Judgment Case ID: 1875

Judgment:
Appeal No. 1059 of 1963. Appeal from the judgment and order dated April 10	 1962 of the Punjab High Court in L.P. Appeal No. 312 of 1959. B. Sen and R. N. Sachthey	 for the appellant. C. B. Agarwala	 J. B. Dadachanji	 O. C. Mathur and Ravinder Narain	 for the respondent. The Judgment of the Court was delivered by Gajendragadkar	 CJ. This appeal raises a short question as to the content of the entry "Electrical	 Mechanical or general engineering products" used in Schedule 1 to the Employees ' Provident Fund Act	 1952 (No. 19 of 1952) (hereinafter called the Act). The respondent firm	 Shibu Metal Works	 runs a factory which manufactures brass utensils. Under the Act and the scheme framed thereunder	 the employer to whose factory the Act applies is required to deposit with the appellant	 the Regional Provident Commissioner	 his share of the contribution as well as that of the employees coupled with the administrative charges within 15 days of each succeeding month. It appears that the respondent had been making such deposits in the past. If the employer makes a delayed payment	 the Government is entitled to impose damages not exceeding 25 per cent of the amounts payable by the employer. In respect of the period between June	 1955 to October	 1955	 and for the months of June	 August	 September and November	 1956	 delayed payments were made by the respondent. Thereupon	 the appellant called upon the respondent to pay the damages. The respondent	 in turn	 made explanations and contended that there was really no delay in the making of payments in regard to some months	 and in respect of the others where delay was admitted	 it claimed that the same should be condoned. The appellant did not accept either of the pleas raised by the respondent	 and demanded the payment of damages. That led to the present writ proceedings	 commenced by the respondent in the High Court of Punjab. In its writ petition filed on the 3rd November	 1958	 the respondent contended that the appellant was not entitled to recover either the contributions alleged to be due under the Act or Sup./65 6 74 damages alleged to be due on the ground that there was delay in payment	 because the manufacture of brass utensils which was the work carried on in the respondents factory did not come within the purview of the Act. On this ground	 the respondent urged that the demand made by the appellant was illegal	 ultra vires and without jurisdiction. The writ petition asked for the issue of a writ of mandamus restraining the appellant from recovering any amount from the respondent under the Act. The appellant resisted the writ petition and urged that the entry "Electrical	 Mechanical or general engineering products" included manufacture of brass utensils	 and so	 the respondent 's factory fell within the purview of the Act. The appellant also urged that if the respondent entertained any doubt as to the applicability of the Act to its factory	 it should have approached the Central Government for removal of the doubt and not rushed to the court for a judgment. The learned Single Judge who heard the writ petition held that the manufacture of brass utensils fell within the provisions of the relevant entry in Sch. 1	 because	 in his opinion	 the said utensils were	 in substance	 drums and containers. He	 therefore	 held that the appellant was entitled to demand from the respondent the deposit of the contributions as prescribed by the Act. He	 however	 took the view that the demand for damages made by the appellant was not justified. On these findings the writ petition was partly allowed in that a writ was issued against the appellant restraining him from making a demand for the payment of damages. In regard to the claim made by the respondent that it was not liable to deposit the contributions under the Act	 the learned Judge held that the said claim was not justified. The respondent then preferred an appeal under the Letters Patent before a Division Bench of the Punjab High Court. The Letters Patent Bench has upheld the respondent 's contention that the manufacture of brass utensils does not fell within the entry "Electrical	 Mechanical or general engineering products" enumerated in Sch. 1 to the Act. In the result	 the respondents appeal was allowed and a writ was issued against the appellant in terms of the prayer made by the respondent in its writ petition. The appellant then moved the said High Court for a certificate and with the certificate granted to him	 he has come to this Court in appeal. That is how the only question which arises for our decision is : what is the true content of the entry "Electrical	 Mechanical or general engineering products" included in Sch. 1 	of the Act? 75 Before dealing with this point	 it would be relevant to refer briefly to the broad features of the scheme prescribed by the Act	 and its purpose. This Act was passed in order to provide for the institution of provident funds for employees in factories and other establishments. Section 1	 sub section (3)	 originally provided that subject to the provisions contained in section 16	 the Act would apply (a) to every establishment which is a factory engaged in any industry specified in Sch. 1 and in which 50 or more persons are employed	 and (b) to any other establishment employing 50 or more persons or class of such establishments which the Central Government may	 by notification in the Official Gazette	 specify in that behalf. 