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N.K. Industries (Private) Ltd. v. Regional Provident Fund Commissioner

Allahabad High Court

Dec 19, 1957

Judgment

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Judgment Summary — Sahai, J.

Factual and Procedural Background

The petitioner, Messrs N.K. Industries (Private) Ltd., carrying on business as Messrs Rajendra Prasad Oil Mills, established a separate department for manufacturing tin containers with effect from 1 June 1954. That tin department initially employed ten persons. By circular dated 2 August 1956 the Regional Provident Fund Commissioner informed the Mill that the Employees Provident Fund Act, 1952 had been extended to certain industries, including edible oils and fats, by notification dated 4 July 1956. The factory had been closed from 4 August 1956 and reopened in February 1957. The petitioner applied the Provident Fund scheme to workers with continuous service of more than 240 days effective 1 March 1957.

On 2 April 1957 an Inspector visited the factory. The opposite party then required the petitioner to implement the Employees Provident Fund scheme retrospectively from 1 July 1954, to deposit the employer's share of contributions for the period 1 July 1954 to 28 February 1957, to pay 3% administrative charges on both employer's and employee's contributions, and to pay damages under section 14B from the date payment fell due until actual payment. The demand was premised on an assertion that as of 1 June 1954 the factory employed more than fifty persons and that the tin manufacture was an industry listed in Schedule I.

The petitioner filed the present writ petition challenging the Regional Provident Fund Commissioner's orders. The petition raised multiple grounds including that the tin manufacture was not within Schedule I, that the relevant department employed fewer than fifty persons, that the Act did not apply to the oil industry on 1 June 1954, that the demand could not be made retrospectively, that tins were manufactured only for internal use, and that employees' contributions had not been deducted so the employer could not be held liable. The respondent filed a counter-affidavit alleging inter alia that the tin department's employment rose to 48 by January 1957, that tin containers were sold outside the factory to other concerns, and that the statutory Scheme had been in force since 2 September 1952.

Legal Issues Presented

Whether the provisions of the Employees Provident Fund Act, 1952, apply to the petitioner's factory (the central question framed by the court).
Whether the phrase "in which fifty or more persons are employed" in section 1(3) refers to the factory as a whole or to the particular industry/department within the factory.
Whether the manufacturing of tin containers for internal use (i.e., for filling oil manufactured by the petitioner) can be classed as an industry for the purposes of Schedule I and thus bring the department within the Act.
Whether section 16(1)(b) (the three-years-from-establishment exclusion) prevents the Act applying to the tin department established on 1 June 1954.
Whether the respondent's delay in making a demand or the absence of deductions of employee contributions precludes recovery of employer and employee shares by the provident fund authorities.
Whether the Regional Provident Fund Commissioner's order infringed any fundamental rights of the petitioner under the Constitution (as alleged by the petitioner).

Arguments of the Parties

Petitioner's Arguments

The manufacturing of tins was a department separate from the manufacture of oils and could not be classified under the expression "electrical, mechanical or general engineering products" in Schedule I.
Only ten persons were employed in the tin department in 1954; therefore the Act could not be applied to those engaged in that department.
The Employees Provident Fund Act did not apply to the oil industry on 1 June 1954; consequently the respondent had no jurisdiction to claim contributions retrospectively from that date.
Even if tin manufacture began on 1 June 1954, section 16(1)(b) prevents application of the Act until three years after establishment (i.e., until 1 June 1957) because the tin department was newly established on 1 June 1954.
The tins were manufactured solely for filling oil made by the petitioner and not for sale, so the department should not be treated as an industry for Schedule I purposes.
No employee contributions were deducted during the relevant period and many workers have since left employment, so the employer's share and administrative charges cannot be claimed.
No administrative charges can be levied for the period 1 June 1954 to 28 February 1957.
The Regional Provident Fund Commissioner's order dated 18 July 1957 (and subsequent letters threatening action) infringes the petitioner's fundamental rights under the Constitution.

