JUDGMENT : (1) Since common questions of facts and law are involved in both these writ petitions, therefore, both these writ petitions are decided by this common order. (2) Both these writ petitions have been filed under Articles 226 and 227 of the Constitution of India with the following prayers:- “(i) Quash the impugned order Ann.2 dated 14.10.1998 to the extent of operative part of the order and the extent indicated hereinabove. (ii) Hold that the petitioner unit is not covered under the provisions of the EPF & MP Act, 1952 or Schemes framed thereunder. (iii) Quash the impugned order of Respondent no.1 (iv) Hold that the petitioner unit is not covered by the Entry ‘Heavy or Fine Chemicals-Dyes’ in the Schedule I to the Act, 1952. (v) Hold that the petitioner unit is not ‘Trading or Commercial Establishment’. (vi) Quash subsequent and consequential order, notice or demand notice as the case may be. (vii) Restrain the Respondent No.1 from determining and recovering the alleged dues, damages and interest as indicated in the impugned order of the Tribunal.” (3) Since the controversy involved in both these writ petitions is common, therefore, this Court deems it proper to take into consideration the facts involved in S.B. Civil Writ Petition No.20/1999. (4) The facts appertain are that the petitioner carries on the business of manufacturing Mehandi powder also known as Henna by grinding of dry leaves purchased from open market in Mandi yard in auction with the help of labour and some grinding machines known as pulverizers and after being packed in polythene bags, the same are sold in the market. There is no chemical mixing or any other synthetic material used and it is simply grinding the leaves into fine powder whereby the said product is obtained. The product in question cannot be described as Heavy of fine chemicals including dyes, intermediates etc. and since by the said process no different commercial articles comes into being, there is no manufacture as understood in the Excise and Sales Tax laws and the goods, i.e. Henna is exempted under those laws. (5) On 14.06.1995, the concerned authorities conducted a survey at the business place of petitioner and the proceedings were initiated for covering the petitioner under the provisions of the Employees’ Provident Fund & Misc. (5) On 14.06.1995, the concerned authorities conducted a survey at the business place of petitioner and the proceedings were initiated for covering the petitioner under the provisions of the Employees’ Provident Fund & Misc. Provisions Act, 1952 (for short, ‘the Act of 1952’) and after giving a show cause notice and taking reply of the petitioner on record, an order under Section 7A of the Act of 1952 was passed on 03.05.1998 (Annex.1) holding that the petitioner is covered under the Act of 1952 as a ‘Trade and Commercial Establishment’. (6) Aggrieved by the order dated 03.05.1998 (Annex.1), the petitioner preferred an appeal before the Tribunal constituted under Section 7-I of the Act of 1952, which was decided vide order dated 14.10.1998 (Annex.2) and the Tribunal, though holding that the petitioner was not a ‘Trading or Commercial Establishment’ and also that it was not properly and fully covered by the Entry, ‘Heavy & Fine Chemicals’ vide Item No.(viii) in Schedule I to the Act of 1952, yet the Tribunal held that the petitioner should be covered under the Act from the date of the impugned order. (7) Therefore, being aggrieved of the order dated 03.05.1998 (Annex.1) passed by the Regional Provident Fund Commissioner and the order dated 14.10.1998 (Annex.2) passed by the Tribunal, the petitioner has preferred the present writ petition. (8) Learned Senior Counsel appearing on behalf of the petitioner made the following submissions:- (a) that petitioner-firm is not covered by the provisions of the Act of 1952 as the firm is not having its required numbers of twenty workers. However, on the date of survey, while the list was prepared, twenty names were entered in the one list, but name of one or two workers is repeated and the said list was countersigned by the representative of the petitioner – firm available at that point of time. He also submitted that the petitioner-firm is neither specified nor scheduled industry mentioned in Schedule I of the Act of 1952 as it does not fall under the heading "Trading and Commercial Establishment". Thus, the petitioner-firm is not liable to comply with the provisions of the Act of 1952. He also submitted that the petitioner-firm is neither specified nor scheduled industry mentioned in Schedule I of the Act of 1952 as it does not fall under the heading "Trading and Commercial Establishment". Thus, the petitioner-firm is not liable to comply with the provisions of the Act of 1952. He also submitted that the learned Tribunal has rightly held that the petitioner-firm is not covered under the heading "Trading and Commercial Establishment” and wrongly held that the petitioner firm is covered under the heading of Heavy and Fine chemical entries as it is not mixing any other chemical with the mehndi or Henna Powder, but the learned tribunal committed a grave error