'Mere is a proviso to this subsection which it is unnecessary to set out. Later	 in 1960	 the requirement that 50 workmen should be employed has been modified and now	 the employment of 20 workmen is enough to attract the application of the Act. Section 2(g) defines a "factory" a	 	 any premises	 including the precincts thereof	 in any part of which a manufacturing process is being carried on or is ordinarily so carried on	 whether with the aid of power or without the aid of power. This shows that if the test prescribed by section 1(3) is satisfied and the undertaking is shown to be engaged in a manufacturing process	 the Act applies. It makes no difference to the applicability of the Act that in a given factory	 the manufacturing process is carried on without the aid of power. It is the manufacturing process which is the decisive factor. Section (1) defines "industry" as meaning any industry specified in Sch. 1	 and includes any industry added to the Schedule by notification under section 4. This definition shows how entries in Sch. 1 assume significance. Whenever a question arises as to whether any industry is governed by the Act	 the answer is to be found by looking at Sch. It is also clear that additions can be made to Sch. 1 from time to time by notification by the Central Govern ment. Section 4 specifically confers this power on the Central Government. It provides that the Central Government may add any industry to Sch. 1 and it lays down that after the notification is issued by the Central Government in that behalf	 the industry so added shall be deemed to be an industry specified in Sch. 1 for the purposes of the Act. Section 4(2) provides a safeguard by requiring that notifications issued under sub section (1) shall be laid before Parliament	 as soon as may be	 after they are issued. Section 5 is the key section of the Act and it provides for the institution of Employees ' Provident Fund Schemes. It is not necessary for our purpose to refer to the details of these schemes. It would thus be seen that the basic purpose of the Act is to 76 require that appropriate provision should be made by way of provident fund for the benefit of the employees engaged in establishments to which the Act applies. Rules made for the institution of the funds provide for contribution both by the employees and the employers and there can be little doubt that the purpose intended to be achieved by the Act is a very beneficent purpose in that it assures to the employees concerned the payment of specified amounts of provident fund in due time. Schedule 1 which plays a decisive role in the determination of the question as to whether an industry falls under the provisions of the Act	 originally contained six entries. It provided that any industry engaged in the manufacture or production of the six items mentioned therein shall be an industry for the purpose of the Act. The words "or production" were deleted in 1953 and now	 the entry refers to any industry engaged in the manufacture of the items mentioned in Sch. 1. Amongst the items thus inserted was "Electrical	 Mechanical or general engineering products. " Just as the requirement as to the number of workmen whose employment would bring the establishment within the scope of the Act has been liberalised and 50 has been brought down to 20	 so the items listed in Sch. 1 have also been expanded and several additions have been made in that behalf. The object of the Act clearly was to proceed to make provision for the provident fund for the benefit of industrial employees in a cautious and pragmatic manner	 and that explains how and why the Central Government has slowly and gradually but progressively	 been expanding the scope of the applicability of the Act to different branches of industry. The process of making additions to Sch. 1 has been proceeding apace and one has merely to look at the items which have been listed in Sch. 1 by several additions up to the 15th of May	 1964 to realise how the scope of Sch. 1 has been considerably expanded. The question as to what exactly is the content of the entry with which we are concerned has been considered by different High Courts from time to time	 and we would very briefly indicate what the effect of these decisions is in order to illustrate how the approach adopted by the Courts in interpreting this entry has not been uniform. In Regional Provident Commissioner	 U.P.	 Kanpur vs M/s. Great Eastern Electroplator Ltd.	(1) a Division Bench of the Allahabad High Court held that an electric torch case is receptacle in which the torch batteries are kept	 and it is	 therefore	 a container within the meaning of item (24) of the (1) A.I.R. 1959 All 133. 