JUDGMENT : P.C. Misra, J 1. In all these writ applications the prayer is to quash the order of the Regional Provident Fund Commissioner (hereinafter called the 'Commissioner') u/s 7-A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter called the 'Act'). The Petitioners are officers of different Departments of the State Government who challenge the applicability of the Act to the establishment of which they are in charge. They have also challenged the order of the Commissioner on the grounds that due opportunity was not given to the Departments to be heard and that the Order is otherwise invalid even if it is assumed that the Act is applicable to their Departments. Thus common questions of law and fact arise for consideration on all these cases for which they were heard analogously and this judgment shall govern all those cases. 2. Under the Works Department of the Government of Orissa there are different establishments and Divisions in charge of construction and maintenance of roads and buildings of the Government. The Commissioner issued notices to the Executive Engineers of the concerned divisions calling upon them to deposit the provident fund dues, family pension fund contributions, administrative charges, employees' deposit linked insurance contribution and employees deposit linked insurance administrative charges and various other statutory returns in prescribed forms on the basis that the establishment in question has been covered by the Act and the Scheme framed there under with effect from 30-10-1980. A notification of the Government of India in exercise of its powers conferred by Clause (b) of Sub-section (3) of Section 1 of the Act was relied upon for the purpose of extending the provisions of the Act and the Scheme to every establishment engaged in Building and Construction Industry, which according to the Regional Provident Fund Commissioner includes the Departments of the Government. The Petitioners disputed the applicability of the Act to their establishments and submitted written objections before the Commissioner to the same effect. The Commissioner by the orders impugned in these writ applications determined the liability of the Petitioners u/s 7-A of the Act in respect of different accounts such as Employees' Provident Fund, family pension fund contributions, administrative charges and employees' deposit linked insurance contribution and further directed for initiation of proceedings for recovery of the said amounts. The Commissioner by the orders impugned in these writ applications determined the liability of the Petitioners u/s 7-A of the Act in respect of different accounts such as Employees' Provident Fund, family pension fund contributions, administrative charges and employees' deposit linked insurance contribution and further directed for initiation of proceedings for recovery of the said amounts. Pursuant to such determination, demand notices were issued to each of the Petitioners requiring them to make the deposit within the time stipulated in the said notices. The order of the Commissioner u/s 7-A of the Act as well as the notice of demand issued in pursuance thereof are sought to be quashed in these writ applications. 3. It has been urged on behalf of the Petitioners that the Commissioner has assumed jurisdiction not vested in him by law inasmuch as the Act is not applicable to the Government establishments. According to the Petitioners, the Act is applicable to such establishment which is a factory engaged in any industry specified in Schedule. I of the Act or to any other establishments to which it has been made applicable by a specific notification u/s 1(3)(b) of the Act. 4. Section 1, Sub-section (3) of the Act spells out the establishment to which the Act applies. According to that provision it applies to (a) to every establishment which is a factory engaged in any industry specified in Schedule I and in which 20 or more persons are employed; and (b) to any other establishment employing 20 or more persons or class of such establishments which the Central Government may by notification in the Official Gazette specify in this behalf. Sub-section (sic) of Section 1 empowers the Central Government also to apply the provisions of the Act to those establishments for which the employer and the majority of the employees agree for the same. We are not concerned in this case as to the establishment to which the Act may apply by virtue of Section 1(4) of the Act. The liability of the Petitioners under the Act if at all would be by virtue of Section 1(3) of the Act. It is agreed at the bar that the establishments of the Petitioners would not come within Section 1(3)(a) of the Act as the same are not factories which have been specified in Schedule I appended to the Act. The liability of the Petitioners under the Act if at all would be by virtue of Section 1(3) of the Act. It is agreed at the bar that the establishments of the Petitioners would not come within Section 1(3)(a) of the Act as the same are not factories which have been specified in Schedule I appended to the Act. If at all the Act is made applicable to these establishments, it would come within Clause (b) of Sub-section (3) of Section 1 of the Act. Section 1(3)(b) of the Act reads as follows: 1(3). Subject to the provisions contained in Section 16, it applies -- xx xx xx xx (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. It gives