while holding that in order to cover the petitioner-firm under the Beneficial Legislation, prospectively it can be covered under the sub item "Dyes". (b) that the petitioner-firm cannot be covered under the Act of 1952 merely because coverage is to be construed with respect to the beneficial legislation. It was submitted that since admittedly no chemicals were used by the petitioner firm, it cannot be said to be a dyeing or printing industry. As a matter of fact, mere grinding work of dry leaves in powder was being done which does not bring into existence any new and different commercial articles and there was no manufacturing. Thus, the petitioner is not an industry covered under the Schedule I to the Act of 1952 at all nor can it be said to be a factory. (c) that the findings of appellate tribunal are contradictory as on one hand, the tribunal has held that the petitioner unit is neither trading/commercial establishment nor it is covered by the entries "Heavy or Fine Chemical” and even the benefit of doubts in the case of "Dyes” could be given in favour of the petitioner-firm and on the other hand it held that yet somehow the petitioner-firm should be covered under the heading of dyes. (d) that the learned Tribunal merely recorded that petitioner’s coverage can be sustained under the sub-item ‘Dyes’. Firstly, it is irrational and illogical to say that benefit of doubt can be extended only for its application prospectively. (d) that the learned Tribunal merely recorded that petitioner’s coverage can be sustained under the sub-item ‘Dyes’. Firstly, it is irrational and illogical to say that benefit of doubt can be extended only for its application prospectively. Secondly, if any doubt without giving a valid basis for its coverage, no such coverage could be extended to the petitioner even prospectively and thirdly, if it is not covered by the main entry ‘Heavy and Fine Chemicals’, there was no question of it being covered by the sub-entry or subitem of ‘Dyes’. (e) that the firm is manufacturing mehndi powder and as such, it does not fall under the Schedule industries since the firm is a factory, registered under the Factories Act. He submitted that in order to manufacture Henna Powder the mehndi leaves are purchased, the leaves are sorted, thereafter, dried processed and converted into fine powder. He also submitted that the learned Tribunal vide order 14.10.1998 (Annex.2) has clearly held that the petitioner firm does not come under the purview of "Trade and Commercial Establishment". Learned Tribunal further held that under the Act of 1952, Section 1(3)(b) is applicable only to establishments as notified by the Central Government and thus, when the learned Tribunal has given categorical findings that the petitioner firm is not a trade and commercial establishment and the said findings remained unchallenged by the Department, therefore, the petitioner firm could not be dragged in and covered under the purview of the Act of 1952. He also submitted that the list of employees has prepared at the time of survey for both the petitioner firm as well as the M/s Brite Henna Product which are both sister concerns carry name of one of the employees in both the firms and the list of employees submitted before the appellate Tribunal for the period September 1991 to 1995 had never exceeded the total number of employees from 15. (f) that the impugned order passed by the learned Tribunal is ambiguous to the extent that once the Tribunal has held that the petitioner firms does not come under the definition of Trade and Commercial Establishment, then it was absolutely unjust to conclude that the petitioner firm falls under the provisions of the Act of 1952 and thus, the same deserves to be quashed and set aside. (g) that merely because the Act of 1952 is a beneficial legislation for labour, it cannot be a ground to cover a unit even though it is neither specifically or directly so covered. No indirect or circuitous method is permissible to cover a unit unless it clearly falls within the ambit and scope of the relevant entry under the Schedule to the Act of 1952. (h) that the Tribunal has utterly failed to appreciate the facts and the law applicable and has wrongly extended the coverage to the petitioner without any basis or finding in this regard. Moreso, the petitioner has not engaged 20 persons. Thus, the order dated 14.10.1998 (Annex.2) deserves to be quashed to the extent of it directing prospective application of the Act of 1952 to the petitioner. (9) Per contra, learned counsel for the respondents made the following submissions:- (a) that the petitioner is a factory registered under the Factory Act and thus, provisions of Section 1(3)(a) are applicable, which reads as under:- "1. Short title, extent and application.