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1995 DIGILAW 161 (PAT)

Saharsa Zila Khadi Gramodyog Sangh v. Union of India through Secretary, Department of Industries, New Delhi

1995-03-13

A.N.TRIVEDI, NAGENDRA RAI

body1995
Order The petitioners have filed the present application for quashing the order dated 5-12-1991, passed by the Regional Provident Fund Commissioner, Bihar, Patna (Respondent no. 5), in exercise of power u/s 7-A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the' Act), determining Rs.1,90,378/-as amount due from the employer-petitioner no.1, towards Employees' Provident Fund Contribution, Family Pension Contribution, Employees Deposit Link Insurance Contribution and Administrative Charges for the period ranging from March, 1989 to March, 1990. A copy of the said order has been made Annexure-1 to the writ application. The petitioners have also challenged the letter dated 2-3-1993 (Annexure-1/A), by which Respondent no. 5 has directed the petitioners to deposit the assessed amount, otherwise legal action would be taken as well as the notice (Annexure-1/B) issued u/s 14 of the Act to show cause as to why. .criminal cases be not filed and the Bank account be not seized for non-payment of the aforesaid assessed amount. 2. According to the petitioners, petitioner no. 1 is a Sangh registered under the Societies Registration Act engaged in imparting training in moral and- spiritual values with economic self-sufficiency and self-reliance of the individual and the society under Gandhian concept and for giving practical training and shape to the Gandhian ideals. The main object of the Sangh is to inspire and to involve vast multitude of unemployed and under-employed people in self-employment programmes to sustain themselves. This Sangh is a decentralised unit of Bihar Khadi Gramodyog Sangh, earlier known as Bihar Khadi Samiti, which itself was a decentralised unit of All India Spinners Association (Akhil Bhartiya Charkha Sangh) founded by Mahatma Gandhi himself. The Sangh is a charitable and volunary organization based on common outlook and faith amongst its workers. 3. The Khadi and Village Industries Commission Act, 1956 (hereinafter referred to as the Khadi Act) has been enacted to provide for establishment of the Khadi and Village Industries Commission for the proper development of Khadi and Village Industries. The provisions of the Act, Rules and Regulations framed and instructions thereunder provide a self 'contained and elaborate provisions with regard to the matters including the welfare of the workers employed in the Khadi Industries. The provisions of the Act, Rules and Regulations framed and instructions thereunder provide a self 'contained and elaborate provisions with regard to the matters including the welfare of the workers employed in the Khadi Industries. In accordance with the provisions of the Act and Rules framed thereunder the Khadi and Village Industries Commission has appointed a certification committee to grant certificates to the producers or dealers in Khadi or the products of any village industries. Elaborate instructions have been issued for grant of certificate for manufacturing Khadi (A copy of the same has been annexed as Annexure-3). Paragraph 10 of the instructions contains a provision for creation of Welfare Fund to be utilised for the welfare of the workers and their families. Paragraph 12 (A) of the instruction speaks of establishment of the workers deposit account in which the workers and the concerned establishment have to deposit their share in the scheme at the rate of 8% of the wages of the workers. Instruction no. 12 (A) contains a provision for withdrawal of the amount from• the said scheme by the workers. Thus elaborate provisions have been made under the Act and the instructions issued by the Commission with regard to the provident fund etc. of the workers employed in Khadi and Village Industries and in that view of the matter the provisions of the Act are not applicable. It is also asserted that the Khadi product is not a textile. as mentioned in Schedule-I and as such the petitioner-establishment is not a factory engaged in industry in manufacturing any item as mentioned in the schedule and in that view of the matter the Act is not applicable in the case .of the petitioners. 4. A notice u/s 7A of the Act was served upon the petitioners to deposit Provident Fund. Administrative Charges. Link Insurance Fund Contribution and Family Pension Contribution from March, 1989 to March. 