power to the Central Government to make the Act applicable to any other establishment not falling u/s 1(3)(b) of the Act which has to be done by a notification published in the Official Gazette. The notification in question by virtue of which the Commissioner assumes jurisdiction in respect of the establishments in question has been annexed to the writ applications and is quoted below for reference: G.S.R. 1069 -- In exercise of the powers conferred by Clause (b) of Sub-section (3) of Section 1 of the Employees" Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), the Central Government hereby specifies every establishment engaged in Building and Construction Industry and in each of which twenty or more persons are employed as a class of establishment to which the provisions of the said Act shall apply with effect from the 31st Oct. 1930. According to the language of the said notification, the Act shall apply to every establishment engaged in building and construction industry in which twenty or more persons are employed with effect from 31st Oct. 1980. 1930. According to the language of the said notification, the Act shall apply to every establishment engaged in building and construction industry in which twenty or more persons are employed with effect from 31st Oct. 1980. It has been contended by the Petitioners that these establishments of the Government do not come within the category of Establishment' to which the Act would apply by virtue of the aforesaid notification. It has been argued that the notification does not name the establishments for which it cannot be extended to those establishments of the Government. It has been further argued that the establishment of the Petitioners are not engaged in building and construction Industry as the building and construction work required to be done by the Government in Works Department is given to another agency i.e. contractors who undertake to complete the work as per the agreement entered into between them. In this connection they contend that it is the contractors who employ workers and maintain the establishment of their own for the purpose of accomplishing the work with which the Departments of the Government are no way concerned. It is the contractor who employ his workers, pays their wages and as such there is no relationship of employer and employee between the Department and the workers. It is on these basis that it has been argued that the Act cannot be made applicable to the Petitioners' Departments. 5. Learned Counsel appearing for the Commissioner has argued that direct relationship of employer and employee is not necessary for the Act to apply to the establishment. According to him, the Department of the Government leaves the work to be done by the contractors who is an agent of the Government and in that view of the matter, the principal employer comes within the purview of the notification of the Government and is bound to comply with the provisions of the Act and the Scheme. 6. In order to find out if the Department of the Government of the establishments working under the said Department would be governed by the notification in question, it is necessary to analyse as to whether establishments of the Petitioners are engaged in building and construction industry and if twenty or more persons have been employed therein. 7. 6. In order to find out if the Department of the Government of the establishments working under the said Department would be governed by the notification in question, it is necessary to analyse as to whether establishments of the Petitioners are engaged in building and construction industry and if twenty or more persons have been employed therein. 7. The word establishment' though according to the dictionary meaning, means a place fixed for residence or business", "institution" and "a place where manufacturing process is carried and, it has been given different meanings in different enactments. The same word has not been defined in the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, In Contract Lab our (Regulation and Abolition) Act, 1970 it has been defined to mean "any office or department of the Government or any office or department of the local authority, or any place where any industry, trade, business, manufacture or occupation is carried on." According to the definition of that word in the National Service Act, 1972 "any office" or "any place where any industry, trade business or occupation is carried on, and includes any technical institution or training centre." The words "establishment" in connection with the Employees' Provident Funds Act was interpreted in the decision reported in AIR 1965 Mad 446 Sri Varadarajaswami Transport (P) Ltd. v. Regional Provident Fund Commr., Madras to mean "an organisation which employs persons between whom and the establisment the relationship of employee and employer comes to exist." Applying this broad definition the Departments of the Government which employ persons to carry out different works and in relation to whom there exists relationship of employer and employee, may be called "establishment". In order to bring these establishments within the fold of the notification, Annexure-2, it is further necessary to find out as to whether these establishments of the Government are engaged in building and construction industries and if twenty or more persons have been employed there under. 