1. These writ petitions involve common question of law and, therefore, they are disposed of by this common judgment.

2. For the convenient disposal of all these writ petitions, the facts given in the case of The Cotton Corporation of India Ltd. v. The Union of India (D.B. Civil Writ Petition No. 1935 of 1991) are taken into consideration.

3. The petitioner is a Corporation established with a view to regulate the purchase and sale of raw and processed cotton, their storage and transportation. The petitioner by this writ petition has prayed that the orders Annexures 2 and 3 may be quashed and the provisions of Section 5 of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (referred to hereinafter as 'the Act of 1952') may be struck down.

4. In order to appreciate the controversy, which has been raised in this writ petition and the other similar writ petitions, it will be necessary to refer to certain provisions of the Act of 1952. Sub-section (3) of S.I. lays down that subject to the provisions contained in Section 16 of the Act of 1952, it applies to every establishment which is a factory engaged in any industry specified in Schedule I and in which twenty or more persons are employed and to any other establishment employing twenty or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette, specify in this behalf. It is further provided that while covering the provisions of this Act to any establishment employing such number of persons less than twenty by notification in the Official Gazette, the Central Government shall give not less than two month's notice of its intention so to do. Section 2A lays down that the establishment shall include all departments and branches. Section 4 provides a power to the Central Government to amend Schedule I from time to time. Section 5 provides that the Schemes have to be framed by the Central Government. Section 5 which is relevant to our purpose reads as under:-

"5. Employees' Provident Fund Schemes.,- (1) The Central Government may, by notification in the Official Gazette, frame a Scheme to be called the Employees' Provident Fund Scheme for the establishment of provident funds under this Act for employees or for any class of employees and specify the establishments or class of establishments to which the said Scheme shall apply and there shall be established as soon as may be after the framing of the Scheme, a Fund in accordance with the provisions of this Act and the Scheme.

(1A) The fund shall vest in, and be administered by the Central Board constituted under Section 5A.

(1B) Subject to the provisions of this Act, a Scheme framed under Sub-section (1) may provide for all or any of the matters specified in Schedule II.

(2) A Scheme framed under Sub-section (1) may provide that any of its provisions shall take effect either prospectively or retrospectively on such date as may be specified in this behalf in the Scheme."

5, According to Section 5, the Central Government has to frame a Scheme for providing funds for the welfare of the employees or any class of employees and specify the establishments or class of establishments to which the said Scheme shall apply. The Fund shall be administered by the Central Board constituted under Section 5A of the Act of 1952. It further provides that subject to the provisions of this Act the Scheme shall be framed under Sub-section (1) which shall provide for all or any of the matters specified in Scheduled II. Sub-section (2) of Section 5 further says that a Scheme framed under Sub-section (1) can be given effect either prospectively or retrospectively on such date as may be specified in this behalf in the Scheme. A proforma of the Scheme has been given in Schedule II. It is postulated that the Scheme should necessarily contain all those factors given in Schedule II. In the purported exercise of the powers conferred by the provisions of the Act of 1952 the Schemes were framed by the Central Government from time to time and the Scheme which is under challenge is the Scheme of 1990. This is known as The 'Employees' Provident Funds (Third Amendment ) Scheme, 1990. It is not necessary to refer to whole of the Scheme but suffice it to reproduce here the provisions of the Scheme which are relevant for deciding the controversy in issue before us. Clause 2(ii) which is relevant for our present purpose reads as under:-

"2(ii) For paragraph 26, the following paragraph shall be substituted, namely:-

26. Class of employees entitled and required to become member of the Fund. - (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 day this paragraph comes into force in such factory or other establishment.

(b). 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 also be entitled and required to become a member of the Fund from the day this paragraph comes into force in such factory or other establishment if on the date of such coming into force, such employee is a subscriber to a provident fund maintained in respect of the factory or other establishment or in respect of any other factory or establishment (to which the Act applies) under the same employer.

Provided that where the Scheme applies to a factory or other establishment on the expiry or cancellation of an order of exemption under Section 17 of the Act, every employee who but for the exemption would have become and continued as a member of the Fund, shall become member of the Fund forthwith."

By this clause it has become imperative that 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 day this paragraph comes into force. But the effect of this clause having come into force is that every member already employed or is being employed for any work shall be entitled to the benefit of the Scheme, the grievance of the petitioners is that by virtue of this amendment in the Scheme of 1990 the effect will be that if any incumbent is employed even for a short duration then too he will become a member of the Employees Provident Fund and his contribution towards the Provident Fund shall be deducted and likewise the contribution will have to be made by the employer. Therefore, the main grievance is that even a casual worker who is employed in connection with the work of the factory or any other establishment shall become a member of the Provident Fund and this is likely to cause hardship in the operation of the Scheme.