Respondent's Arguments (as set out in the counter-affidavit)

In addition to oil manufacture, the petitioner also carried on manufacture of tin containers and the tin-department employment increased from ten in June 1954 to 48 in January 1957.
When the circular was sent, the respondent was not aware that the petitioner also manufactured tin containers; this fact was not brought to the respondent's notice by the petitioner.
Notification S.R.O. 1509 framed the Scheme under the Employees Provident Fund Act and its date is 2 September 1952 (the Scheme having been framed as of that date).
Tin containers manufactured by the petitioner were not used only internally but were sold to other oil concerns controlled and operated by the petitioner.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Oudh Sugar Mills Ltd. v. Regional Provident Fund Commissioner, A.I.R. 1957 Bom. 149	Held by a Division Bench of the Bombay High Court (per the reports) that before the Act can be made applicable it must be found that the number of persons engaged in that particular industry should be more than fifty irrespective of the number of persons employed in the factory.	The court respectfully disagreed with this holding and declined to follow it; the judge considered the Bombay approach incorrect and contrary to the text and structure of section 1(3).
Nagpur Glass Works Ltd. v. Regional Provident Fund Commissioner, A.I.R. 1957 Bom. 152	Similar view to Oudh Sugar Mills: that the question of fifty or more persons must be applied in relation to the particular industry/department rather than the factory as a whole.	The court again declined to follow this authority and expressed inability to agree with the decisions of the Bombay High Court in these two matters.
Kokkalai Rice & Oil Mills v. Regional Provident Fund Commissioner (Original Petition No. 78 of 1953, decided 22-2-1954), Travancore-Cochin High Court	The Travancore-Cochin High Court took the view that the relevant "fifty or more persons" requirement in section 1(3) relates to the factory as a whole rather than to a particular department or industry.	The court followed the Travancore-Cochin decision, stating complete agreement with that view and adopting it as the correct interpretation of section 1(3).

Court's Reasoning and Analysis

The court identified the primary statutory provision governing application as section 1(3) of the Employees Provident Fund Act, 1952, and the definitions of "factory", "industry" and "employee" within the Act. The court's analysis proceeded through the following steps (as set out in the opinion):

Statutory text reading: The court examined section 1(3) and focused on whether the phrase "in which fifty or more persons are employed" qualified "industry" or "factory". It concluded that, read in context, the words relate to "factory" and not to "industry".
Grammatical and syntactical justification: The court analyzed the later portion of section 1(3) which allows the Central Government to apply the Act to factories employing fewer than fifty persons by notification. The phrase "to all factories employing such number of persons less than fifty as may be specified in the notification and engaged in any such industry" linked "to all factories" with "engaged in any such industry", showing that strength refers to the factory.
Support from section 19A: The court relied on section 19A, particularly sub-clause (ii) which refers to "whether fifty or more persons are employed in a factory", as demonstrating legislative intent that the fifty-person threshold is to be applied at the level of the factory rather than to a particular industry or department within the factory.
Application to departmental strength: From this statutory reading the court reasoned that the Act may apply to a factory employing fifty or more persons even if in the particular department manufacturing the scheduled article fewer than fifty persons are employed. Conversely, if the factory as a whole employs fewer than fifty persons, the Central Government may, by notification, extend applicability to factories below that threshold.
Whether internal manufacture counts as industry: The court examined definitions of "factory" and "industry" and held that manufacturing an article listed in Schedule I within part of the premises—even if for internal use—falls within the scope of "manufacturing" under the Act. The judge expressly accepted the view that manufacturing for use by the factory itself can amount to manufacture covered by the schedule.
Section 16(1)(b) (three-year exclusion) analysis: The court interpreted section 16(1)(b) to refer to the three years from the establishment of the "factory" and not from the establishment of a new department or industry within a pre-existing factory. Because the factory was established long before 1954, the three-year exclusion did not assist the petitioner.
Employer/employee contributions and recovery: The court referred to the Scheme (framed 2 September 1952) and specifically to paragraphs 29–32 which make clear that the employer is initially required to pay both the employer's and the employee's contributions and is entitled to recover the employee's share by deduction from wages. Consequently, the employer had the statutory duty to make contributions, and failure to deduct from employees did not absolve the employer of the obligation to contribute and recover.
Delay/waiver and fundamental rights contentions: The court rejected the contention that the respondent's delay waived the right to demand contributions and also found no demonstration of how the Regional Provident Fund Commissioner's order infringed any fundamental rights of the petitioner.
Treatment of existing authorities: The court examined recent Bombay High Court decisions taking the contrary view, expressed disagreement with them (noting lack of detailed reasoning in those reports), and followed the Travancore-Cochin High Court decision which supported its interpretation.

Holding and Implications

Holding:

Petition dismissed.

