Case: R. Ramakrishna Rao Vs. State of Kerala

the Act puts down as the minimum) after Hotel Brinda was opened in January 1959 and he was entitled to an exemption under the Act for a further period of five years from January 15, 1959. Lastly, he pleaded that if there was a doubt on all these points the matter could only be decided after the doubt was cleared by an order of the Central Government under Section 19A of the Act. His pleas were not accepted by the High Court and the Magistrate and he has raised some of the contentions before us.3. Before we consider the arguments which have been urged before us we may refer to some of the provisions of the Act. Employees Provident Funds Act became law on March 4, 1952 and the scheme was published on September 2, 1952. A part of the Scheme became operative from October 31, 1953; other portions came into operation on subsequent dates. It was not contended before us that the relevant parts of the Scheme were not in force. The Act applies to the whole of India and subject to the provisions contained in Section 16 of the Act it applies (a) to a factory engaged in any industry specified in Schedule I 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 Government may by notification in the Official Gazette specify "in this behalf" These establishments come within the (b) and are governed by the appropriate notification issued by the Central Government. No contention has been raised before us that the Act and the Scheme were not applicable to the kind of establishments here. Since the objection is that Section 16 excludes the establishments for a period we may read that section here :"16. Act not to apply to certain establishments. (1) This Act shall not apply :-(a) to any establishment registered under the Co-operative Societies Act 1912, or under any other law for the time being in force in any State relating to co-operative societies. employing less than fifty persons and working without the aid of power; or(b) to any other establishment employing fifty, or more persons or twenty or more, but less than fifty, persons until the expiry of three years in the case of the former and five years in the case of the latter, from the date on which the establishment is, or has been set up.Explanation.-For the removal of doubts, it is hereby declared that an establishment shall not be deemed to be newly set up merely be reason of a change in its location.(2) * * * * *Paragraph 26 (1) (a) of the Scheme shows the classes of employees entitled and required to join the Fund. It reads as follows :-"26 (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 one years continuous service or has actually worked for not less than 240 days during a period of twelve 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".4. Now the question in this case is that Hotel Brinda commenced only on January 15, 1959 and the number of employees then exceeded 20 for the first time. Under the provisions of Section 16 an exemption from the- Act and the Scheme is claimed for five years and it is submitted no offence was committed because the establishment even if taken together could not be subjected to the provisions till a period of five years had expired from January 15. 1959.5. In support of this argument Mr B. R. L. Iyengar emphasises that the use of the participle employing in S. 1(3) (b) shows some continuity of employment of 20 persons and not the first point of time when that number is reached. He contends that it is always intended that a period of 3 or 5 years, as the case may be, must elapse before the provisions of the Act and the Scheme are made applicable. This is an ingenious way of putting the matter but is not admissible. The language of Section 16 (1) (b) is very precise. The last thirteen words of the clause from the date on which the establishment is or has been set up, show both cases where the establishment is new and where the establishment is old. The word is shows that a new establishment is meant and the words has been show that the establishment existed before the number is reached. If it was intended to apply the clause to new establishments the words is set up would have been sufficient. The construction sought to be placed would render the words has been otiose. Further the scheme of Paragraph 26 quoted earlier relates to a period of service and this qualifying period may be in the past as well as in the future. The intention behind Section 16 read with paragraph 26 quite clearly shows that the period is intended to give a breathing time to new establishments. That reason does not hold when the establishment is already old and well founded. The use of the participle is therefore immaterial. Whether a present perfect tense or a participle be used the meaning is the same. Clause (b) of S. 1 (3) which uses the participle and Clause (a) of the same section which employs the present perfect tense both merely describe the establishments and convey no different meanings. The conclusion of the High Court was thus right.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]A part of the Scheme became operative from October 31, 1953; other portions came into operation on subsequent dates. It was not contended before us that the relevant parts of the Scheme were not in force. The Act applies to the whole of India and subject to the provisions contained in Section 16 of the Act it applies (a) to a factory engaged in any industry specified in Schedule I 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 Government may by notification in the Official Gazette specify "in this behalf" These establishments come within the (b) and are governed by the appropriate notification issued by the Central Government. No contention has been raised before us that the Act and the Scheme were not applicable to the kind of establishments here.In support of this argument Mr B. R. L. Iyengar emphasises that the use of the participle employing in S. 1(3) (b) shows some continuity of employment of 20 persons and not the first point of time when that number is reached. He contends that it is always intended that a period of 3 or 5 years, as the case may be, must elapse before the provisions of the Act and the Scheme are made applicable. This is an ingenious way of putting the matter but is not admissible. The language of Section 16 (1) (b) is very precise. The last thirteen words of the clause from the date on which the establishment is or has been set up, show both cases where the establishment is new and where the establishment is old. The word is shows that a new establishment is meant and the words has been show that the establishment existed before the number is reached. If it was intended to apply the clause to new establishments the words is set up would have been sufficient. The construction sought to be placed would render the words has been otiose. Further the scheme of Paragraph 26 quoted earlier relates to a period of service and this qualifying period may be in the past as well as in the future. The intention behind Section 16 read with paragraph 26 quite clearly shows that the period is intended to give a breathing time to new establishments. That reason does not hold when the establishment is already old and well founded. The use of the participle is therefore immaterial. Whether a present perfect tense or a participle be used the meaning is the same. Clause (b) of S. 1 (3) which uses the participle and Clause (a) of the same section which employs the present perfect tense both merely describe the establishments and convey no different meanings. The conclusion of the High Court was thus right.