8. The learned Counsel appearing for the Petitioners has strenuously urged that the Departments of the Government or the establishments set up there under for carrying on its work are industries nor they can be said to be engaged in any building and construction industries. 8. The learned Counsel appearing for the Petitioners has strenuously urged that the Departments of the Government or the establishments set up there under for carrying on its work are industries nor they can be said to be engaged in any building and construction industries. According to him, the building and construction work is given to another independent agency, i.e. the contractor, who undertakes to complete the work as per the agreement entered into with the Government. Neither the Government nor its Officers through whom the Departments of the Government are run are in any way concerned with the workers engaged by the contractor except that the work is required to be done and completed in accordance with the specification given to the contractor and the quality is controlled by the Government. According to him, it is the contractor, who employs workers, pays their wages and other remunerations, regulate and control their terms of engagement and not the Government. By exercising the power of supervision for proper maintenance of the work of the contractor, the Government cannot be said to be the employer in relation to the person, who are employed by the contractor. The learned Counsel appearing for the opposite party on the other hand has argued that the establishments run by the Government are the principal employers, who get the work done through the agency of the contractors and they are liable to pay the Provident Fund as required under the Act and the Scheme. Various decisions have been referred to in this connection by either of the parties which I would presently deal with to find out if the Petitioners' establishment in these writ applications and industries can be said to be carrying on Building and Construction Industries. 9. In a decision reported in The State of Bombay and Others Vs. The Hospital Mazdoor Sabha and Others, were dealing with a question whether the hospital run by State for giving medical relief to citizens and imparting medical education is an 'industry' within Section 2(j) of the Industrial Disputes Act, 1947. Their Lordships observed that it is difficult to state definitely or exhaustively the possible attributes, the presence of which makes an activity an undertaking within Section 2(j) of the Act. Their Lordships observed that it is difficult to state definitely or exhaustively the possible attributes, the presence of which makes an activity an undertaking within Section 2(j) of the Act. Their Lordships further observed that as a working principle it may be stated that an activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material services to the community at large or a part of such community with the help of employees is an undertaking. It was further explained in the said decision that such an activity generally involves the co-operation of the employer and the employees; and its object is the satisfaction of material human needs. It must be organised or arranged in a manner in which trade or business is generally organised or arranged. Thus, the manner in which the activity in question is organised or arranged, the condition of the co-operation between employer and the employee necessary for its success and its object to (render material service to the community can be regarded as some of the features which are distinctive of activities to which Section 2(j) of the said Act applies. In Secretary, Madras Gymkhana Club Employees' Union Vs. Management of the Gymkhana Club their Lordships were concerned with the question whether the Club comes within the definition of "Industry" as given in the Industrial Disputes Act. It was held in that case: The definition of "Industry" is in two parts. In its first part it means any business, trade, undertaking, manufacture or calling of employers. This part of the definition determines an industry by reference to occupation of employers in respect of certain activities. These activities are specified by five words and they determine what an industry is and what the cognate expression 'industrial' is intended to convey. This is the denotation of the term or what the word denotes. xx xx xx xx xx The second part views the matter from the angle of employees and is designed to include something more in what the term primarily denotes. By the second part of the definition any calling, service, employment, handicraft or industrial occupation or avocation of workmen is included in the concept of industry. This part gives the! extended connotation. By the second part of the definition any calling, service, employment, handicraft or industrial occupation or avocation of workmen is included in the concept of industry. This part gives the! extended connotation. If the activity can be described as an industry with reference to the occupation of the employers, the ambit of the industry, under the force of the second part, takes in the different kinds of activity of the employees mentioned in the second part. But the second part standing alone cannot define 'industry'. An industry is not to be found in every case of employment or service. An individual who employs a cook gets service