Implications (as stated in the opinion and limited to matters addressed therein):

The court held that section 1(3)'s fifty-person threshold is to be applied in relation to the factory as a whole and not to individual departments or industries within the factory.
The court concluded that manufacture of scheduled articles in a part of the factory (even for internal use) falls within the Act's scope if the statutory conditions are satisfied.
The court held that the three-year exclusion in section 16(1)(b) refers to three years from the establishment of the factory and does not permit treating a new department within an already-established factory as outside the Act for three years.
The court held that under the Scheme the employer is required to pay both the employer's and employee's contributions initially and may recover the employee's share by deduction; failure to deduct earlier did not relieve the employer of the statutory obligation.
The direct, concrete outcome for the parties in this case is that the writ petition is dismissed and each party was directed to bear its own costs.

The court stated it followed the Travancore-Cochin High Court authority and disagreed with two reported Bombay High Court decisions on the point of whether the fifty-person requirement applies to a department/industry or to the factory as a whole.

Show all summary ...

Sahai, J.:— The petitioner Messrs N.K Industries (Private) Ltd. are carrying on the business of manufacturing oil under the name and style of Messrs Rajendra Prasad Oil Mills. With effect from June 1, 1954, a separate department for the manufacture of tins was established in the said mills. This department employees ten persons only. Messrs Rajendra Oil Mills were informed by circular No. 168 dated August 2, 1956, by the Regional provident Fund Commissioner, that the provisions of the Employees Provident Fund Act, 1952, had been extended to thirteen additional industries including edible oils and fats by means of notification no. S.R.O 1956 dated 4th July, 1956. It is alleged by the petitioner that this letter was received sometimes in the first week of August 1956. The Rajendra Oil Mills were closed for indefinite period with effect from 4th August, 1956 and the factory was not working at the time when the circular was received. The factory resumed work in February 1957 and it is alleged that the Provident Fund scheme was made applicable by Messrs Rajendar Oil mills to the workers having a continuous service of more than 240 days with effect from 1st March, 1957. On 2nd April, 1957 Sri B.B Singh, Provident Fund Inspector visited the factory and thereafter a letter was received from opposite party by which Messrs Rajendra Prasad Oil Mills are required to implement the Employees provident Fund scheme with effect from 1st July, 1954 and thereafter to deposit employers share of contribution for the period 1st July, 1954 to 28th February, 1957 and to pay 3 per cent administrative charges on both employers and employees contribution. Messrs Rajendra Prasad Oil Mills were further asked to pay damages on the said alleged dues under Sec. 14B of the Act from the date on which according to them the payment fell due to the date of the actual payment. The basis of demand was that on 1st June, 1954 Messrs Rajendra Prasad Oil Mills employed more than 50 persons and that they were engaged in the manufacture of tins from the said date which according to the opposite party was the industry included in Schedule 1 of the Act on that date. The petitioners alleges that the manufacture of tins was separate from the manufacture of oils and it could not come within the definition of “electrical, mechanical or general engineering products” as mentioned in schedule I of the Act. Even if it did the manufacture of tins having been started on opposite party's own showing with effect from 1st June, 1954, the provisions of the Provident Fund Act and the Employees Provident Fund Scheme cannot be made applicable to it by virtue of the provisions of Sec. 16 of the Act prior to 1st June, 1957. The petitioner took up that position with opposite party and sent a reply on behalf of Rajendra Prasad Oil Mills on 22/26th May, 1957. A reply to the aforesaid letter was received on 24th July, 1957 in which it was contended that the manufacture of tins was covered by the expression ‘electrical, mechanical and general engineering products’ occurring in schedule I of the Act and as the factory was engaged in the maunfacture of oil and tins simultaneously on 1st June, 1954 employing more than 50 persons as a composite unit, it became subject to the provisions of the Act with effect from 1st June, 1954. By this letter the opposite party demanded from the petitioner the employers share of contribution, administrative charges for the period 1st July, 1954 to the 28th February, 1957 and the petitioner was threatened in case of non-compliance with action under Sec. 14B of the Act. The opposite party by his letter No. 7926.UO/III/RO dated 13-8-57 which was received by the petitioner on 27-8-1957 has threatened to take legal action against the petitioner for non-compliance with the aforesaid orders. On these facts the present writ petition has been filed. The grounds taken in the petition are that the manufacture of tins was not covered by schedule 1 of the Employees Provident Fund Act, that only 10 persons were employed in the manufacture of tins in 1954 and as such the Act could not be applied to the persons engaged in that industry, that the Employees Provident Fund Act did not apply to oil industry on 1st June, 1954, that the opposite party not having realised the demand at the proper time could not claim to demand it with retrospective effect i.e on 1-6-1954, that inasmuch as the tins were manufactured for the purpose of filling oil maunfactured by the petitioner and not for sale the same could not be classified as industry for the maunfacture of tins, that no employees share of contribution having been deducted in respect of the workers from 1st June, 1954 to 28-2-1957 and most of the workers having left services of the concern the employers share of contribution and administrative charges cannot be claimed, that no administrative charges can be levied in respect of the period from 1st June, 1954 to 28th February, 1957 and that the order of the Regional Provident Fund Commissioner dated 18-7-1957 infringes the fundamental right of the petitioner guaranteed under the Constitution. A counter affidavit has been filed on behalf of the respondents which is sworn by Raj Kumar Rastogi, Provident Fund Inspector, Kanpur. In this counter affidavit it is alleged that in addition to the manufacture of oil the petitioner company also carries on the maunfacture of tin containers and the number of employees in the tin containers manufacturing section of the factory increased from ten in June 54 to 48 in January 1957. It is further alleged that at the time when the circular letter was sent to the petitioner the fact that the petitioner was also engaged in the manufacture of tin containers was not known to the opposite party nor was it brought to his notice by the petitioner. It is also alleged that the Central Government's notification no. SRO 1509 is a notification framing a scheme under the Employees Provident Fund Act, 1952. Its date is 2-9-1952 and not 2-9-1957. It is also sworn in this affidavit that tin containers manufactured by the petitioner are not used by Messrs Rajendra Oil Mills only but are sold to other oil concerns controlled and operated by the petitioner. In the rejoinder affidavit filed by the petitioner and sworn by Hari Chand Gupta it is stated that the number of workers in the tin manufacture department on or about 2nd August, 1956, the last date covered by the writ was 8. The managerial staff and watch and ward section which look after the whole section were 10 and that employed by the contractor engaged for purpose of soldering tins was about 13. These persons were not the employees of the applicant. It is also alleged that the employees are not entitled to take any benefit out of the employers share of contribution unless the employees have also paid their share of contribution. No attempt is being made to realise their contribution even if it is payable. It is further alleged that many of the employees working during the period covered by the writ are no longer in the service of the petitioner.