6. We have pointedly asked the learned counsel as to what is the invalidity in Section 5 of the Act of 1952. But none of the learned counsel has made any grievance regarding the validity of Section 5 of the Act of 1952 and for obvious reason that it does not suffer from any vice. Section 5 of the Act of 1952 only authorises the Central Government to frame the Scheme which is known as the Employees' Provident Fund Scheme. Therefore, simply conferring a power on the Central Government for framing the Scheme, such delegation of power on the Central Government cannot be said to be ultra vires of any provisions of the Act. Therefore, such delegation of power under Section 5 of the Act of 1952 on the Central Government for framing the scheme cannot be said to be ultra vires of the Act or Article 14 of the Constitution of India.

7. But the grievance is that the Scheme which has been framed by the Central Government is ultra vires of certain provisions of the Act. In this connection, it is submitted that the Scheme is against the provisions of the Act and in this connection, learned counsel has made reference to the objects and reasons and also invited our attention to Section 1(3)(b) of the Act of 1952.

8. We have gone through the Objects and Reasons. The main object for enacting this Act was to create a fund for the welfare of the workmen so that it may provide a financial assistance to the workmen and their families. Therefore, so far as the framing of the scheme for the welfare of the workmen/employees is concerned, there is nothing to say that the scheme will be against the main object. The primary object is to create a fund for the welfare of the workmen and their families and to ensure their financial stability. Therefore, the framing of the Scheme under Section 5 cannot be said to be against the Objects and Reasons of the Act. Similarly Section 1(3)(b) also lays down that the Central Government can apply the Scheme to any establishment employing twenty or more persons or class of such establishments which the Central Government may by notification in the Official Gazette specify in this behalf. If the Central Government feels that any other establishments require to be covered by the Scheme then it can cover the same by giving not less than two months' notice of its intention so to do by notification in the Official Gazette to such establishments even though they have employees less than twenty. Therefore, there is nothing which works against framing of the Scheme.

8A. Learned counsel has invited our attention to Nazeena Traders (P) Ltd. represented by its Director Masood Ali Khan v. Regional Provident Fund Commissioner, Hyderabad, 1966-II-LLJ-334. In this case it was observed that a casual labour falls outside the scope of Section 1(3) and hence the establishments, whose employees do not come to twenty, excluding casual labourers, do not fall within the purview of Section 1(3) and the provisions of the Provident Fund Scheme cannot be applied to them. It was further observed that the causal labour is engaged by or through a contractor does not make any difference for the decision of the question, the only criterion being whether they were casual laborers or not. Against this very judgment a special leave petition was filed before the Hon'ble Supreme Court and the Hon'ble Supreme Court explained this judgment in The Provident Fund Inspector, Guntur v. T.S. Hariharan 1971-I-LLJ-416. The Hon'ble Supreme Court after examining the whole scheme of the Act and various provisions of the Act and considering the judgment of the Andhra Pradesh as well as the Madras High Courts struck a mean between the two and observed as under (p.421):-

"Considering the language of Section 1(3)(b) in the light of the foregoing discussion it appears to us that employment of a few persons on account of some emergency or for a very short period necessitated by some abnormal contingency which is not a regular feature of the business of the establishment and which does not reflect its business prosperity or its financial capacity and stability from which it can reasonably be concluded that the establishment can in the normal way bear the burden of contribution towards the provident fund under the Act would not be covered by this definition. The word "employment" must, therefore, be construed as employment in the regular course of business of the establishment; such employment obviously would not include employment of a few persons for a short period on account of some passing necessity or some temporary emergency beyond the control of the company. This must necessarily require determination of the question in each case on its own peculiar facts. The approach pointed out by us must be kept in view when determining the question of employment in a given case."

9. Learned counsel has also invited our attention to the decision of Eastern Arts Corporation v. S.P. Mehrotra (1986 Lab IC 1402). In this case a driver was engaged by the employer/establishment in a leave vacancy of regular worker. In that context, it was held that such worker will not be covered under the purview of Section 1(3)(b). In this connection, learned counsel relied upon the observations made in T.S. Hariharan's case (supra). In that case the Hon'ble Supreme Court interpreted the word 'employment' and it was held that the word 'employment' means the employment in the regular course of business of an establishment. Such employment will not include employment of a few persons for a short period on account of some passing necessity or some temporary emergency beyond the control of the establishment.

9A. In Bikaner Cold Storage Company, Bikaner v. Regional Provident Fund Commissioner, Employees' Provident Fund, Rajasthan, 1981-I-LLJ-181, it was held that the labourers who were employed connected with the repairs of factory building are not employed for normal business of establishment and cannot be treated as labourers of the establishment and the provisions of the Act shall not be made applicable.