from his employee whose avocation is to serve as a cook but as the activity of the. individual is neither business, nor trade, nor an undertaking, nor manufacture, nor calling of an employer, there is no industry. By the inclusive part of the definition the lab our force employed in an industry is made an integral part of the industry for purposes of industrial disputes although industry is ordinarily something which employers create or undertake. Their Lordships further observed: Before the work engaged in by an employer can be described as an industry, it must bear the definite character of 'trade' or business or 'manufacture' or 'calling' or must be capable of being described as an undertaking resulting in material goods or material services. In the case reported in The Management of Safdarjung Hospital, New Delhi Vs. Kuldip Singh Sethi, their Lordships took the view 'that an 'industry' as defined in Section 2(j) of the Industrial Disputes Act exists only when there is a relationship between the employers and employees, the former engaged in business, trade, undertaking, manufacture or calling of employers and the later engaged in any calling, service, employment, handicraft or industrial occupation or avocation. There must, therefore, be an enterprise in which the employers follow their avocations as detailed in the definition and employ workmen who follow one of the avocatioas detailed for workmen. In the decision reported in The State of Bombay and Others Vs. There must, therefore, be an enterprise in which the employers follow their avocations as detailed in the definition and employ workmen who follow one of the avocatioas detailed for workmen. In the decision reported in The State of Bombay and Others Vs. The Hospital Mazdoor Sabha and Others, their Lordships held that the hospital which is run by the Government is an industry within the meaning of Section 2(j) of the Act as the conventional meaning attributed to the words 'trade and business' has lost some of its validity for the purpose of industrial adjudication, and, therefore, in constructing the wide words used in Section 2(j) it would be erroneous to attach undue importance to attributes associated with business or trade in the popular mind in days gone by. In the case of the The Management of Safdarjung Hospital, New Delhi Vs. Kuldip Singh Sethi, their Lordships did not accept the concept of 'industry' as explained in the abovementioned decision (reported in The State of Bombay and Others Vs. The Hospital Mazdoor Sabha and Others. Approving the analysis made in a later decision of the Court reported in Secretary, Madras Gymkhana Club Employees' Union Vs. Management of the Gymkhana Club, their Lordships held that if a hospital, nursing home or dispensary is run as a business in a commercial way there may be found elements of an 'industry' there. In such a case it becomes a business. Hospital run by Government and even by private associations, not on commercial lines but on Charitable lines or as part of the functions of Government Department of Health cannot be included in the definition of industry. The entire question was reviewed in a later decision of the Supreme Court reported in Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, decided by seven Judges. In the said decision their Lordships overruled several earlier cases of the same Court and held that 'industry' as defined in Section 2(j) has a wide import and in considering whether an 'establishment' is an 'industry' the absence of profit motive or gainful objective is irrelevant. A. Rajappa and Others, decided by seven Judges. In the said decision their Lordships overruled several earlier cases of the same Court and held that 'industry' as defined in Section 2(j) has a wide import and in considering whether an 'establishment' is an 'industry' the absence of profit motive or gainful objective is irrelevant. Their Lordships held that where there is (i) systematic activity, (ii) organised by co-operation between employer and employee (the direct and substantial element is chimerical, (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss as for example making on a large scale presad or (foo), prima facie, there is an 'industry' in that enterprise. This decision has exhaustively discussed the meaning of the word "industry" as defined in Section 2(j) of the Industrial Disputes Act. 10. In the case reported in People's Union for Democratic Rights and Others Vs. Union of India (UOI) and Others, (commonly known as Asiad case), their Lordships considered the question where the workmen whose cause has been championed by an organisation of the employees, though employees of the contractor can be said to be the employee of Union of India, the Delhi Administration and the Delhi Development Authority which have entrusted the construction work to Asiad Projects to the contractors. The question was whether these establishments, namely, the Union of India, the Delhi Administration and the Delhi Development Authority had the legal obligation for observance of the various lab our laws by the contractors. Referring to Section 20 of the Contract Lab our (Regulation and Abolition) Act, 1970, their Lordships held that if any amenity required to be provided under Sections 16, 17, 18 and 19 of the said Act for the benefit of the workmen employed in an establishment is not provided by the contractor, the obligation to provide such amenity rests on the principal employer and therefore, if in the construction of the Asiad Projects, the contractors do not carry out the obligation imposed upon them by any of these sections, the Union of India, the Delhi Administration and the Delhi Development Authority as principal employers would be liable and these obligations would be enforceable against them. 11. 