2. I have heard Mr. Jagdish Swarup, for the petitioner and Mr. S.S Dhawan for the respondent. The main question to be considered in this case is whether the provisions of the Employees Provident Fund Act, 1952 apply to the case of the petitioner. The application of the Act is provided for in Sec. 1(3) of the said Act which reads as follows:

“Subject to the provisions contained in Sec. 16, it applies in the first instance to all factories engaged in any industry specified in Schedule I in which fifty or more persons are employed, but 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 all factories employing such number of persons less than fifty as may be specified in the notification and engaged in any such industry.”

3. The expressions “factory”, ‘industry’ and ‘employee’ have also been defined in the Act. The definition of ‘factory’ runs as follows:—

“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.”

4. The definition of ‘industry’ read as,

“any industry specified in Schedule I, and includes any other industry added to the schedule by notification under Sec. 4; The word ‘employee’ has been defined in the following words:—

“any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of a factory, 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 factory.”

5. The point therefore to consider is whether the expression “in which fifty or more persons are employed” applies to ‘factories’ or to ‘industry’. The petitioner's case is that it relates to ‘industry’ and not to ‘factories’. To my mind the words “in which fifty or more persons are employed” relate to ‘factories’ and not to ‘industry’. I say so because the latter part of this section, which is as follows, to my mind, makes it clear:—

“……….but the Central Government may, after giving not less than two month's notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act, to all factories employing such number of persons less than fifty as may be specified in the notification and engaged in any such industry.” It appears to me that the words “engaged in any such industry” are in connection with the words “to all factories” and not with “such number of persons less than fifty”. If the words “after giving not less than two months notice of its intention so to do, by notification in the Official Gazette” and the words “as may be specified in the notification” are removed the sentence will run thus:—

“…….but the Central Government may apply the provisions of this Act to all factories employing such number of persons less than fifty and engaged in any such industry.”