— (1) This Act may be called the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952. (2) xxx xxx xxx (3) Subject to the provisions contained in section 16, it 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, xxx xxx xxx” When the petitioner-unit was inspected, 20 persons were found to be engaged and list was prepared on which Partner of the petitioner-unit signed and authenticated the list and thus, the Act of 1952, being a welfare legislation, was rightly applied. (b) that the petitioner-firm is carrying the business of manufacturing Mehndi Powder which is also known as Henna. The petitioner is grinding the dry leaves with the help of labour employees and pulverizer, the powder is packed in polythene bags and thereafter, sold in the market. The petitioner- firm by way of a process, grinded mehndi leaves into powder then the powder becomes marketable mehndi and the same is called as Henna. The petitioner is grinding the dry leaves with the help of labour employees and pulverizer, the powder is packed in polythene bags and thereafter, sold in the market. The petitioner- firm by way of a process, grinded mehndi leaves into powder then the powder becomes marketable mehndi and the same is called as Henna. (c) that as per the Regional Provident Fund Commissioner (hereinafter for short "the RPFC"), the petitioner-firm is covered under Section 1(3)(b) of the Act of 1952 under the heading "Trading and Commercial Establishment” and the said contention of the respondents is also emphasized in the decision rendered by the Hon'ble Apex Court in the case of M/s Basantlal Jain Vs. RPFC: Writ Petition No.86/1962. (d) that the use of Henna is for decorating the hands of ladies and men as also for the purpose of dying grey hairs after adding some chemical to it. The learned tribunal has held that the petitioner-firm is not covered under the heading "Trading and Commercial", but has sustained the coverage of the establishment under heading "Heavy and Fine Chemicals in (viii Dyes)”from the date of the order of tribunal. (e) that although the petitioner-firm has been held to be covered under the heading "Heavy and Fine Chemical (viii Dyes)”and as per the findings of the RPFC, the firm is clearly covered under the heading "Trading and Commercial” but the fact remains that the firm is required to comply with the provisions of the Act of 1952. (f) that the order passed by the RPFC is not violative to Article 14 and 19(1)(g) of the Constitution of India and is perfectly in accordance with the provisions of the Act of 1952 and it has rightly been held by the RPFC that the petitioner-firm is covered under the heading "Trading and Commercial". (10) Heard learned counsel for the parties and perused the material available on record. (10) Heard learned counsel for the parties and perused the material available on record. (11) This Court observes that Section 1(3) (a) of The Employees’ Provident Funds And Miscellaneous Provisions Act, 1952 clearly stipulates that the provisions contained in Section 16 applies to every establishment which is a factory engaged in any industry specified in Schedule I. Thus for the purpose of application of the provisions of the Act of 1952 it is necessary that the said establishment which is a factory falls under Schedule I. (12) This Court further observes that a bare look at Schedule I of the Act of 1952 reveals that Henna is not included in the Schedule. It is further observed that as held by the Tribunal that the petitioner firm falls in the category of Heavy and Fine Chemicals is not sustainable because as per the definition of Heavy Chemicals as laid down in Concise Oxford English Dictionary Heavy Chemicals, means, “bulk chemicals, used in industry and agriculture”, and as per the Chambers Dictionary of Science and Technology (revised edition, page 559) Heavy Chemicals, means “those basic chemicals which are manufactured in large quantities. For example, sodium hydroxide, chlorine, nitric acid, sulphuric acid”. Further, as per the Concise Oxford English Dictionary, the definition of Fine Chemicals is “highly pure chemicals prepared for use in research and industry”. Thus as per the definitions mentioned above, it cannot be held that the petitioner firm falls under the definition of Heavy Chemicals and Fine Chemicals as the petitioner is not manufacturing chemicals in any manner. The definition of Chemical as per Concise Oxford English Dictionary is “a distinct compound or substance, especially one which has been artificially prepared or purified”. (13) The Tribunal has held the petitioner to be not falling under the heading “Trade and Commercial Establishment” but has held that the petitioner falls under the heading of “Heavy and Fine Chemicals (viii) Dyes” is thus, in view of the aforesaid discussion, not sustainable as once the petitioner is found not indulging in Trade or any Commercial activity, then there was no occasion for the Tribunal to hold that the petitioner falls under the heading of “Heavy and Fine Chemicals”. (14) This Court also observes that the Tribunal has further held that the petitioner firm falls under the category of intermediate dyes, but as per the definition of Intermediate Dyes laid down in the Concise Oxford English dictionary “Intermediate Dyes means a chemical compound formed by one reaction and then taking part in another” and as per the Law Lexicon Fifth Edition, the definition is “a chemical compound formed as an intermediate step between the starting material and the final