11. Dealing with the, definition of "employee" in the Employees Provident Funds and Miscellaneous Provisions Act (19 of 1952) their Lordships in a decision reported in P.M. Patel and Sons and Others Vs. Union of India (UOI) and Others, held that the terms of the definition of the said expression is very wide which include not only persons employed directed by the employer, but also persons employed through a contractor. In that case the Petitioners were engaged in the manufacture and sale of beedis. As stated in the said case the lab our employed in the manufacture of beedis consisted of different categories; (i) those who were employed at the factory such as administrative and clerical staff/accountants, packers, checkers and bhattimen; (ii) those employed by the manufacturers directly, who prepare the beedis at home after obtaining supply of raw material consisting of tabacco, beedi leaves and thread from the manufacturers; and (iii) those who are employed by the manufacturers through the contractors and the manufactures pass on the raw materials to such workers for rolling the beedis in their dwelling house; and (iv) those to whom the work is entrusted by independent contractors who treat the workers as their own employees and get the work done by them either at their own premises or in the dwelling homes of the workers in order to fulfil and complete contracts entered into with the manufacturers for the supply of the finished product from the raw material supplied by the manufacturers to the contractors. It was contended in that case that while the Employees' Provident Funds Act and the Scheme may be applicable to the workers in the factory they cannot be extended to the home workers because there is no relationship between the manufacturers and the home workers. It was submitted that a home worker cannot be described as an 'employee' within the definition set forth in Clause (f) of Section 2 of the Employees' Provident Funds Act. It was also contended that the Act and the Scheme cannot be applied to the home workers in the beedi industry inasmuch as they are subject to no retirement age and there is no power with the manufacturer to retire such home workers on the ground of superannuation. Having regard to the peculiar features of the arrangements under which the home workers manufacture beedis. Having regard to the peculiar features of the arrangements under which the home workers manufacture beedis. it was contended that the Act should not be made applicable in relation to them. Their Lordships rejected the aforesaid contentions and held that the home workers are "employees" within the definition contained in Clause (f) of Section 2 of the Employees' Provident Funds Act. For the aforesaid conclusion, their Lordships to some extent relied upon the position that the employment of the home workers was in regular course of business in the process of manufacture of beedis. 12. On the basis of the law so clearly laid by the Supreme Court, which gives guidelines to determine whether "establishment" is an "industry" within the meaning of Section 2(j) of the Industrial Disputes Act, I would proceed to examine whether the provisions of the Employees' Provident Funds Act and the Scheme framed there under would be applicable to the Works Department of the State. Since the Employees' Provident Funds Act does not define the word 'industry', the conceptions of the word 'industry' may be borrowed from the Industrial Disputes Act which is also a beneficial legislation for the labourers. It is also clear that it is the character of the activity which is one of the primary tests to determine the nature of the establishment and whether the same is an 'industry'. As has been argued by the learned Counsel for the Petitioners, the Government in its Works Department usually do not undertake any construction work by themselves. The construction of a building or road etc. or the maintenance thereof are usually entrusted to contractors who execute the work as per the specifications of the Government. The contractors employ persons of their own choice and the terms of the employment including the remunerations to be paid to such employees are entirely matters under the authority and control of the contractor and not of the Government. From the nature of works entrusted by the Government, we are unable to conclude that the activity of the Works Department of the Government can hardly be said to be systematically and habitually undertaken, though the ultimate result gives material services to the community at large. From the nature of works entrusted by the Government, we are unable to conclude that the activity of the Works Department of the Government can hardly be said to be systematically and habitually undertaken, though the ultimate result gives material services to the community at large. This also lacks the co-operation of the employer and the employee in the sense that the works performed by such employees employed by the contractor are not controlled by the