6. It is obvious therefore that it is the strength of the factory and not of that: department in which that particular industry is being carried on which is to be considered. In other words the Act would apply to factories employing fifty or more persons though in that department of the factory in which that particular industry is being carried on less than fifty persons are working. In my opinion any construction other than the one I am giving would be in conflict with the rules of grammer. If the latter part of Sec. 1, sub-sec. (3) of the Act makes it clear as, in my opinion, it does that the Central Government may apply the provisions of this Act to all factories employing such number of persons less than fifty irrespective of the number of persons employed in the department in which that particular industry is being carried on, the first part of this section should also be held to apply to all factories employing fifty or more persons though in the particular department in which that particular industry is carried on the number of persons may be less than fifty. The provisions of Sec. 19A of the Act also support me in coming to the conclusion to which I have come. Sec. 19-A runs as follows:—

“If any difficulty arises in giving effect to the provisions of this Act, and in particular if any doubt arises as to—

(i) whether a factory is engaged in any industry specified in Schedule I; or

(ii) whether fifty or more persons are employed in a factory; or

(iii) whether three years have elapsed from the establishment of a factory; or

(iv) whether the total quantum of benefits to which an employee is entitled has been reduced by the employer, the Central Government may, by order, made such provisions or give such direction not inconsistent with the provision of this Act, as appear it to be necessary or expedient for the removal of the doubt or difficulty; and the order of the Central Government, in such cases, shall be final.

7. The provisions of S. 19A have been enacted with a view to give the Central Government the power to remove difficulties that may arise in giving effect to the provisions of this Act. Four difficulties could be contemplated and they are mentioned in this section. Sub-clause (ii) of this section indicates the mind of the legislature that the number of persons fifty or more was in relation to a factory and not to an industry. The use of the word ‘factory’ and the exclusion of the word ‘industry’ in this sub-clause conclusively proves this. If it was in relation to an industry the words would not have been “whether fifty or more persons are employed in a factory” but would have been whether fifty or more persons are employed in a factory and are engaged in that particular industry. Reading the Act as a whole I am of the opinion that the contention of the petitioner is not sound. My attention has been invited to two cases of the Bombay High Court. The first is Oudh Sugar Mills Ltd.… v. Regional Provident Fund Commissioner, Bombay,…. A.I.R 1957 Bom. 149.. In that case a Division Bench of the Bombay High Court came to the conclusion that before the Act can be made applicable it must be found that the number of persons engaged in that particular industry should be more than fifty irrespective of the number of persons employed in the factory. The other case is Nagpur Glass Works Ltd. v. Regional Provident Fund Commissioner A.I.R 1957 Bombay 152., wherein the same view has been taken. With the greatest respect to the learned Judges of the Bombay High Court I am unable to agree with their decisions. Both the decisions were given by the same learned Judges i.e Madholkar and Tambe, JJ. In the reports of the two cases mentioned above there is no discussion in details of the reasons of the learned Judges for coming to the conclusion at which they have arrived. A contrary view has been taken in the case of Kokkalai Rice & Oil Mills v. The Regional Provident Fund Commissioner (Original Petition No. 78 of 1953 decided on 22-2-1954) by the Travancore Cochin High Court. I find myself in complete agreement with the view that the Travancore Cochin High Court has taken and follow that decision. The next point to be considered is whether the provisions of the Act would be applicable to the petitioner's case inasmuch as it is their allegation that the tin containers which they are manufacturing are for the purpose of filling oil manufactured by the petitioner and not for sale and as such the department of manufacture of tin containers could not be classified as industry for the manufacture of tins. This allegation of the petitioner has been controverted by the respondents and in the counter affidavit sworn by Raj Kumar Rastogi, the Provident Fund Inspector, it has been stated that it is not correct that the petitioner manufactures tin containers only for the use of Messrs Rajendra Prasad Oil Mills, Kanpur, but they also manufacture and sell tin containers to other oil concerns controlled and operated by the petitioner. I have already given the definition of ‘factory’ as given in the Act in the earlier part of my judgment. From the definition it would appear that the manufacturing process of scheduled article need not go on in the entire premises of the factory but it may go on in any portion of it. The definition of the word ‘industry’ has also been reproduced by me in this judgment. To my mind the word ‘manufacturing’ will include, making of goods even for the use of the factory itself. These definitions read together clearly indicate that if in a part of a factory any artiticle which fell within the ambit of the first schedule is manufactured though not for the purpose of marketing it and the number of employees is fifty or more then the provisions of the Act would be attracted. In the Bombay case reported in A.I.R 1957 Bombay, page 149 one of the learned Judges, i.e Tambe, J. took similar view though Madholkar, J. took contrary view. I am in agreement with the views of Tambe J. and do not find any substance in this contention of the petitioner also.

