The Regional Provident Fund Commissioner, Bombay v. Shree Krishna Metal Manufacturing Co., Bhandara

Construction-Rules of Grammer-Oontext-Oomposite factory-Different industries~Whether "factory'' -Determinative industry, which is-Employees' Provident Funds Act, 1952 (19 ~' 1952), ss. 1(3)(a), (2)(g), Schedule I.

The respondent· company in the first appeal carried on the business of manufac.turing brass, copper and 'kasa' circular sheets for manufacrnring utensils therefrom, milling paddy, a fiour mill and a saw mill in the same compound, it had a rolling mill for the first item of its business and bad other mills for the other for each of which it employed different set of workmen, but there were common clerks and other employees for the entire business. When the Employees Provi· dent Funds Act came in to force the company was required to comply with its terms. It challenged the applicability of the Act to it successfully by way of a writ petition before the High Court of Bombay at Nagpur.

The respondent in the second appeal were mills which manufactured Hydrogenated vegetable oil. They also manu· factured tin containers for marketing and storing and its product in a separate establishment in which were employed 0 nly 31 workmen as against 211 employed for the manufac· ture of oil. The mills were also asked to comply with the Act, but contested the applicability of the Act to their industry which was manufacture of oil and not tin containers. They also successfully challenged the order of the appellant against them by a writ petition before the High Court of Bombay, Nagpur Bench. In both the appeals it was contended that each of the respondents was a 'factory' within the meaning ofs.1(3)(a) of the Act and that the High Court was in error in construing it otherwise.

Held, that the fact that 1he Act was beneficicnt piece of legislation aimed at p~omoting the welfare of the emp~• must be borne in miad in construing it and that there was no warrant in the language or context to read into or imply into s.1(3)(a) the sense of exclusive engagement in the 3chedule

industry and that composite factories wrre well within the 1neaning of 'factory' \vhich \Vas comprehensively dtfined by ·rht u,11iDflol s.2(g) and later made clearer hy the amrndment by which Procid< nl Fund Commissio11tf, "establishn1ents" \\·ere included \\·ithin the meaning of

~01116'!1' 1factory '.

v.

Shire K,iJJmo MtloJ llcltl, f'11rthrr, that in s.1(3)(a) the qualilication •in which MormftUluring Cr., fifty or rnorc persons arc ernploycd' though lt inunediatcly

lllundora followed the words •industry' specified Schedule I, properly

applied to 'factory' which proceeded the latter words and that the applicability of the ordinary rules of grammer to a section is to be detennind by the context and by reference to other relative provisions of the Act.

Hr,ld, further, that the expression 'engaged in any industry sptcificd in Sch.I' n1eans priinarily or tnainly engaged in any industry a.s contrasted ,vith incidentally and in that ~ense minor or sub:)i<liary activities for the purpose of feeding the main industry would 11ot detenuinc the character of the industry \vith reference to the Schedule. \Vhcn t\\·o cons-tructions arc possible each of \vhich leads to some anomolies that which is on the \Yholc consistent \vith comtnon sense and the current understanding of the expression used should be preferred.

·Held, also that the respondent in the fint appeal was commercially engaged in a Scheduled industry among others and the Act was applicable to it; further held that the respon-dent in the second appeal was mainly engaged in an industry not included in the Schedule but was engaged incidentally and only for the feeding that industry in manufacturing containers and hence did not co1nc \vithin the Act.

CIVIL APPELLATE J UUIBDICTIO!'l : Civil Appeals Nos. 361 and 387 of 1959.

Appeals from the judgment and ordor dated March 19•i7, of the Bombay High Court at :N'agpur in Misc. Petn. Nos. 282 and 335 of 1955.