Government though the contractor remains bound to deliver the finished product to the satisfaction of the Government as per the Specification given to him. The case of P.M. Patel and Sons and Others Vs. Union of India (UOI) and Others, stands on a different footing. In that case their Lordships found that the home workers have been working regularly for several years exclusively for a single manufacturer, and depend for their livelihood on such work, that they attend the factory during specified hours to secure raw material for making beedis at home and for delivering the manufactured beedis to the staff at the factory, that the quantity of leaves and tobacco supplied is fixed by the manufacturer, that registers of the raw material and of payment of wages are maintained at the factory, that a record is maintained of the manufactured beedis received from the home workers and the quantity rejected, and that a log book or a wage card is issued to the home workers. In the present case the manner in which the activity is carried on, there cannot be an element of existence of relationship of employer and employee between the Government on one hand and the employees employed by the contractor on the other. It is not a case where the contractor on behalf of the State has employed the employees for execution of the work as an agent. The agency, if at all, can be said to be limited to the extent of producing a desired result entrusted to him on payment of money. We are, therefore, of the view that applying the principles laid down in the decision reported in Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, the Works Department of the Government cannot be termed as an 'industry'. 13. We are, therefore, of the view that applying the principles laid down in the decision reported in Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, the Works Department of the Government cannot be termed as an 'industry'. 13. Assuming for the sake of argument that the Works Department is an 'industry', the further question that arises for consideration is whether such an industry has been covered by the Notification in Annexure-2. The said notification makes the provisions of the Act applicable to every establishment engaged in building and construction industry. Thus it requires a further determination as to whether the Works Department of the Government is engaged in building and construction industry. The Works Department of the Government even though renders material services to the community at large, it may not be correct to say that it is an establishment engaged in building and construction industry. The said establishment of the Government is no doubt in charge of building and construction wherever necessary, but the said work is neither organised nor arranged in a manner in which a trade or business is generally organised or arranged. The object of the 'establishment' of the Government is not for running any building or construction industry, but for undertaking various other works and responsibilities including the construction and maintenance of roads, buildings etc. Their Lordships of the Supreme Court in the decision reported in People's Union for Democratic Rights and Others Vs. Union of India (UOI) and Others, were considering as to whether the obligation to provide amenities Under Sections 16, 17, 18 and 19 of the Contract Lab our (Regulation and Abolition) Act, 1970 can be enforced against the principal employer and ultimately held that the Union of India, the Delhi Administration and Delhi Development Authority who had entrusted the construction work of Asiad Projects to the contractors cannot escape their obligation for due observance of various lab our laws by the contractors. Their Lordships further held that if the contractors do not carry out the obligations imposed on them by the aforesaid Sections, the same would be enforceable against the Union of India, Delhi Administration and the Delhi Development Authority. The said case is distinguishable from the facts of this case. I would, therefore, conclude that the notification in Annexure-2 does not apply to the Works Department of the Government under which the Petitioners are working. 14. The said case is distinguishable from the facts of this case. I would, therefore, conclude that the notification in Annexure-2 does not apply to the Works Department of the Government under which the Petitioners are working. 14. In the result, I would hold that the order of the Regional Provident Fund Commissioner u/s 7-A of the Act is without jurisdiction and the orders and the demand made thereon are, therefore, quashed. Accordingly the writ applications succeed. There would be no order as to costs. H.L. Agarwal, C.J. 15. I have carefully examined the judgment prepared by my learned brother P. C. Misra, and while I am in general agreement with the conclusion reached by him that the demand notices in question issued by the Regional Provident Fund Commissioner u /s. 7-A of the Act should be quashed, I would like to add my own reasons for coming to the same conclusion. 16. At the outset, I must indicate that the case was argued on the assumption that the demand notices related to the employees who were engaged by independent contractors for execution of the Government Projects over which the Executive Engineer, i.e. the Petitioners, had no other manner of control except (1) quality control, (2) specification control and (3) passing the bills from time to time according to the terms of the agreement/ contract. 