77 Explanation to Sch. 1	 and is or must be deemed to be an electrical	 mechanical or general engineering product. We ought to add that in 1953	 an Explanation has been added to Sch. 1 for the purpose of indicating what items would fall under the entry "Electrical	 mechanical or general engineering products". Amongst the items listed under the Explanation	 item (24) is 'drums and containers '. The Division Bench of the Allahabad High Court reversed the view taken by the learned single Judge of the said High Court	 and came to the conclusion that an electric torch case is a container within the meaning of item (24) in the Explanation to which we have just referred. This decision of the Divi sion Bench was brought to this Court in appeal (No. 580 of 1960	 decided on 18th December 1962)	 and this Court took the view that the conclusion reached by the Division Bench that an electric torch case is a container within the meaning of item (24) of the Explanation to Sch. 1 was right. In the Nagpur Glass Works Ltd. vs Regional Provident Fund Commissioner	 (1) the Bombay High Court has held that burners or metal lamps were products which fell within the Schedule under the entry 'Electrical	 mechanical or general engineering products '. In Haji Nadir Ali Khan and Others vs The Union of India and Others	(2) Falshaw J.	 as he then was	 took the view that musical instruments	 whether made of metal or otherwise	 though not mentioned specifically in Sch. 1	 fell within the scope of the expression "electrical	 mechanical or general engineering products". In Hindustan Electric Co.	 Ltd. vs Regional Provident Fund Commissioner	 Punjab	 & Anr. 	(3) Grover J. of the Punjab High Court similarly held that stoves would fall within the expression in question. In Madras	 in T. R. Raghava Iyengar and Co. vs The Regional Provident Fund Commissioner	 Madras	 (4) Jagadisan J. has taken the view that the conversion of metal sheets and circles into vessels results in products of metal rolling and re rolling within the meaning of the Schedule to the Act	 and so	 an industry for the purpose of manufacturing vessels and utensils out of brass and copper sheets and circles is covered by the Act. In The Regional Provident Fund Commissioner	 Bombay vs Shree Krishna Metal Manufacturing Co.	 Bhandara	 and Oudh Sugar Mills Ltd. 	(1) one of the points which arose for the decision (1) I.L.R. (2) A.I.R. 1958 Pun. (3) A.I.R. 1959 Pun. (4) A.I.R. 1963 Mad. 238. (5) [1962] Supp. 3 S.C.R. 815. 78 of this Court was whether the manufacture of metal circular sheets fell within Sch. 1	 and it appears that it was conceded by both the parties that the said work would fall within Sch. 1 of the Act; and so	 the Co.	 carrying on the said work was a factory engaged in the industry which attracted the provisions of the Act. We have referred to these decisions only to illustrate how in dealing with different products	 the Courts have tried to interpret the entry in question; it appears that in dealing with the products with which they were concerned in each case	 they did not adopt a uniform approach	 and the reasons given and the tests applied by them are not the same or similar. It is hardly necessary to add that we propose to express no opinion on the merits of the decisions to which we have just referred. Reverting then to the question of construing the relevant entry in Sch. 1	 it is necessary to bear in mind that this entry occurs in the Act which is intended to serve a beneficent purpose. The object which the Act purports to achieve is to require that appropriate provision should be made for the employees employed in the establishments to which the Act applies; and that means that in construing the material provisions of such an Act	 if two views are reasonably possible	 the courts should prefer the view which helps the achievement of the object. If the words used in the entry are capable of a narrow or broad construction	 each construction being reasonably possible	 and it appears that the broad construction would help the furtherance of the object	 then it would be necessary to prefer the said construction. This rule postulates that there is a competition between the two constructions	 each one of which is reasonably possible. This rule does not justify the straining of the words or putting an unnatural or unreasonable meaning on them just for the purpose of introducing a broader construction. The other circumstance which has to be borne in mind in interpreting the entry is that the interpretation should not concentrate on the word "products" used in it. If this word had been used	 say for instance in the material provisions of the Sales tax Act	 the decision as to whether a particular product is liable to pay the tax	 would depend upon the consideration whether the pro duct in question falls within the scope of the said Act or not	 and in that context	 interpretation would naturally concentrate on the character and nature of the product in question. In the present case	 the entry takes us back to the first clause of Sch. 1 which refers to any industry engaged in the manufacture of any of the products enumerated by the different entries in Sch. T. So	 in 79 construing the relevant entry	 what we have to ask ourselves is : is the industry of the respondent engaged in the manufacture of any of the products mentioned in the entry ? It is the character of the industrial activity carried on by the respondent 's undertaking that falls to be determined	 and the question is not so much as to what is the product produced as what is the nature of the activity of the respondent 's undertaking; is the respondent 's undertaking engaged in the manufacture of the products in question ? This consideration is relevant for the purpose of determining