B. Sen and P. D .• 'ltenan. for tho appellants. I. N. Shroff, for the respondent (in C. A. No. 361/59).

A. V. V i8wanatlu1 Sa11tri and V. J. 111 erchuut, for respondent (in C. A. No: 387 of 195\l).

1962. March 14. The Judgment of the Court 1961 was delivered by The &gisnal Provident FUnd GAJENDRAGADKAR, J.-These two appeals ·Bombay ... have been heard together ·because they raise a Shree Kr;sh'na Melot common question of construction of section 1(3)(a) ManuJacluriat Co,, of the Employee's Provident Funds Act, 1952 (No.19 Bhandor• ofl952) (hereinafter called the Act). The Regional Gajendragadk.or J Provident Fund Commissioner, Bombay, is the appellant in both the appeals, whereas Shree Krishna Metal Manufacturing Co., and Oudh Sugar Mills Ltd. are the respondents respectively. Shree Krishna Metal Mfg. Co. is a partnership firm which is registered under the Indian Partnership Act. Its business consists of (I) manufacturing brass, copper and 'kasa' circular sheets and the preparation of utensils therefrom; (2) milling paddy, (3) a flour mill and (4) a saw mill. The aforesaid four works are situated in the same compound. For the manufacture of metal cir-cular sheets, the company has a rolling ma.chine.

In order to carry on other works, a separate rice mill, flour mill and saw mill have been installed by the Co. The Company's case is that it em-ploys different workers in each section of its .ac-tivities and these workmen are engaged either on a permanent or on a temporary basis. Some workers, such as clerks and watchmen are common to the four sections of the Co.'s works. After the· Act came into force, the Co. was required to comply with its provisions. The Co. protested and urged that it was not a factory under s. 1(3)(a) of the Act and so, it could not be called upon to comply with its provisions. The Regional Pro-vident Fund Commr., however, took a contrary view. He held that the Co. fell within the mean-ing of the word ''factory" as defined under s.1(3)(a) and so, be threatened to use coercive processes to compel the Co. to comply with its requisitions issued under the relevant provisions 'of the act.

1961 At that stage, thc> Co. moved the High Court of 7-,., Bombay at Nagpur by a writ petition under

Rtti~nal Art. 2'1li of the Constitution and it prayed that an rrovitltnJ J•'und CcmmisJiorier, appropriate writ should bu isAued re8training tho

Bomba.~ Commissioner from enforcing the relevant pro-

v.

Shrte Kn"sMa fllttal visions of the Act against it.. This writ petition Jfanufocbdiflg Co., has been allowed and an appropriatt! writ has been

J;handara

issue.d as prayed for by the Co. It. is against this order that the Regional Commissioner has comll to this Court with '·a cc>rtificate granted by tho High Court. For convenience, the Regional Provident Fund Commissioner would hereafter be referred a.~ the appellant and the i:-hreo Krishna l\Ictal Manufacturing Co. would be called the Company.

The Oudh Sugar lllilb Ltd. which is respon-dent in C.A. No. 387 of i\Jii\l, is a public limited company registered under the Indian Companies Act. It carries on the business of manufacturing hydrogenated vegetable oil named "Vanasada" and its by-products, such as soap, ·oil.cakes, etc. This business is carried on at Akola. under the name and style of 'Berar Oil Industries'. The Mills commenced manufacturing its products on the 11th October, 19~8. It also manufactures and .Markets vegetable oil after completing all the pro-cesses at Akola. The oil is then tinned in tin containers of certain sizes. The said tin containers a.re fabricated by the mills in its own precincts of the oil factory. These tin containers a.re used only for the purpose of packing vegetable oil and for no other. They are not sold in the market nor aro tho customers of oil chargerl ·separate prico for the tins. The \\ ork of fabricating these tiaH began on the 13th October, HHS. In this section of the Works only 31 workmen are engaged, while in the Mills 1·roper 211 workers \\ere working on tLc ma11ufac1u1;e of vii a.1.d ita l .1 ·f,J c LUds c,J, tJ,c Jst of November, 1952. ·