10. Learned counsel tried to emphasise that the effect of the Scheme of 1990 will be that all the employees irrespective of the fact whether they are casual or permanent will be covered by the Scheme which is not the intention of the Act and the ratio laid in a series of decisions of this Court as well as the Hon'ble Supreme Court. Learned counsel submitted that the present substitution of para 26 in the Scheme of 1990 does not make any difference in the casual and regular employees. Therefore, it is going to cause serious hardship to the employer for collecting the contribution towards the Fund.

11. As against this Mr. Vyas, learned counsel for the respondents, has invited our attention to P.M. Patel & Sons v. Union of India 1986-I-LLJ-88. This was a case of beedies employees and in this case the definition of 'employee' came up for consideration before their Lordships of the Supreme Court and their lordships of the Supreme Court held that the expression 'employee' is wide enough. It includes not only persons employed directly by the employer but also persons employed through a contractor. Moreover, they include not only persons employed in the factory but also persons employed in connection with the work of the factory. Accordingly, a home worker, by virtue of the fact that he rolls beedies, is involved in an activity connected with the work of the factory engaged in the task of rolling beedies. It was observed that the words 'in connection with' read with the definition of 'employee' cannot be confined to work performed in the factory itself as a part of the total process of the manufacture.

12. But the question before us is that whether such a casual employee can be covered by the Scheme of 1990 or not. So far as M/s. P.M. Patel & Son's case (supra) is concerned, the question in issue was not whether the casual employee is included in the extended definition of employee or not. In this case the question was whether an employee who is working in the process of rolling beedies at home can be covered by the Scheme or not. In that context their Lordships of the Supreme Court observed that since he is employed in the activities of manufacturing of beedies, therefore, he will be treated to be an employee of the factory and will be covered by the Scheme. But the question before us is that whether such a casual labour/employee whose services are being engaged for certain job can be given the benefit of the Scheme or not. In this connection, their Lordships of the Supreme Court in the case of T.S. Hariharan (supra) clearly laid down that such casual labour/ employee will not be covered. As mentioned above, the Hon'ble Supreme Court in the aforesaid case has struck a mean that the question as to whether an employee is casual or permanent shall be dependent on the facts and circumstances of each case. But the Hon'ble Supreme Court has laid down that in order to determine as to whether an employee is casual or not one has to see the duration during which the employee has remained in service. In this connection, the Hon'ble Supreme Court has illustrated the situation by referring to an illustration that, suppose certain fire took place in the establishment and the establishment has to engage certain employees for extinguishing the accidental fire for couple of hours. The Hon'ble Supreme Court observed that the scheme of the Act did not contemplate that such person should also be covered by the provisions of the Act. At the same time the Hon'ble Supreme Court has further observed that, suppose an establishment which regularly employs for its general business the required number of persons for a major part of the year, to say for 360 days every year, merely because the employment of the required number does not extend to full one year. Therefore, the Apex Court did not propose to lay down such a sweeping proposition as both the extreme views do not conform to the object of the Act. Therefore, the ratio is that so far as the casual labourers are concerned, they are not governed by the provisions of the Act. If they are not covered by the Act, therefore, likewise they are not covered by the Scheme as well. The Scheme of 1990 does not specify as to whether it will exclude the casual employees or not. Therefore, the expression 'employee' occurring in the Scheme has to be read in the context of the main Act and the interpretation of the expression 'employee' given by the Hon'ble Supreme Court in the case of T.S. Hariharan (supra). Therefore, Clause 2 (ii) of the Scheme of 1990 should be construed to mean that the employee here should be taken to be an employee employed in the establishment other than those who are excluded in connection with the establishment should not be a casual labour/ employee. But the question as to whether the employee is a casual or not will again be a question of fact and this will depend upon each case. Section 19A lays down that such question can be determined by the Central Government. Therefore, we hold that the Scheme is not ultra vires of the Act but it will not be applicable to casual employees and where in a particular case an employee is casual or not which is essentially a question of fact that can only be clarified by the Central Government, under Section 19A of the Act of 1952.

13. Before parting with the case, we may observe that a genuine difficulty can arise in the matter like the present one, that such a causal labour who is employed for a particular purpose for a particular time should be covered by the Scheme or not. Therefore, certain parameters should be laid down as to what should be the criteria to treat a particular employee as a casual labour/employee so as to remove any confusion either in the mind of the employer or the authorities implementing the provisions of the Act of 1952. But we leave it to the Central Government to clarify this position. However, till it is clarified, if any grievance arises then the parties can approach the Central Government under Section 19A of the Act and the Central Government shall determine the issue as to whether in the given case the employee was a casual or regular employee to which the Scheme shall cover.

14. In the result, all these writ petitions are disposed of accordingly in the light of the observations made above.