1990. The petitioners appeared and filed show cause• challenging the applicability of the Act on the aforesaid ground. But without considering the same the order has been passed directing to deposit Rs. 1.90,378/- as due from the pension funds, provident fund etc. 5. A counter affidavit has been filed wherein it is stated that the provisions of the Act are applicable to the establishment of the petitioners. The Act also applies to the establishment engaged' in Khadi production. But without considering the same the order has been passed directing to deposit Rs. 1.90,378/- as due from the pension funds, provident fund etc. 5. A counter affidavit has been filed wherein it is stated that the provisions of the Act are applicable to the establishment of the petitioners. The Act also applies to the establishment engaged' in Khadi production. The word "Industry" has been defined under Section 2 (i) of the Act. According to the said definition industry means any industry specified in Sch. 1 and includes any other indllstry added to the schedule by notification under Section 4. Textile is one of the items mentioned in Sch. 1. of the Act and Khadi comes within the meaning of textiles, The petitioner Sangh is engaged in the business of textile and has engaged more than 20 workers for production of Khadi and, as such, petitioner no. 1 is covered by the provisions of the Act. 6. Learned counsel for the petitioners contended that the establishment is not covered by the provisions of the Act for the reason that the petitioner no. 1 is not a factory engaged in any industry specified in Sch. 1 where more than 20 workers are employed. According to him though an industry engaged in manufacturing of textile is included in Schedule-' of the Act to which the Act is applicable if 20 or more persons are employed, but Khadi is different from textile and it 'is not included in Schedule-' and. as such, the petitioner-establishment is not engaged in any industry specified in the schedule. Khadi has not been included in the schedule by issuance of notification as provided u/s 1 (3)(b) of the Act and, as such, the Act is not applicable in the case of petitioner no.1. It is further contended that petitioner no.1 has no factory wherein more than 20 persons are employed, the workers prepare Khadi at different places and supply to the Sangh, on this ground also the Act is not applicable to the petitioner-Sangh. It is also contended that in view of the elaborate and specific provisions contained under the instructions issued by the Commission containing provisions for the welfare of the workers engaged in the Khadi manufacturing, the provision of the Act does not apply. 7. It is also contended that in view of the elaborate and specific provisions contained under the instructions issued by the Commission containing provisions for the welfare of the workers engaged in the Khadi manufacturing, the provision of the Act does not apply. 7. The respondents, on the other hand, contended that the word 'Textile' is of wide amplitude and it includes Khadi in its fold. The Act is applicable to an establishment which is a factory engaged in an industry specified in Schedule-1, wherein 20 or more than 20 persons are employed, or any other establishment' notified by the Central Government in this behalf where 20 or more than 20 persons are employed. Textile is included in Schedule-I and as such the petitioner establishment is engaged in industry and is covered by the provisions of the Act. In• view of the definition of 'employee' in Section 2 (f) of the Act the workers even preparing Khadi at their home will be treated to have been involved in the activity connected with the work of the factory. It was also contended that some provisions in the instructions issued under the Khadi Act for the benefit of the employees could not be a ground to exempt the petitioner-establishment from the operation of the Act. The Act applies to all the establishments covered under the Act unless it is exempted u/s 17 of the Act. 8. The Employees' Provident Fund and Miscellaneous Provisions Act has been enacted for the benefit of the employees in the factories and in similar establishments. As it is a beneficial legislation, it has to be construed liberally with a view to see that the object of the Act is achieved by providing maximum benefit to the employees engaged in industry and in similar establishment. 9. Section 1 (3) provides that subject to the provisions contained in Section 16. it applies (a) to every establishment which is a factory engaged in any industry specified in Sch. 1 and in which twenty or more persons are employed, and (b) to any other establishment employing twenty or more persons or class of such establishment which the Central Government may, by notification in the Official Gazette, specify in this behalf. 10. Section 2 (f) defines 'employee'. 1 and in which twenty or more persons are employed, and (b) to any other establishment employing twenty or more persons or class of such establishment which the Central Government may, by notification in the Official Gazette, specify in this behalf. 10. Section 2 (f) defines 'employee'. According to the said definition 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. (i) employed by or through a contractor in or in connection with the work of the establishment and (ii) engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961 (52 of 1961) or under the standing orders of the establishment. 11. Section 2 (i) defines 'industry' which means any industry specified in Sch.1 and includes any other industry added to the schedule by notification under Section 4. 