal way bear the burden of contribution towards the provident fund under the Act would not be covered by this definition. The word 'employment' must, therefore, be construed as employment in the regular course of business of the establishment; such employment obviously would not include employment of a few persons for a short period on account of some passing necessity or some temporary emergency beyond the control of the company. This must necessarily' require determination of the question in each case on its own peculiar facts. The approach pointed out by us must be keeps in view when determining the question of employment in a given case." In the light of those observations the tacts here can be considered. When he visited Raja Industries pw. 2 was given the extract of the muster roll for the month of July, 1967. That was marked as Ext. P3 in one case and Ext. P4 in the remaining cases. pw. 2 admitted that the prosecutions were based solely on the basis of that extract. In it the names of 20 persons were mentioned. It was by taking those persons as employees that the court found Raja Industries to be an establishment employing twenty persons. Although the names of 20 persons were mentioned in the extract one person was recorded absent and only 19 persons were shown to have actually worked in the establishment. The marking of a person as absent by itself does not show he is in the regular employment of the establishment. If he was expected to be present but he did not present himself and another was employed in his place he would be marked as absent. The marking of a person as absent by itself does not show he is in the regular employment of the establishment. If he was expected to be present but he did not present himself and another was employed in his place he would be marked as absent. So the extract of the muster roll produced by itself is insufficient to show that more than 19 persons were engaged in the work in the Raja industries. 3. Although pw. 2 could not give the details of the persons whom be found in "Raja Industries" when he visited it he said that they were more than twenty. But the evidence of the manager of the "Raja Industries", dw.1, shows that some of them were persons who had no connection whatsoever with the work in the "Raja Industries" and that they were only casual labourers, engaged in unloading timber which was being transported to the "Raja Industries". 4. It is true that "Raja Industries" consumes some of the articles produced in the other industries situated in the same compound where the "Raja Industries" is situated. But that does not show that they are units or departments of Raja industries. In a publication in a newspaper "Raja Industries" is seen to have declared that the services of the employees in the "Raja Industries" and the other industries in the same compound were terminated after paying them adequate compensation. But the evidence of dw.1 shows that there was a strike in all the industries conducted in the same compound and that it was in connection therewith that the publication was made. When there is strike in one industry it naturally spreads to other industries also and common action taken by the employers at the time does not show that the industries in which there was strike at the time were one and the same. As Patel Timber Industries and Regal Saw Mills are independent and separate industries, employees there cannot be taken into consideration at all in determining the number of employees in the Raja Industries. 5. Every industry has its stage of infancy when it has its own teething troubles. The Act in S.16 takes due note of it and exempts from the operation of the Act certain establishments for certain specified periods. 5. Every industry has its stage of infancy when it has its own teething troubles. The Act in S.16 takes due note of it and exempts from the operation of the Act certain establishments for certain specified periods. In the case of such establishments it is only after the infancy period is over that the provisions of the Act begin to operate. The Supreme Court said that the number of persons employed is usually determined by taking into account the requirements of the regular work in the factory and that it should have a commercial nexus with its general financial capacity and stability. No attention was paid by the courts below to that aspect of the matter. 6. It has not been satisfactorily proved that Raja Industries is an establishment employing twenty persons or more as contemplated by the Act. It has not been proved beyond reasonable doubt that the revision petitioners are guilty of the offences for which they have been convicted. 7. In the result this revision petition is allowed, the convictions and sentences of the revision petitioners are set aside and the revision petitioners are acquitted. Fine, if paid shall be refunded to them. Allowed.