the content of the entry. There is no doubt that the establishment of the respondent is a factory within the meaning of section 2 (g)	 and it would be an industry within the meaning of Sch. 1 if its manufacturing activity is found to be an activity connected with the products enumerated in the entry. The entry refers to engineering products. It is	 therefore	 necessary to clear the ground by referring to the word "engineering" which qualifies the word "products". To engineer	 according to the dictionary meaning	 is to act as an engineer	 or to employ the art of the engineer upon; to construct or manage as an engineer. "Engineering"	 according to the Encyclopedia Britannica	 Vol. 8	 in its early uses referred specially to the operations of those who constructed engines of war and executed works intended to serve military purposes. Such military engineer	 	 were long the only ones to whom the title was applied. But about the middle of 18th century a new class of engineers arose who concerned themselves with works which	 though they might be in some cases of the same character as those undertaken by military engineers	 as in the making of roads	 were neither exclu sively military in purpose nor executed by soldiers	 and those men by way of distinction came to be known as civil engineers. Thus	 civil engineering came to be known as the "art of directing the great sources of power in nature for the use and convenience of man	 as the means of production and of traffic in states	 both for external and internal trade	 as applied in the construction of roads	 bridges	 aqueducts	 canals	 river navigation and docks for internal intercourse and exchange	 and in the construction of ports	 harbours	 moles	 breakwaters and lighthouses	 and in the art of navigation by artificial power for the purposes of commerce	 and in the construction and adaptation of machinery	 and in the drainage of cities and towns". (p. 444). Gradually	 however	 Specialisation set in. The first branch of engineering which received recognition as a separate branch	 was mechanical engineering. This branch is concerned with 80 steam engines	 machine tools	 millwork and moving machinery in general	 and it was soon followed by mining engineering	 which deals with the location and working of coal	 ore and other minerals. Subsequently	 numerous other more or less strictly defined groups and sub divisions came into existence; they are : civil	 mining and metallurgical	 mechanical	 electrical	 chemical aeronautical and industrial. There are other less clearly defined branches of engineering	 such as sanitary	 structural	 drainage	 hydraulic	 highway	 railway	 electric power	 electrical communications	 steam power	 internal combustion	 marine	 welding	 production	 petroleum production	 fire protection	 safety	 architectural	 nuclear	 and management or administrative engineering (p. 448). It would thus appear that the area covered by engineering which was originally occupied only by military engineering	 is now split up into several sub areas which are covered by special branches of engineering known by special names. The entry in question refers to electrical and mechanical engineering	 and it is easy enough to determine what the denotation of these two expressions is. In the context	 'general engineering ' which is also mentioned in the entry must not be construed in a general comprehensive sense which the words may	 prima facie	 suggest	 because if that was the scope of the said words	 there was hardly any point in referring to electrical and mechanical engineering separately. Therefore	 we are inclined to hold that the expression "general engineering" does not include electrical or mechanical engineering which are specifically mentioned in the entry	 and it also does not include other branches of engineering which are known by specific or special titles. These specific branches of engineering have already been indicated by us by reference to the Encyclopaedia Britannica. After the first six entries had been included in Sch. 1 in 1952	 an Explanation was added to it in 1953 which purports to indicate what items are intended to be included in the entry "Electrical	 mechanical or general engineering products". This Explanation consists of four clauses; cl. (a) enumerates the items falling under the entry with which we are concerned in the present appeal	 whereas clauses (b)	 (c) and (d) afford similar explanation in regard to entries relating to "Iron and Steel"	 "Paper"	 and "Textiles" respectively. A glance at the items included in cl. (a) of the Explanation	 as well as the items included in clauses (b)	 (c) & (d) clearly shows that the object of the legislature in enacting the Explanation was to clarify the content of the respective entries 81 in Sch. 1	 to illustrate them by adding specific items	 and to enlarge their scope in some material particulars. The fact that an Explanation has been added with this purpose in 1953	 must also be taken into account in construing the entry in question. Mr. Agarwala for the respondent has contended that the learned single Judge was in error in holding that the respondent 's industry was engaged in the manufacture of drums and containers specified as item (24) introduced in cl. (a) of the Explanation. He argues that the core of the entry