JUDGMENT
Barin Ghosh, J.
1. Section 2(i) of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as ‘the Act’) defines “Industry” as any industry specified in Schedule I, and includes any other industry added to the Schedule by notification under Section 4 of the Act. Section 4 of the Act specifically authorises the Central Government to bring in Schedule I any other industry which has not been previously included in Schedule I to the Act.
2. The Act applies to, amongst others, every establishment, which is a factory engaged in any industry specified in Schedule I to the Act and in which 20 or more persons are employed. Therefore, a factory belonging to any industry specified in Schedule I to the Act engaging 20 or more persons is covered by the Act. If the industry is not specified in Schedule I, even if the factory of such industry is engaging more than 20 persons, the factory is not covered by the Act. It is, however, open to the Central Government to bring in any industry, which is not specified in Schedule I, within the purview of the Act, by issuing a notification in terms of the power conferred upon it by Section 4 of the Act. By exercising the power conferred upon the Central Government by Section 4 of the Act, on August 3, 1963, the aerated water industry, that is to say, any industry engaged in the manufacture of aerated water, soft drinks or carborated water, was brought in Schedule I to the Act and, accordingly, any factory associated with aerated water industry engaging more than 20 persons on and from August 23, 1963 came to be covered by the provisions of the Act.
3. The petitioner, who was established admittedly in 1998 and started manufacturing activities from the month of August, 1998, is engaged in the manufacture of packaged drinking water, but selling its product holding the same out as mineral water.
4. On May 6, 1999, an inspection was carried out at the factory of the petitioner at the behest of the Provident Fund Authority. The inspection report suggested that the petitioner was found to have engaged 15 persons. On May 27, 1999, i.e. about 22 days after the first inspection, yet another inspection was carried out by a squad belonging to the Provident Fund Authority, who also submitted its report. In the report, it was suggested that the petitioner has engaged 22 persons. Both these reports were signed by the person incharge of the manufacturing activities of the petitioner. In none of the reports, particulars of the persons engaged had been furnished. It appears that when the report of the squad was placed before the Assistant Commissioner, he felt that the basis of assertation pertaining to the number of employees is missing. He also opined that the squad report does not disclose from which date the employees strength stood to 22. The squad was, accordingly, asked to substantiate the same.
5. It appears that on January 9, 2002, the Assistant Commissioner, Smt. Vaishali Dayal passed an order to the effect that the establishment has already submitted enquiry report and, therefore, code number be issued to the establishment. It appears that on May 29, 2002 it was adjusted under Section 7-A of the Act that the Act applies to the petitioner. Petitioner filed a review against the said order, which having been rejected, the petitioner filed a writ petition and the Writ Court remitted the petitioner to the Tribunal. In the meantime, on December 2, 2002 an order was passed adjudicating the liability of the petitioner also in terms of Section 7-A of the Act. The petitioner then went before the Tribunal and contended that the Act does not apply and quantification of liability, as made, is also incorrect. The Tribunal has rejected both the contentions of the writ petitioner and hence this writ petition.
6. It was the contention of the writ petitioner before the authority concerned, which has been reiterated before this Court in the present writ petition, that the petitioner did not engage at any point of time 20 workmen and, in any event, the petitioner is not an industry specified in Schedule I to the Act and, accordingly, the Act has no application to it. It was the contention of the authorities concerned, which has been reiterated by them in the instant writ petition, that the petitioner under the signature of its authorised agent acknowledged engagement of more than 20 workmen at the time when the last inspection was carried out and that, since the petitioner is engaged in manufacture of mineral water, it is an industry within the meaning of industry manufacturing aerated water as included in Schedule I to the Act.
7. It was also contended by the petitioner before the authority concerned, which has been repeated in the instant writ petition, that the Assistant Commissioner, Smt. Vaishali Dayal, by a letter requested the petitioner to appoint one Sri Alok Dayal and inasmuch as the petitioner did not appoint Sri Alok Dayal, before any adjudication could be made under Section 7-A of the Act that the Act applies to the petitioner, she passed an order to issue code number to the petitioner; accordingly the entire proceeding before the respondent authority is vitiated inasmuch as code number is issued only when it is adjudged that the Act applies to the industry.