8. The next submission of the learned counsel for the petitioner is that the Employees Provident Fund Act did not apply to the oil industry on 1st June, 1954 and the opposite party had no jurisdiction to demand the employers contribution or any other dues in respect of workers engaged in oil industry on 1st June, 1954 and the demand in regard to them is wholly illegal. Sec. 16 of the Act runs as follows:—

“16(1) This Act shall not apply to—

(a) any factory belonging to the Government or a local authority, and

(b) any other factory, established whether be for or after the commencement of this Act, unless three years have elapsed from its establishment.”

9. The petitioner's contention is that with effect from June 1, 1954 a separate department for manufacturing of tins was established in the Rajendra Prasad Oil Mills. It is contended that Sec. 1 of the Act is subject to the provisions of Sec. 16 of the Act and it is argued that inasmuch as the tin department came into existence only from June 1, 1954, the Act could not apply to the petitioner's case till three years after it, i.e 1st June, 1957, and in that view of the matter it is contended that the demand of the respondent for the employer's contribution of the provident fund from the petitioner was illegal. I am unable to agree with this contention because the words in Sec. 16(1)(b) of the Act are “unless three years have elapsed from its establishment”, that is to say, from the establishment of the factory and not of the industry. Both the words ‘factory’ and ‘industry’ have been defined in the Act. The factory admittedly was established long before 1954. I, therefore, overrule this contention of the petitioner.

10. Lastly it is submitted that no demand was made for about three years the demand would be deemed to have been waived by the Regional Provident Fund Commissioner and in any case inasmuch as no deductions were made from the wages of the employees for this period and some of the employees have already left the service of the concern the employers cannot be made liable to make their contributions because even if those contributions were made by them in the absence of contributions from the employees the Provident Fund Scheme cannot come into force. In Schedule II of the Employees Provident Fund Act it is provided that provisions will be made in a scheme with regard to the time and manner etc. in which the contributions shall be made to the Fund by the employers and by, or on behalf of, employees, the contributions which an employee may if he so desires, make under sub-sec. (1) of Sec. 6, and the manner in which such contributions may be recovered. Chapter V of the Employees Provident Fund Scheme, 1952, deals with contributions. Paragraph 29 of that scheme runs as follows:—

“29(1) The contributions payable by the employer under the scheme shall be at the rate of one anna in the rupee of basic wages and the dearness allowance payable to each to whom the Scheme applies.

(2) The contribution payable by the employee under the Scheme shall be equal to the contribution payable by the employer in respect of such employee.

(3) The contribution shall be calculated on the basis of wages and dearness allowance actually drawn during the whole month whether paid on daily, weekly, fortnightly or monthly basis.

(4) Each contribution shall be calculated to the nearest quarter of a rupee, two annas or more to be counted as the next higher quarter of a rupee. Paragraph 30 of the Scheme runs as follows:—

“30. The employer shall, in the first instance pay both the contribution payable by himself (in this scheme referred to as the employer's contribution) and also, on behalf of the member employed by him, the contribution payable by the member (in this scheme referred to as the member's contribution).

11. This would show that it is the employer who is to make contribution both with regard to his share and with regard to the share of the employee. He can, under paragraph 32, recover the amount of the employee's contribution from the employee. Paragraph 32 of the Scheme runs as follows:—

“32. The amount of members’ contribution paid by the employer shall, notwithstanding the provisions in this scheme or any law for the time being in force or any contract to the contrary be recoverable by means of deduction from the wages of the member and not otherwise:

……………………………….”

12. The Scheme was framed as far back as 2nd September, 1952. The petitioner should have made its own contribution and also that of the employees long before a demand was made from it. The petitioner could have after making the contribution of the employees share recover the same from the employee concerned. There is a duty cast upon the petitioner to contribute both the shares i.e his share as also that of the employee, inasmuch as the petitioner did not do so it is to blame. I, therefore, do not see any force in this contention either. The ground that manufacture of tins was not covered by schedule 1 of the Employees Provident Fund Act has not been pressed before me. It has also not been shown to me as to how the order passed by the Regional Provident Fund Commissioner infringes any of the fundamental rights of the petitioner guaranteed under the Constitution. In my opinion the petition is misconceived. I dismiss it, but in the circumstances of the present case, direct the parties to bear their own costs.

13. Petition dismissed.