The Central Government framed a scheme 196S under 5 of the Act and this scheme came into force partly on 2.9.1952 and partly on 6.10.1952. Under The RezionaZ Provident Fund this scheme, an employer is required to contribute CommitJinner, 6-1/4% of the total wage bill every year as his con-Bomba7 •• tribution towards the Fund and 3% as the adminis-Shree Krishna Meta/, trative charges on the total contribution of the 11 anufactraint Co., Bh1ntlara -- employer and his employees. '

On the 8th of August, 1955, the Regional Gojendragodkor J. Commissioner called upon the Mills to deposit its contribution and incidental charges as required by the scheme. The amount thus required to be deposited was of the order of Rs. 34,000/-. This deposit is required on the basis that the whole of the factory run by the Mills is a factory under s. 1(3)(a). The Mills declined to make the deposit on the ground that it was not a factory to which the Act applied. The Regional Commr. then threatened to take· proceedings against the Mills for the recovery of the said amount under section 8 of the Act. At that stage, the Mill moved the High Court of Bombay at Nagpur by a writ peti-tion and its writ petition has been allowed by the High Court. In the result, a direction has been issued restraining the Regional Commissioner from enforcing the provisions of the Act against the Mills. It is against this order that the Regional Commr. has come to this Court with a certificate granted by the High Court. For the sake of con-venience, the Regional Commissioner will hereafter be called the appellant, whereas the Oudh Sugar Mills Ltd. will be described as the Mills.

The appellant contends that the High Court was in error in coming to the conclusions that the company and the Mills did.not constitute a factory as defined by s. 1(3}(a) of the Act. Section ,1 (3) at the relevant period read thus:

"Subject to the provisions contained in section 16, it (i.e., the Act) applies in the first 1962 instance to all factories engaged in any indus-rll t'•iarcal try specified in Schedule I in which fifty or eni'Fzu:rl more pcrRons are employed, but tho Central iJJions1, Government may, after giving not less than nnhay v. two months' notice of its intention tto to do, irhna Mttal by notification in the Ollicial Gazett-0, apply Oc1uri111 Co. , •ndara the provisions of thiH Act to all factories emp-loying such number of persons less than fifty 1aga,!ar J. as may be specified in tho notification and engaged in any such industry."

As a result of the amendment made in 19ii6, section 1(3) has become 1(3)(a) and so, it is referred to as such.

Before construing thiR clause, it may be rele-vant to remember that tho Aot was passed to pro-vide for the institution of provident funds for employees in factories and other establishments. The object of the Act, broadly staged, is to bring into exist-enco a scheme to bo called "Tht' Emplo-j ees' Provident, Funds Scheme" for the establish-ment of provident funds under the Act for emplo-yees to whom its provisions apply. This object is specified by s. 5 of the Act. Section 6 provides for the contributions to be made by the employers and s. 9 recognises the Fund constituted under the Act for the purpose of income-tax. Section 10 affords protection against attachment in rnspect of the amount standing to the credit of any member in the Fund and s.11 prescribes for priority of payment of contributious over other debts. In other words, the provisions of tho Act constitut.. a welfare mea-sure intended for the benefit of the workmen to whom the Act applies, and thiR beneficent purpose cf thu Act has to be borne in mind in construing the relevant clause with which we are concerned in the present appeals., The first question which calls for our dcoiRion is whether s. l(:i)(a) excludes oomposite factories from its scope. It has been urged before us on be-19611 half of the respondents that composite factories are The Reg not intended to be covered by s. 1 (3 )(a). It is only Provident factories which are exclusively engaged in any Commiss, Bomb industry specified in Schedule I to which the Act v. applies, provided, of course, they satisfy the Shree Krishn M anuftJClut other test that there are 50 or more persons Bhan employed in them. This argument is based on the fact that when the Act was originally passed in March, 1913~, the Legislature had provided for only six industries in Schedule I. The intention of the Legislature was to extend the benefits of the Act to the workmen industry-wise step by step. The Legislature wa.s conscious that the relevant provi · sions 'of the Act imposed a burden on the employer and so, it took the precaution of confining the operation of tbe Act only to six important indus-tries specified in Schedule I. ·Section l (3) (a) no doubt confers power on the Central Government to extend the provisions of the Act to other factories by issuing a notifications, as contemplated by it ;