8. I would deal with the last point first. It is true that Vaishali Dayal passed an order on January 9, 2002 to issue code number to the petitioner. It may also be true that Vaishali Dayal made a request to the petitioner to give an appointment to Alok Dayal and the petitioner refused to accede to such request. However, neither the Act, nor the Rules show that the code number can only be issued after it is adjudicated that the Act applies to the industry concerned. If, despite having had issued a code number, it is held that the Act does not apply to the industry concerned, the mere issuance of code number will not encompass the industry with the obligations under the Act. On the other hand, if on adjudication, it is found that the Act applies to the industry, the issuance of a code number before such adjudication gives an opportunity to the industry to make the contributions it is required to make right from the time the code number is issued.
9. Furthermore, Smt. Vaishali Dayal only directed issuance of a code number but it is nobody’s case that she was a member of the squad, who inspected the manufacturing unit of the petitioner on May 27, 1999. In the instant case, the entire thing centres around the inspection made on May 27, 1999. A case for applying the Act to the petitioner was built on the basis of the said inspection. I am, therefore, not impressed with the case of malice on facts as made out by the petitioner.
10. It is true that the inspection report dated May 27, 1999 does not give particulars of the employees men found working. It is also true that the Act is a beneficial legislation made for the benefit of the workmen working in the scheduled industries. The Act imposes an obligation upon the employer industry to collect timely the worker’s contribution and to make over the same alongwith its part of the contribution to the provident fund authority, and the provident fund authority, as trustee of such fund, keeps the same for the benefit of the workmen for whose benefit the same has been deposited. Accordingly, it is a must for the provident fund authority to know who are these workmen and, as such, in the report itself it is required to give particulars of the workmen then working. In the instant case, at the time when the inspection was carried out on May 27, 1999, it was mentioned in the report that 22 persons were found working under the petitioner; admittedly, however, without any particulars of such workmen. The fact that 22 workmen were working was acknowledged in writing by the petitioner. It is not the contention of the petitioner, nor any attempt has been made by the petitioner to establish that recording of 22 workmen working as on the date of the inspection was vitiated by non est factum. It was contended subsequently that it was a mistake. The fact remains that on May 6, 1999, an inspection was carried out which as followed by an inspection carried out on May 27, 1999. In the first inspection, it was recorded that 15 persons have been engaged, when on May 27, 1999, if 15 had been made 25, it could be said that by mistake 15 has been denoted as 25, and the person signing on behalf of the petitioner overlooked the same. The number of persons found working as on May 27, 1999 was recorded as 22. Any responsible officer, working on behalf of the petitioner, could by looking into the report hold out that 22 is a mistake then and there, if that was in fact a mistake. The logical conclusion would, therefore, be that on May 27, 1999 altogether 22 workmen were found working with the petitioner. Inasmuch as a responsible officer of the petitioner signed the said inspection report, it was expected, as is expected in normal course, that the petitioner will supply appropriate particulars of those 22 workmen to the authorities concerned. Later on, by stating that the figure’ 22′ as recorded in the said report was an incorrect figure, the petitioner started the controversy, otherwise there was none. In the normal circumstances, when an inspection is carried out and there is no co-operation or representation by the management of the industry, in order to show that the report as submitted of such inspection has some credence, it is obligatory on the part of the inspector to give full particulars of the persons working in the industry, as found by him, but when there is full co-operation by the management and the management itself accepts that a certain number of persons are working in its establishment and signifies such acceptance by putting signature in a report disclosing the number of workmen found working at a given point of time, the inspector in the normal circumstances reasonably expects that the management will supply the full particulars of those accepted persons. In those circumstances, I am of the view that the petitioner industry has not been able to make out a case that at the time of inspection on May 29, 2002, 22 workmen were not working with the petitioner.