is engineering products	 and while construing the entry	 the significance of this core should not be overlooked. According to him	 the entry really takes in engineering products like machinery and equipment for generation of electrical energy. He suggests that in determining the content of this entry	 we should ask ourselves what would this entry mean to an ordinary citizen in a commercial sense ? It would mean that the products to which the entry refers are products which are useful in	 or meant for	 electrical engineering	 mechanical engineering or general engineering. This entry may also take in machines or their parts which are similarly useful in or meant for electrical	 mechanical	 or general engineering. If this narrow construction is accepted	 then	 of course	 production of brass utensils would be plainly outside the entry. There are	 however	 several considerations which suggest that this narrow construction cannot be accepted. As we have already indicated	 a glance at the items mentioned in cl. (a) of the Explanation and the extended meaning attributed to the respective entries covered by clauses (b)	 (c) and (d) of the Explanation	 clearly indicates that none of the said entries can be reasonably mad in that restricted manner. If this restricted interpretation is accepted	 then several items included in cl. (a) of the Explanation would be so completely foreign to the original content of the entry that their inclusion would appear to be unjustified. Take for instance	 item (15) in cl. (a) of the Explanation which is bicycles; item (17) which is sewing and knitting machines; item (22) which is safes	 vaults and furniture made of iron or steel or steel alloys; or item (23) which is cutlery and surgical instruments. Clause (a) of the Explanation provides that these items should be included in the entry in question	 "without prejudice to the ordinary meaning of the expressions used therein". If the narrow construction for which Mr. Agarwala contends is accepted	 it would look unreasonable that the Legislature should have introduced these items under cl. (a) of the Explanation. Besides	 82 this construction lays undue emphasis on the concept of products and erroneously treats engineering products as the core of the expression. What the entry really means is electrical engineering products	 mechanical engineering products or general engineering products and in determining the content of the entry	 we have to hark back to the relevant consideration that this entry is intended to describe an industry as falling within the scope of the Act if the said industry is engaged in the manufacture of the products in question. Now	 if we take the other entries which were initially included in Sch. 1	 the construction for which Mr. Agarwala contends cannot obviously be applied in respect of them; and so	 we think it would not be possible to adopt the narrow construction which Mr. Agarwala has suggested for our acceptance. On the other hand	 Mr. Sen for the appellant suggested that the proper way to construe this entry would be to hold that this entry would take in every industry which is engaged in the manufacture of products which are manufactured by electrical	 mechanical or general engineering process. This construction treats the process of production as the crux of the entry; and if this construction were accepted	 the scope of the content of the entry would be very wide indeed. If every product whose production can be referred to one or the other of the processes mentioned in the entry is construed to fall within its content	 then several other entries in the Schedule would	 prima facie	 appear to be redundant	 because this entry itself would be comprehensive enough to take them in. In that case	 Explanation (a) which has been added in 1953 would itself appear to be without any purpose	 because most	 if not all	 of the items introduced by the said clause would be included within the original entry itself. In our opinion	 such a wide construction would not be justified	 because we are inclined to hold that it is not the process which is important in construing the entry as the character of the activity with which the industry is concerned. That is why we are not prepared to accent the very broad construction of the entry suggested by Mr. Sen. The proper way to determine the content of this entry appears to us to be to hold that all products which are generally known as electrical engineering products	 or mechanical engineering products	 or general engineering products	 are intended to be covered by the entry	 and the object of Sch. 1 is to include within the scope of the Act every industry which is engaged in the manufacture of electrical engineering products	 mechanical engineering 83 products	 or general engineering products. It is the character of the products that helps to determine the content of the entry; can. the product in question be reasonably described as an electrical engineering product	 or a mechanical engineering product	 or a general engineering product ? That is the question to ask in every case	 and as we have already indicated	 in considering the question as to whether the product falls under the category of general engineering product	 general engineering should be construed in the limited sense which we have