and so, whenever the Central Government comes to the conclusion that the benefits of the Act shC>uld be extended to workmen engaged in additional categories of factories, it could exercise its power in that behalf and by issuing ·a notification, bring within the scope of the Act such factories. But this has to be done factory-wise in the sense that it has to be done by reference to the factories engaged in industdes included in Schedule I and that shows that. it is only factories exclusively engaged in the said industries that are included within the purview of s. J (3) (a).

In our opinion, this argument is not welt.

founded. The expression "all factories engaged in any industry specified in Schedule I" does not lend itseJf to the construction that it is confined to factories exclusively engaged in any industry speci-fied in Schedule l. What exactly is meant by the

822 SUPI\.EME COURT REPORTS [1962] SUPP.

196• clause, we will have occasion to deal with later on.

For the present, it would be enough to sa.y tha.t Tlk Regional when the Legislature has described factories as fac-Prot•ldtnt Fund Com111i1sio11er, tories engaged in a.ny industry, it did not intend

Bom6c1 •• that the said factories should be exclusively engaged Slv11 Kris/ono .\/tlal in the indusir·y specified in Sohedule I. The cons-M.nu/octu1i11g Co., truction for which the contend requires

Bhaiara re~pondents

that we should add tho word "eil:dusively'' in tho clauJe and that clearly would not bo permissible. The definition of th" word "factory" prescri-bed ny s. ~(g) of the Act shows that a "factory" means any premises. including the precincts there-of, 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. Thus, t.he word "factory" used ins. 1(3)(a) has a comprehensive meaning and it includes premis~s in which any manufacturing process is being c.~rried on a.s described in the definition. This definition of the wore! "factory" shows that the factory engaged in any industry specified in Sche-dule I •::mnot necnssarily mean a factory exclusively engaged in the pnrticular industry specified in the said Schedule.

Besides, s.l(:l)(a), as it has been amended in 19;36, now referA to cvnry establishment which is a factory engaged in any industry specified in Schedule I a.ncl the introduction of the word "esta-blishment" clearly shows that it may consis\ of different factories clealing with different. industries and yet considered as one establishment, it may fall under section l(:l)(a), provided the other re-quirements of the said section a.re satisfied. Section 2A which has been added in the Act by the Amen-ding Act 46 of 1961) makes it clear that an establish-ment mav consist of rlitTnrrmt departmcnt8 or 111ay h:we different branches, whether sit.uate in the same place or in cliffcrnnt placc8, and yet all such departments or hrancjies H!1all he treated as parts I of the same establishment. Therefore, the concept J9iM

of establishment being of such a comprehensive character, the insertion of the word "establishment" Thi Regional Provident Fund in s.l(3)(a) by the Amending Act of 1956 helps to Oommis;ioner, negative the argument that the factory therein con-Bomba.,v v. templated cannot be a composite factory. Slir1e_K1isJ.na Met11. M aun.fac'ttring c,.1 Besides, the explanation to Schedule I which Bhantf14ra has been added by Act 37 of l953 clearly shows Gajeridragadkar J, that one of the industries originally included in Schedule Tin 1952 definitely ·suggests the idea of a composite factory and wou Id, thus, assist the inter· pretation of the word "factory" as including a composite factory under s.l(3)(a). The industry in question is electrical, mechanical or general engi-neering products and the explanation of this industry shows that it includes 25 different items, and so any factory carrying on the work of produ-cing one or more of these items would. not be exclu· sively engaged in producing one or the othf'f of those items and would be in the nature of a compo-site factory and yet it would definitely fall under s.1(3)(a). ThereforP, in our opinion, the argument that a composite factory carrying on different indus-trial opera1 ions is outside the purview of s.1 (3)( a) cannot be accepted. •

The next question which falls to be considered is whether the requirement that the workmen employed should be 50 or more, governs tho w:ird "Industry" or the word "factor" is under s. l (3)(a).

