- (1.) THESE three appeals which are covered by the same order dated April 19, 1973 passed by the learned Presidency Magistrate, 8th court, Calcutta, acquitting the accused respondents on the ground that there could be no violation of the provision of the Employees Provident Funds Act, 1952 and the scheme framed there under inasmuch as Biri Factory did not come within the meaning of Tobacco industry as given in the said Act. It appears that an Inspector appointed under section 13 of the Employees Provident Funds Act, 1952, filed three separate petitions of complaint against m/s. Sri Krishna Biri Factory and Co. and the accused respondents Nos. 2 and 3 describing them as partners of the said Factory alleging there in that they have failed to pay to the statutory Provident Funds the arrears payable for the months of January, February and March 1971 as required under para 38 (1) of the scheme within the specified time. It was also alleged that they had failed to pay the statutory administration charges for the said months as required under para 38 (1) of the scheme within the specified time and also to submit statutory returns for the said months. Evidences were adduced in all the three cases which were heard together and the learned Presidency Magistrate by his impugned order found that the Employees Provident Funds Act, 1952 have had no application to Biri Industry and as such acquitted the accused persons in all the three cases under section 245 (1) of the Code of Criminal Procedure 1898. It is as against such order of acquittal the Superintendent and Legal remembrancer filed three separate appeals which would be also governed by the following order.
(2.) MR. Palit, learned Advocate, appearing for the appellants contended before me that the learned Presidency magistrate was wrong in thinking that biri Industry did not come within the meaning of Tobacco Industry as defined in the Employees Provident Funds act 1952 and that as such the learned magistrate was wrong in acquitting the accused respondents.
(3.) MR. Sur, learned Advocate, appearing for the accused respondents submitted that Biri Manufacturing Industry did not come within the meaning of Tobacco Industry as mentioned in the schedule 1 to the Employees Provident Funds Act 1952 and that as such the learned Presidency Magistrate was justified in acquitting the accused persons on the finding as made by him. Section 2 (i) of the Employees Provident Funds Act, 1952, defines "industry" as follows : Industry means any industry specified in schedule 1 and includes any other industry added to the schedule by notification under section 4. Therefore in order to be an industry within the definition as given in the employees Provident Funds Act, 1952, it must be included in schedule 1 of the said Act. Schedule 1 specifically includes cigarettes in a separate item. The tobacco industry has been mentioned separately. According to this item in schedule 1, tobacco industry, that is to say, any industry engaged in the manufacture of cigars, zarda, snuff, quivam and guraku from tobacco. It does not specifically mention manufacture of biri. Mr. Palit contended that tobacco industry as mentioned in the schedule would include the manufacture of biri and that cigars etc. had been mentioned by way of illustration only. In other words Mr. Palit contended that the said illustration was not exhaustive and manufacture of biri must come within the meaning of tobacco industry. I am unable to agree with such contention of Mr. Palit. It will be seen that tobacco industry as specifically mentioned in the schedule was inserted by a separate notification of the central Government being notification mo. G. S. R. 895, dated 1st June, 1966 with effect from 30th day of June 1966. Thus tobacco industry as specified in the schedule came to be included 5n the schedule by a separate notification after about 13 years of the Act coming into force. Even then it was not thought necessary to include manufacture of biri within the category of tobacco industry. Had it been the legislative intent to include the manufacture of biri within the category of tobacco industry that intent would have been clearly expressed by the inclusion of the manufacture of biri along with cigars, zarda and snuff etc. The very fact that the manufacture of biri was not specifically mentioned within tike category of tobacco industry as given in the schedule to the Employees provident Funds Act, 1952, goes to indicate and prove that manufacture of biri do not come within the definition of industry as given in section 2 (i) of the aforesaid Act. This being the position the learned Presidency Magistrate was justified in holding that the aforesaid Act have had no application to the manufacture of biri and in acquitting the accused respondents in all the three appeals. In the result, the appeals are dismissed. Appeals dismissed.;