12. Section 7-A empowers the authorities mentioned therein to determine monies due from employers. For applicability of the Act an establishment should be a factory engaged in any industries specified in Sch. 1. Admittedly, Sch. 1 includes textiles (made wholly or in part of cotton or wool or jute or silk, whether natural or artificial). Textile is not defined under the' Act. But it is clearly stated that any textile made wholly or in part of cotton or wool or jute or silk whether natural or artificial is a textile. In our view. the legislature never intended to give the weird 'textile' a restricted meaning, on the other hand, it intended to give a wider meaning which includes all fabrics or clothes prepared by texture with a view to 'give benefit to a large number of employees engaged in textile establishment. Khadi is prepared by process of weaving and it is inclucled in the definition of textile. The Supreme Court in the case of Ess Dee Carpet Enterprises vs. Union of India & ors., ( 1990 (1) S.C.C. 461 ) while considering the question with regard to applicability of the Act held that carpet is also a textile. The word 'textile' is not to be understood in scientific and technical sense, on the other hand it should be interpreted in such a way which includes all the establishments engaged in the textile industries. 13. The word 'textile' is not to be understood in scientific and technical sense, on the other hand it should be interpreted in such a way which includes all the establishments engaged in the textile industries. 13. Thus, the submission advanced on behalf of the petitioners that Khadi is not a textile is rejected. 14. So far as submission advanced on behalf of the petitioners that the establishment is not a factory as the workers are engaged in making Khadi at their homes, is concerned, the said point is also without any substance. The definition of the employees clearly shows that even a person employed for wages even in connection with the work of an establishment is included in the definition of employee and, as such, the definition of the employee cannot be confined to the work only performed in the factory itself. Before the Supreme Court, in the case of M/s P.M. Patel & Sons v. Union of India ( AIR 1987 SC 447 ), the question for consideration was that whether the provisions of the Act are applicable to the home workers rolling Biri at home. Dealing with the said matter the Apex Court held in paragraph 8 as follows :- “....The real question is whether the home workers are entitled to that benefit. Clause (f) of S. 2 of that Act defines an 'employee' to mean "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. It will be noticed that the terms of the definition are wide. They include not only persons employed directly by the employer but also persons employed through a contractor. Moreover, they include not only persons employed in the factory but also persons employed in connection with the work of the factory. It seems to us that a home worker, by virtue of the fact that he rolls beedis, is involved in an activity connected with the work of the factory. Moreover, they include not only persons employed in the factory but also persons employed in connection with the work of the factory. It seems to us that a home worker, by virtue of the fact that he rolls beedis, is involved in an activity connected with the work of the factory. We are unable to accept the narrow construction sought by the petitioners that the words "in connection with" in the definition of "employee" must be confined to work performed in the factory it- self as a part of the total process of the manufacture." (underline is ours) 15. In view of the aforesaid decision even if the said submission advanced on behalf of the petitioner is accepted that the workers are not employed in the factory, there is no escape from the fact that they are employed in connection with the work of the factory and as such the Act is applicable in the case of the petitioners. 16. A Division Bench of this Court in the case of Bihar Khadi Gramodyog Sangh & ors. vs. The Union of India and ors. (C.W.J.C. No. 1078/90) finally disposed of on 14-5-90 held that the provisions of the Act are applicable in the case of Khadi industries. 17. The last submission advanced on behalf of the petitioners with regard to non-applicability of the Act is also without any substance. The Act applies to all the establishment which is a factory engaged in the Industry specified in Schedule-I. The Act empowers the Central Government to add industry in the schedule. As held above, the Act applies to the petitioner establishment. Section 17 of the Act empowers the appropriate Government to exempt any establishment from the operation of the Act. No notification has been issued under Section 17 exempting Khadi from the operation of the Act. In that view of the matter even if there is some provision under the Khadi Act for the welfare of the employees, on that ground the Act cannot be held to be non-applicable. 18. In the result, there is no merit in this application, accordingly, it is dismissed.