T]).e respondents' contention is that tbis rmmcrica]

test must be satisfied by t.he industry and not by the factory. In other worcfa, even if a composite factory is included in s.1(3)(a), before the provisions of the Act can be applied to it. it must be shown that 50 or more persons are employed in that unit of the factory which iR ~ng•tged in the industry specified in :Schcdlllo I. If this is the true and correct position, neither the Mills nor the Company would fall within the mischief of thP Act. The

l!ldZ argumont in 811(lport of thiH construction jg that the J Tii1 R,giufUJI pronoun "which" must under the ordinary rules of ProtJid,nt Pim I grammar qualify the noun immediately preceding Commissionrr, it an<l that it to the word "[ndustrv" rather

v. than to the word "factories". · S"'• Kriolno .If t14/ JI ~actruing Co., We are not indincd to accept this construc-

Bh111dar12.

tion. The ordinary rule of grammar on which this O~tridr•fad.l:ar J. construction is based r.annot be treated as an inva-

riable rule which must alwnys nnd in every case be accepted without regard to thn context. If the contoxt definitely suggests that the relevant rule of grammar is ina.pplica.ble, then the requirement of the context must prevail over the rule of i!rammar. As the provision stands, the word •factories' is quali-fied by two clauAes. The firAt n.<ljoctival clause is 'engaged in any industry specified in Schedule I' and the second clause is "in which 50 or more per-sons a.re employed". In other words, in order that the factories should fall within th•• Hcopu of the pro-vision, they must satisfy two tests : they must be engaged in any inrlustry sµecifit•rl in Schcclule I and they must have employed ;)0 nr more persons. The first ;Lrljectival clauij<: is in thn natme of a parenthe-tic11.l ehiusc am! so the clause b"ginning with t.Jw worrls "in which" must neceHsarily qualify the word "factories'' and not tho word "industry''. Therefore, in our opinion, the requir<>ment ns to the prescribed number qualifies the word "factories" and does not qualify the word "industry" ; that means the ques-tion to ask is : does the factory employ 50 or more persons ? The quest.ion is not : does the industry employ .~O or more persons ?

This conclusion is Rtrengthoned by the. provi-sion contained in the latter part of s. \(:{)(,i). This latter clause empowers· the CPntral Government .to brin" the within the purview of the A<'t other· factories in manner specified by it, .While referring to the factories which may thns be brought: within the purview of the Act, t.h? clause provides that these factories must be such as employ such number of 1962 persons less than fifty as may be specified in the The Regional notification and they must be engaged in any such Provident li'und industry. In other words, this latter clause makes Commissioner, B1mbay it clear that it is the factories which have to satiafy v. two tests-(i} that the number of their employees Shree Krishna Met al Manufacturing Co., should not be less than 50 and (ii) that they must Bhandara be engaged in any such industry as is specified in Gajendtagadkar J. Schedule I,

This position has been placed beyond all doubt by the amended clause as It now stands as a proviso to s. 1(3)(a) and (b) after the amendment of 1956. This proviso reads that the Central Govern-ment, may, after giving not less than two months'

notice of its intention so to do, by notification in the Official Gazette, apply the pro~isions of the Act to any establishment employing such number of persons less than fifty as may be specified in the notification. This proviso makes it absolutely clear that the requirement as to the number of the emp-loyees applies to the establishment and not to the industry. We may incidentally add that the require-ment of fifty has now been reduced to twenty by the Amending Act 46 of 1960 .