17. The controversy arose on the issuance of the Notification dt. 23-9-1980 u/s 1(3)(b) of the Act quoted in paragraph 4 of the judgment of my learned brother and filed as Annexure-2 to O.J.C. No. 2760 of 1984. According to this Notification, the provisions of the Act were made applicable to every establishment engaged in "building and construction industry", of course where 20 or more persons were employed. 18. 23-9-1980 u/s 1(3)(b) of the Act quoted in paragraph 4 of the judgment of my learned brother and filed as Annexure-2 to O.J.C. No. 2760 of 1984. According to this Notification, the provisions of the Act were made applicable to every establishment engaged in "building and construction industry", of course where 20 or more persons were employed. 18. Now let us see the definition of some of the relevant expressions/terms, namely "employer" and 'employee' which are defined in Clauses (e) and (f) of Section 2 and read as follows: (e) 'employer' means -- (i).in relation to any establishment which is a factory, the owner or occupier of the factory, including the agent of such owner or occupier, the legal representative of a deceased owner or occupier and, where a person has been named as a manager of the factory under Clause (f) of Sub-section (1) of Section 7 of the Factories Act, 1948, the person so named; and (ii) in relation to any other establishment the person who or the authority which, has the ultimate control over the affairs of the establishment, and where the said affairs are entrusted to a manager, managing director or managing agent, such manager, managing director or managing agent." ' (f) 'employee' means any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment, and who gets his wages directly or indirectly from the employer, and includes any person employed by or through a contractor in or in connection with the work of the establishment. (Underlining is mine) It was submitted that the Executive Engineers should be "principal employers" in relation to the "employees" provided through the contractors. The expression "principal employer" seems to have been borrowed from the Contract Lab our. (Regulation and Abolition) Act, 1970 according to which the head of an office or department of the Government or a local authority or any other officer so specified is to be the "principal employer To appreciate the controversy, let us see some of the provisions of the Scheme, i.e. the Employees' Provident Funds Scheme framed under the Act. Chap. IV of the Scheme deals with the membership of the Fund. Two paras i.e., paras 26 and 69, which appear to me to be relevant may be extracted hereunder: 26. Chap. IV of the Scheme deals with the membership of the Fund. Two paras i.e., paras 26 and 69, which appear to me to be relevant may be extracted hereunder: 26. Classes of employees entitled and required to join the Fund -- (1)(a) Every employee employed in or in connection with the work of a factory or other establishment to which this Scheme applies, other than an excluded employee shall be entitled and required to become a member of the Fund from the beginning of the month following that in which this paragraph comes into force in such factory or other establishment, if on the date of such coming into force he has completed six months' continuous service or has actually worked for not less than 120 days within a period of six months or less in that factory or other establishment or in any other factory or other establishment to which the Act applies under the same employer, or partly in one and partly in the other or has been declared permanent in any factory or other establishment whichever is earliest. xx xx xx xx xx 69. Circumstances in which accumulations in the Fund are payable:o a member -- (1) A member may withdraw the full amount standing to his credit in the fund -- (a) on retirement from service after attaining the age of 55 years; Provided that xx xx xx (b) on retirement on account of permanent and total incapacity for work due to bodily or mental infirmity duly certified. (c) xx xx xx xx xx (d) on termination of service in the case of mass of individual retrenchment: Provided that xx xx xx (Emphasis supplied) Para 69 is long and I have extracted only the portions relevant to emphasis my point that the above provisions per se do not contemplate the application of the provisions of the Act or the Scheme to casual or absolutely temporary employees and some kind of permanency or semi permanency of the employees is contemplated. Para 30 of the Scheme makes it obligatory for the employer at the first instance to pay the contribution payable by himself, i.e. the employer's contribution, as also the contribution on behalf of the member employed by him which is called "the member's contribution", which is recoverable by means of deduction from his wages as provided in para 32. Para 30 of the Scheme makes it obligatory for the employer at the first instance to pay the contribution payable by himself, i.e. the employer's contribution, as also the contribution on behalf of the member employed by him which is called "the member's contribution", which is recoverable by means of deduction from his wages as provided in para 32. The wages of a member employed by an employer through a contractor are similarly