already shown. It may be that in a large majority of cases	 the products included within the entry may be produced by electrical or mechanical or general engineering process; but that is not the essence of the matter. The industrial activity which manufactures the three categories of products already enumerated by us	 brings the industry within the scope of Sch. 1	 and therefore	 attracts the application of the Act. If we bear in mind the three broad categories of products	 the manufacture of which brings the industry within the scope of Sch. 1	 it would be easy to appreciate the items enumerated in cl. (a) of the Explanation. Broadly stated	 items 1 to 6 can be	 said to be electrical engineering products; 7 to 10 may be said to be mechanical engineering products and the rest general engineering products. We are free to confess that the inclusion of each one of these items in cl. (a) of the Explanation cannot be easily explained; but	 on the whole	 it appears to us that the object of the Explanation was to clarify	 illustrate and expand the content of the entry in question in order that there should be no doubt as to the classes and categories of industry which were intended to be brought within the purview of the Act. Thus considered	 we think that the manufacture of brass utensils can easily be regarded as an activity the object of which is the manufacture of general engineering products. This interpretation is not as narrow as that suggested by Mr. Agarwala	 nor as broad as that suggested to Mr. Sen	 and	 on the whole	 it seems to fit in with the scheme of Sch. 1 considered in the light of the object intended to be achieved by the insertion of the Explanation in 1953 and the subsequent additions made to Sch. 1 itself. We are	 therefore	 satisfied that the Letters Patent Bench of the Punjab High Court was in error in holding that the respondent 's factory did not fall within the scope of the material provisions of the Act. Incidentally	 we may add that before the present controversy arose between the respondent and the appellant	 it appears that the respondent had 84 been making deposits towards the Provident Fund as required by the Act. The result is	 the appeal is allowed	 the order passed by the :	Letters Patent Bench is set aside and that of the learned single Judge restored with costs throughout. Appeal allowed.

Summary:
The respondent firm	 which ran a factory manufacturing brass utensils	 filed a Writ Petition for the issue of a mandamus	 restraining the appellant from recovering contributions alleged to be due under section 1(3)	 read with Schedule 1	 of the Employees Provident Fund Act	 1952	 contending	 inter alia	 that the manufacture of brass utensils did not fall within the relevant entry in Schedule 1	 i.e. it was not an industry engaged in the manufacture of 'electrical	 mechanical or general engineering products '. The learned Single Judge	 who heard the petition	 rejected the respondent 's contention	 holding that brass utensils were	 in substance	 'drums and containers ' i.e. they fell within item (24) and cl. (a) of the Explanation to Schedule 1	 and that therefore their manufacture was covered by Schedule 1. On appeal	 however	 the Division Bench reversed this finding and issued a writ as prayed for. it was contended on behalf of the respondent that the products to which the entry referred were products which were useful in	 or meant for	 electrical engineering	 mechanical engineering	 or general engineering. On the other hand	 it was the appellant 's contention	 that the entry would take in every industry which was engaged in the manufacture of products that were manufactured by an electrical	 mechanical or general engineering process. HELD : In construing the relevant entry in Schedule 1	 it was necessary to bear in mind that this entry occurred in an Act which was intended to serve a beneficent purpose. If the words used in the entry were capable of a narrow or broad construction	 each construction being reasonably possible	 and if it appeared that the broad construction would help the furtherance of the object	 then it would be necessary to prefer that construction. [78 C F] The nature of the items included in the Explanation to Schedule 1 clearly showed that some of the items could not reasonably be included within the restricted interpretation canvassed by the respondent; on the other hand	 the mention of several of items would be redundant if the wide interpretation advocated by the appellant was to be accepted. [81 B H; 82 A F] The content of the entry 'electrical	 mechanical and general engineering products ' was that all products which were generally known as electrical engineering products or mechanical engineering products or general engineering products were intended to be covered by the entry	 and the object of Schedule 1 was to include within the scope of the Act every industry which was engaged in the manufacture of electrical engineering products mechanical engineering products or general engineering products. It was the character of the products that helped to determine the content of the entry. [82 G H; 83A] 73 Thus considered the manufacture of brass utensils must be regarded as an activity the object of which was the manufacture of general engineering products. [83 F] Case law reviewed.