. There is yet another provision in the Act which supports the same conclusion. Section l 9A provides, inter alia, that if any difficulty arises in giving effect to the provisions of the Act, and in particular, if any doubt arises as to whether 50 or more persons are employed in a factory, the Central Government may. by order, make such provision or give such direction, not inconsistent with the provi-sions of the Act, as appears to it to be necessary or expedient for the removal of the doubt or difficulty;

and the order of the Central Government, in such cases, Ahall be final. This clause has been sub-sequently amended, but for our present purpose those amendments do not matter. The point about the provision is that the Central Qovernnient h"s

1962 been given powur to resolvo a doubt as to whether Tlie fifty or more persons are employed in a factory or

Rezionol ProvU/mt Fund in an establishment and that shows that the require- <.A~ssio11e1, ment as to tho number of employHes governs the

B1mbay

v. factory or the establishment but not the industry. Shr11 Krish11~ Metal jfGIUl.fatbtrinf! Co., That takfs us to the question as to the mean-

Blumdara ing of the expression "engaged in any industry

specified in Schedule I", and this question no don bt, presents some difficulty. We have already reject<'d the argument that the composite factory is not included in s. 1(3Xa). That means that the clause "engaged in any industry" does not mean "exclusi· vely engaged in any industry". If that is so, what exactly is the meaning and significance of thig clause ? Two views are possible. It may be said that even if a factory is only partiall.v engaged in any industry specified in Schedule I, it would satisfy the test however small or insignificant may be the <>X-tent of its operation in the said industry. On this construction, it would follow that if a factory is engaged in several industrial operation one of ,,:hirh relates to an industry specified in Schedule I, the factory would fall under s. 1(3)(a) even though its relevant a<:tivity in the specified industry may be of a minor, incidental or subsidiary character. The other construction would be that tho oxprossion "engaged in any industry" means "primarily or mainly engagod in any inclustry". On this construe· tion, if a factory is engaged in several industrial activities one of which relateH to tho industry ~pt~l'i· fied in Schedule I, it would he rieccs8ary to enquire whether the said specified activity is subsidiary or minor; if it is subsidiary, incidental or minor, tho factory cannot be said to be engaged in that industry. Cases may occur where a factory is primarily or mainly engaged in other industrial activities ancl it is only for feeding one or more of such activit ics that the factory may undertake an activity in respect of the $pecified industry. But surh an undertaking is mornly for the purpose of feeding its major activity; it is subsidiary, incidental and 1962 minor. In that case, the factory cannot be said to be engaged in the industry specified in Schedule I. 'l'he Regional Provid111t Fund Both constructions are possible and each one of Commissioner, them presents some 'lnomalies. On the first Bombay v. construction, it would follow that even if half a Shree Krishna ·Metal dozen employees arc engaged by the factory in Manufacturing Co ·BhandMa regard to.its activity in the industry specified in Schedule I, the provisions of the Act would G 'ljendragat!kar J, apply to all the workmen engaged in the whole of the factory because the factory would be deemed to have satisfied the test that it is engaged in the industry specified in Schedule I and that, no doubt, looks anomalous. On the other hand, if the second construction is accepted, though more then 50 persons may be employed in the incidental and subsidiary activity relating to an industry specified in Schedule I, the provisions of the Act will not apply to such workmen because the factory, as a whole, does not satisfy the test that it is engaged in the said industry and that also is anomalous.

It is true that in dealing with the construction of a clause which is capable of two reasonably possible constructions, it is not easy to make a choice, particularly when bot.h constructions seem to lead to some anomalies. On the whole, however, we are inclined to take the view that the clause "engaged in any ·industry specified in Schedule I''

should be interpreted to mean "mainly engaged in any indn>tr,y specified in Schedule I". If a fantory is engaged in two industrial activities one of which is itH primary, principal or dominant activity and the other is a purely subsidiary, incidental, minor or feeding activity, then it is the primary or the dominant activity which should determine the character of the factory under s. I (3) (a). This view does not purport to add any word to the section; it merely interprets the relevant expression ••engaged in any industry specified in Schedule I",

828 SUPRE~IE COGl~T REPORTS [1962] SUPP.

1962 \Vhen it is said that a person is engaged in any ·r business, it usually means he is engaged mainly or ht Rtf]ionol . principally in that business; and the same wo:ilrl be Prtbidtnt Fund Commissioner, tho position when the relevant clause refers to an

Bomb~y establishment engaged in the specified industry.

v.