deductible and for that purpose under para 36-B, a duty has been cast upon the contractors to submit to the principal employer within 7 days of the close of every month a statement showing the recoveries of the contributions in respect of employees employed by or through him. So far as the mass of employees engaged in the work of construction of roads, buildings, dams and other projects which generally is undertaken by Government through the agency of contractors is concerned, are mostly employed as casual or daily rated employees who are paid their wages either daily or weekly. Not only that, the employment of the lab our force depends upon the extent of necessity. for instance, if casting of the roof of a building is to take place, an additional lab our force is employed for that particular work on particular day-days and the like. Such labourers are not obliged to report to duty every day and they can have their employer of their own choice. Today, they may work in one project under a particular contractor and the other day, they may be found to be working under some other contractor at another site. Para 38 of the scheme authorises the employer to deduct the employee's contribution from the wages paid to him making contribution to the Fund. A labourer working on daily wages in my opinion will never agree to such deduction as in that event his wages would stand reduced to the extent of the deduction and he will prefer to seek employment where there is no obligation of any such deduction, nor he will prefer to submit to a prospective advantageous scheme to withdraw the amount which would be available to him in future. 19. The definition of the expression 'employee' where the employment through a contractor is contemplated means engagement of an employee who may be provided by a contractor. 19. The definition of the expression 'employee' where the employment through a contractor is contemplated means engagement of an employee who may be provided by a contractor. To illustrate my point in relation to the construction of a building, I may give an example where the help of a contractor can be taken who can supply, say, 50 labourers for doing a particular type of work e.g. stacking of bricks, carrying building materials from the ground floor to the first floor or the like. The wages for all these labourers are to be paid by the employer. It does not require much discussion that in order to constitute the relationship of an employer and an employee, there must be the liability for payment of wages by the employer. There is no contractual relationship of any nature between the principal employer and a contractor in relation to such employees who work exclusively under him and (his) control. The contractor is free to employ any employee or labourer at any rate of wages and on any term over which the principal employer will have no manner of control or regulation. He may get the work done from an employee who may be paid, say Rs. 30/-or Rs. 20/- a day. or may get the work done by employing 100 labourers or 10 labourers, as the case may be. The principal employer will only have a check and control regarding the quality/standard of work according to the specifications. In such a situation, the employees working under the direct control, in my considered opinion, cannot be held to be employees under the Petitioners or they can be said to be the principal employers. The expression "principal employer" in the Contract Lab our (Regulation and Abolition) Act, 1970 has been used entirely in a different context. The provisions of the Act and the scheme do not appear to be workable in relation to the Petitioner as the whole purpose of getting the work executed through the agency of contractors by the State or other bodies is to avoid the day-to-day complications or botherations of finding out labourers, materials and time for day-to-day supervision. Then the contractor himself doing contract work of many 'principal employer" simultaneously. The application of the provisions of the Act is fully covered by the maxim Lex Non Cogit Ad Impossibilia (The law does not compel anyone to do impossible things). Then the contractor himself doing contract work of many 'principal employer" simultaneously. The application of the provisions of the Act is fully covered by the maxim Lex Non Cogit Ad Impossibilia (The law does not compel anyone to do impossible things). Apart from the above principle, a welfare Government under the very nature of things has to do the development works for the benefit of the community. I, however, do not want to enter into a detailed discussion of this aspect of the matter and lay down any firm conclusion such as that such activity is a sovereign function, particularly in view of some authoritative decisions holding such activities, such as, running of hospitals, Swaraj Ashram, Delhi Postal Department and Public Works Engineering Departments, etc. as "industries." 20. The matter could have been examined otherwise and a different conclusion may perhaps could have been reached had the Government, or, for the matter of that, the Petitioners being in charge of different Divisions would have been carrying out the adventure of constructions by themselves by employing the labour force and others directly. 21. The writ applications, therefore, must succeed. They are accordingly allowed. Applications allowed. Final Result : Allowed