Dua, J. - (1.) The appellant in this appeal by certificate granted by the Andhra Pradesh High Court on February 25, 1965 under Article 133 (1) (b) of the Constitution is the Regional Provident Fund Commissioner, Andhra Pradesh A large number of writ petitions by various parties were filed in the High Court praying for writs in the nature of mandamus directing the appellant to forbear from enforcing or taking other proceedings under the provisions of the Employees' Provident Funds Act, 1952 (hereinafter called the Act) and the Provident Fund Scheme, 1952 With the exception of perhaps one writ petition, all the rest, including W. P. 907 of 1963 presented by T. S. Hariharan, Proprietor, New Cochin Cafe, Ongole, respondent in this Court were dismissed. Certificates under Article 133 (1) (b) of the Constitution were secured by the appellant in almost all the cases but the present is the only appeal which now survives, all the rest having been dismissed for non prosecution.
(2.) The writ petition of the respondent was dismissed which means that the final order made by the High Court was in favour of the appellant. The only grievance raised by the appellant's learned counsel in this Court was that the High Court had in the course of its judgment expressed the view that Clauses (a) and (b) of subsection (3) of Section 1 of the Act do not cover casual labour and since this expression of opinion which he considers to be legally erroneous would be binding on the appellant in administering the Act it was necessary to have the correct legal position enunciated by this Court. According to the appellant's learned counsel the following passages in the ,judgment of the High Court clearly bring out the argument both for and against the legal position canvassed by him:- "We have next to consider whether Clauses (a) and (b) of Section 1 (3) are wide enough to cover casual labour. It is maintained by the learned Government Pleader that requirement as to the numerical strength is satisfied if twenty persons are engaged in connection with the work of an establishment even for a day or a fraction thereof. This argument is sought to be reinforced by the unreported judgment of a Division Bench of the Madras High Court in Writ Appeal No, 183 of 1962, D/- 7-11-1963. It is true that this ruling vouches the proposition advanced by the learned Government Pleader. The learned Judges there observed: 'It is admitted on behalf of the applicant that fifty people worked at least for one day in each year. This in our opinion, will be sufficient to bring the case within the purview of Section 1 (3) of the Act. The Act is an ameliorative measure extended to benefit the permanent workers of an establishment. What is necessary for those permanent workers to get the benefit is that there should be fifty workers in that factory. In our view, it would be sufficient if that condition is satisfied at least for one day.' With great respect, we are unable to subscribe to the rule stated therein. It is true that this legislative measure is an ameliorative one. All the same, it cannot be overlooked that benefits are intended to be conferred on workmen in establishments that are in a position to employ twenty or more persons. It may be incidentally mentioned here that originally, i.e., prior to the Amendment Act, 46 of 1960 the number of employees in the establishment that would be brought within the scope of Section 1(3) was fixed at fifty. We find it difficult to agree with the view that twenty or more persons can be said to be employed or that an establishment employs twenty or more persons merely because on one day or two days the services of twenty or more persons were engaged for a particular purpose. To accept this contention would be to unduly enlarge the content of the Section. To attract the applicability of Section 1(3) the number of persons should come upto minimum of twenty. The underlying idea seems to be that the establishment should have twenty persons on its muster rolls and working regularly. Could it be asserted that a factory gives employment to twenty persons merely because twenty persons are engaged by that factory on a particular day for some special job. In our opinion the answer must be in the negative. The sub-section contemplates the required number of people working continuously in the factory or other establishment in a year." The other passage occurs a little lower down in that judgment- "Section 19-A also seems to strengthen our view. A doubt as to the number of persons employed in an establishment could arise only if the employment of twenty persons in the establishment were a normal feature. A legitimate doubt cannot be said to arise if the condition as to the number is satisfied if twenty persons work in the establishment even for a day or two. It is not necessary for us to labour this point any further as we feel that the provisions of the Act are inapplicable to establishments which do not employ twenty or more persons to work therein for a period of one years. It follows that 'casual labour' falls outside the scope of Section 1(3) . The fact that the casual 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 labourers or not. On this discussion, it follows that the establishments whose employees do not come upto twenty, excluding casual labourers, do not fall within the purview of Section 1 (3) and so the provisions of the Scheme cannot be applied to them. The respondents will, therefore, examine this question in the light of these observations and decide whether the Scheme should be applied to any of these establishments excluding casual labour." The appellant's learned counsel had at one stage of his arguments stated that his client was anxious merely to steer clear of the observations made by the High Court that "the provisions of the Act are inapplicable to establishments which do not employ 20 or more persons to work therein for a period of one year." But while citing certain decided cases he did appear to canvass for the wide proposition that employment of a person for however short a period would be employment for the purpose of determing the number of persons employed as contemplated by Section 1 (3) (a) and (b) of the Act. He relied on the Bench decision of the Madras High Court reported as Messrs East India Industries (Madras) v. Regional P. F. Commissioner. (1964) 1 Lab LJ 706 (this decision was also cited in the High Court as an unreported judgment) and pressed us to uphold the reasoning adopted therein.
(3.) The question requiring our to determination is a very short one. As there is no representation on behalf of the respondent in this Court and, therefore, we do not have the benefit of the respondent's point of view we propose to confine ourselves strictly to the limited question of the scope of Clauses (a) and (b) of sub-section (3) of Section 1 and this judgment is not intended to be considered as expressing any opinion on other controversial, aspects. Before considering the relevant provisions at the Act it may be pointed out that according to the respondent's writ petition presented in the High Court in August, 1963, the New Cochin Cafe (treated as a hotel) was started in Ongole town on November 20, 1956 and the respondent usually employed only 18 or 19 persons. In 1961 there was total failure of rains in the Ongole region and that town was particularly hard hit. The respondent had to employ two or three persons on contract basis for supplying water to the hotel. Those persons were engaged from June to September 1961. The appellant has not questioned the correctness of these assertions for the purpose of this appeal. Let us now examine the relevant provisions of the Act.;