Shrtt Krishna .\I eta/ That is the common-sense view which is consistent Afan11faclurint Co., with tho current and accepted denotation of tho ' · llhandar• words "engaged in".

fJajtnriragadkf1r J.

One of the tests which can sometimes be applied is whothcr the product of the incidt•ntal activity is intended for the market or exclusively for use by the factory in its other department only. If the answ"'r to this question is that the said product is sent out in the market for sale, then the activity in question cannot he treated as incidental. In such a case, it may be said that thu factory is engaged in both thn activities and as such, it is engaged in the industry specified in Schedule I. But tho test of sending the product in the market cannot ho treated as decisive or even very signi-ficant ht>cnuse tho definition of tho word "manu-facture'' given ins. 2(i)(a) shows that a commndity may be produced by the fa,.tory as much for sale, transport, delivery or disposal aH for its own use. Therefore, the fact that a commodity is pro<luce<I only for th" use of the factory in i~s other depart-ment may not necessarily show that tho activity which IeadR to the production of the said commodity is not the main activity . of the factory. .

If a factory iR engaged simultaneously in different industrial artivities and one of these is in relat.ion to an industry specified in Schedule I. then it can be said that the factory is engnl!'ed in the industry specified in Schedule f. Th" fact that. the factory is engaged in other inrhrntrial activities will not ncr,cssnrily tulw it out of the purview of s. I (3)(a). The broad test which may safely he appliecl in dealing with this question is: is the

'actory engaged in the industry specified in 1961 -dchedule I from a business point of viewY; and the T/11: Regional answer to this question would generally give a Providtnt l<Und satisfactory solution to the problem posed by Commissioner, 8omba1J •• s. 1(3)(a). Whether or not. a factory is engaged in any industry specified in Schedule I would, thus, Sh,.ee Krishna Metal Monufadurinrr Co., be a question of fact to be determined in the facts Bhondara and circumstances of each qase. That appearn to Gajendraga4kar J. be the view taken by B11lakrishna Ayyar J. in the Madras Pencil Factory, by its Proprietors v .. Perurnal Clietty & Sons, by its partner V. Anantliakrislina .Clietty ' v. Tlie Regional Provident Fund Gornrnissioner, ( 1) and with that view we are in general agreement.

What remains now is to consider whether the High Court was right in holding that the com-pany and the Mills are outside the purview of s.1(3)ta). As we have already seen, company carries on four different kinds of industrial activi-ties, one ·of which ·is the manufacturing of brass copper and 'kasa' circular sheets and the prepara· tion of utensils thuefrom. For the manufacture of metal circular sheets, the Co. has a rolling machine. It is common ground that this work would fall within Schedule I of the Act and so, if it can be held that th.e Co. is a factory engaged in the industry represented by this work, the first test is satisfied. As we have already observed this Co.

carries on four diJferent kinds of activities and it is impossible to hold that the activity in relation to the industry which falls in Schedule I is either minor, subsidiary or incidental to -the other acti-vities. This activity is as much the work of the Co. as the other activities are and so, the Co. must be hold to be a factory under s.1(3)(a) so far as the first test is concerned. In regard to the test of the number of employees elilgaged in the factory it appears to be the Co.'s case that at the relevant time, the · number of its total employees in all the

1962 four activities did not consistently exceed 50; but

that it is a point on which the High Court has ex-The Ileyion~l pressed no opinion, and rightl.v, because it is a f'ro•-'idtnf .. Fund

Bumboy disputed question of fact which cannot be tried

in writ proceedings. The appellant's case is that Slirte /(rislma ft[tlal .'t-101.ufacluring Co., the total number of cmploy<!CS engaged by the

lJham/ar• Co. excoeded 50 at the relevant time and it is on