11. A look at the Act would amply demonstrate that the Act did not want to bring within its ambit all industries established in India. It wanted to bring within its ambit only those industries which have been listed in Schedule-1 to the Act. As aforesaid, Section 4 of the Act has authorised the Central Government to bring in any other industry within the ambit of the Act by including such industry in Schedule-I to the Act by a notification. The logical conclusion, therefore, would be that an industry which has not been mentioned in Schedule-I to the Act, even if such industry is using in its establishment 22 workmen, such establishment will not come within the purview of the said Act.
12. The petitioner held out in label of its product that the same is mineral water and accordingly represented that it is manufacturing mineral water. Mineral water manufacturing industry is not one of the industries mentioned in Schedule-I to the Act. The authorities concerned have proceeded on the basis that since petitioner is manufacturing mineral water, it is manufacturing aerated water and accordingly is part of aerated water industry and, therefore, the Act applies to it.
13. I wanted the facts to be made clear and accordingly looked into the specifications prescribed by the Bureau of Indian Standards pertaining to production of mineral water as well as packaged drinking water. I found that the standards as prescribed, while directs removal of impurities from water before packaging the same for the purpose of selling as packaged drinking water, it directs incorporation of certain inherent ingredients of water after removal of impurities for manufacture of mineral water so as to improve its quality.
14. The next stage that was required to be done in this case was to ascertain whether by following the process of manufacture, as depicted in a flow chart submitted by the petitioner, was the petitioner manufacturing packaged drinking water or not. The matter was, therefore, referred to the Bureau of Indian Standards, which reported by submitting a report that by following the said flow chart, the thing that is manufactured is packaged drinking water. In, such view of the matter, it was required to ascertain whether the petitioner was, in fact, following the said flow chart or not. Again a request was made to the Bureau of Indian Standards to inspect the manufacturing facilities of the petitioner and ascertain whether it is following the said flow chart and whether it is manufacturing packaged drinking water or not. In the second report submitted by the Bureau of Indian Standards, it has contended that the petitioner is following the said flow chart and is manufacturing packaged drinking water.
15. Having regard to the fact that the difference in between packaged drinking water and mineral water is that while in packaged drinking water impurities are removed, in the case of mineral water, after removal of impurities, its quality is improved by incorporating vital basic ingredients of water. Therefore, while the petitioner was manufacturing and selling packaged drinking water, i. e. water without impurity, by holding out to the people that it is manufacturing and selling mineral water, i. e. improved quality of water, it took resort to puffing.
16. I have considered the dictionary meaning of the word “aerated” and have also considered the technical meaning of the word “aerated”. Those meanings suggest that “aerated” means a thing where air has been induced. The moment air is induced in water, it becomes aerated water. The Legislature, however, brought in within the meaning of “aerated water”, i.e. water induced with air, not only such water, but also soft drinks and carbonated water. Soft drinks are those drinks which are liquid in form and sweetened. When the words “soft drinks” are used in conjunction of the words “aerated water”, the words “soft drinks” will denote sweetened water. Carbonated water is such water where gas has been induced. Therefore, by use of the choice of words aerated water, soft drinks and carbonated water, the Legislature, it appears to me, intended to earmark such industries which in course of manufacturing their products induce a foreign substance into water. Therefore, the moment the manufacturer manufactures a product, which is water with something in addition to water, will come within the meaning of the industry engaged in the manufacture of aerated water, soft drinks or carbonated water. While improving the quality of water, some minerals may be added to water, after purifying the same, to make mineral water. Thus, it may be possible that mineral water comes within the meaning of the words used by the Legislature, i.e. aerated water, soft drinks or carbonated water. However, when the industry is engaged in manufacture of pure water, i.e. engaged in removing impurities in water, such an industry does not come within the meaning of manufacture of aerated water, soft drinks or carbonated water and accordingly such an industry is not listed in Schedule-I to the Act and, therefore, the said Act has no application to the industry of the petitioner.
17. For those reasons, the writ petition is allowed. The order passed under Section 7-A of the Act holding out that the Act applies to the petitioner industry as well as the adjudication of the liability under Section 7-A of the Act are quashed.