product” and here the petitioner firm is not changing the nature of the end product as the nature is the same that of the leaves and in no manner it can be held that the petitioner firm falls in the category of Intermediate Dyes. (15) This Court further observes that he petitioner firm is involved in manufacturing of Henna. Henna is a napthoquinone derivative. It is contained in the leaves of tropical plant Lawsonia inermis and the petitioner firm is not preparing any such substance/compound which is artificially prepared or purified later. Henna powder is made from the leaves of a plant. Henna is dominantly used for dying of hands, feet and hair. It is also a well-known fact that colour of Henna blends in water and within a short period it is washed off from the hands, feet and hair. It is an admitted fact that the petitioner firm is making the henna powder by drying the henna leaves, cleaning the leaves which are separated from sand, stones, dust, etc for being made into powder and the grinding is done by way of using pulveriser or grinders. The powder is mixed thoroughly and the essential character of the powder remains the same as that of leaves from which it is made which is the starting material. The petitioner firm thereafter packages and labels the final product before selling it in the market which is finally ready for the use. The petitioner firm is selling the powder in its original form as the character of the powder is not changed, and if the buyer buys the end product sold by the petitioner firm and mixes the powder with any other chemical then it cannot be said that the petitioner firm is manufacturing a chemical Dye. The petitioner firm is selling the powder in its original form as the character of the powder is not changed, and if the buyer buys the end product sold by the petitioner firm and mixes the powder with any other chemical then it cannot be said that the petitioner firm is manufacturing a chemical Dye. And therefore it is apparent that the petitioner firm does not fall under the category of Heavy and Fine Chemicals, including (viii) intermediate dyes, colour lakhs and toners as laid down in the schedule I. (16) This Court also observes that the definition of the Dye has been laid down in organic chemistry, volume 1 I.L Finar, which is “for substance to act as a dye, certain conditions must be fulfilled, namely (a) it must have suitable colour, (b) it must be able to fix itself or be capable of being fixed to the fabric, (c) when fixed it must not be fugitive, i.e., it must be fast to light, and it must be resisting to the action of water, and to a certain extent, to dilute acids, and alkalis”. As far as Henna is concerned, it cannot be said to be fugitive because Henna is not resistant to the action of water as it gets washed away with each rinsing and use of water and also the colour leaves its mark on the clothes, when it is freshly put and removed from the hands, feet and hair as the colour of Henna is not fast and, therefore, the Henna cannot be said to be falling in the definition of “Dye” as well. (17) Thus, in light of aforesaid discussion, this Court observes that Henna powder prepared by the petitioner firm cannot be used to impregnate tissues. Further, it is not capable of being fixed to the fabric, hair, feet or hands as the Henna powder is not fugitive in its raw form and gets washed off with water and also blends in water, thus, having no wash fastness. Also, it is writ large that the petitioner firm is not making a chemical powder as the nature of the Henna leaves is the same as of the final product, i.e. Henna powder and no chemical is used to make the final product. Also, it is writ large that the petitioner firm is not making a chemical powder as the nature of the Henna leaves is the same as of the final product, i.e. Henna powder and no chemical is used to make the final product. (18) Also, there is no doubt that the petitioner firm has employed 20 employees but in order to fall in the definition of Section 1(3) (a), it is necessary that he petitioner firm falls in the Schedule-I of the Act of 1952. But, in the instant case, petitioner firm does not fall in the category of “Heavy and Fine Chemicals” of Schedule-I. (19) In view of the aforesaid discussion, this Court is of the firm view that the petitioners are not changing the original nature of the henna leaves as the end product, i.e. the Henna Powder has the same nature, which the Henna leaves have and the petitioner does not fall under Section 1(3) (a) of the Act of 1952. Thus, the present writ petitions are allowed and the impugned orders dated 14.10.1998 (Annex.2) passed by the respondent No.2 – Employees’ Provident Fund Appellate Tribunal are quashed and set aside to the extent of holding the petitioners Firms falling in the head “Heavy and Fine Chemicals (viii) Dyes”. Further the petitioners are not required to comply with the provisions of the Employees’ Provident Fund & Misc. Provisions Act, 1952 as the petitioners do not fall under the provisions of the said Act of 1952. (20) The stay applications and all other pending applications, if any, also stand disposed of.