JUDGMENT
G.S. Singhvi, J.
1. The petitioner has challenged the order dated 6.8,81 passed by the Regional Provident Fund Commissioner, Jaipur under section 7A of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (for short ‘the Act of 1952’).
2. The facts of this case are in very narrow compass. The petitioner has stated that it is a Company registered under the Companies Act with its registered office at Calcutta. It is doing business of Contractor. It has entered into several contracts with the Central Government as well as the State Governments for Engineering works like construction of Dams, Projects, Bridges, Tunnels, Barrage, Buildings etc. in different parts of the country. The duration of different works is different. After completion of work, the establishment at a particular place is closed. The workers are paid closure compensation and other service benefits.
3. On the basis of a contract which the Company had entered into with the Government of Rajasthan, it undertook construction of Jawahar Sagar Dam near Kota. The civil engineering work of Jawahar Sagar: Dam had been completed lone back. The company terminated services of all employees excepting a few Chowkidars who had been retained to look after the property of the Company, during the pendency of the claims with the Government of Rajasthan. For carrying out civil engineering works at Jawahar Sagar Dam, the petitioner company had to maintain a small repair section for the purpose of carrying out repairs, overhauling and maintenance etc. of the machinery used by it at the site. Such repair section was a part and parcel of the civil engineering work of the Company, but no outside work was undertaken by the said repair section. It was registered under the Factories Act and was a part and parcel. of the Company. No electrical, mechanical or general engineering products were ever manufactured by the said Repair Section either for the use of the Company or for any outsider. The principle work of the petitioner company is not covered under Schedule-I of 1952 Act. The petitioner’s work in repair section commenced from 17.11.69. A Motor of 15 H.P. was used in the repair section and 15 employees were engaged. In January 1970 only 14 workers were engaged and in July 1970, only 11 workers were engaged. At no time, the company engaged more than 15 workers in the Repair Section. The Regional Provident Fund Commissioner, Jaipur, issued a notice to the petitioner-Company on 17.10.69 seeking to apply the provisions of 1952 Act and the schemes framed thereunder. Thereafter, proceedings under section 7A of 1952 Act were initiated against the petitioner by the respondent. The petitioner filed a detailed reply dated, July 20, 1976 and denied its liability. The company questioned the applicability of the provisions of 1952 Act. The respondent passed an order and held that the provisions of 1952 Act were applicable to the petitioner. A direction was given to make payment of the P.P. dues within ten days.
4, The main ground of challenge to the order which has been communicated to the petitioner on 6.8,91 is that the provisions of 1952 Act are not applicable to the case of the petitioner and, therefore, the order passed by the respondent is without jurisdiction. The principal work of the Company is of civil engineering and in respect of that work the provisions of 1952 Act are not applicable. The Repair Workshop is attached to the civil work of the petitioner-Company. The Company is not engaged in manufacture of electrical, mechanical or general engineering products. The work in the repair workshop is essential and incidental to the dominant work of the petitioner-company. It is a minor or subsidiary work of the main industry and therefore, the provisions of 1952 Act cannot be applied qua the petitioner. In response to the notice of the Court, the respondent has stated that the provisions of 1952 Act are attracted. The petitioner-Company had in fact, established a workshop consisting of machine shop, fabrication section, automobile repair shop, Dumper repairing shop, Battery charging shop and the Auto Electrician Shop. However, in para 4 of the reply it has been admitted that the work relating to. maintenance and repairs etc. of the machinery and equipment belonging to the company was carried on the workshop. It was also not denied that no outside work was being done in the workshop. The case of the respondent is thai the workshop of the petitioner clearly falls within the scope of Section 1(3) & (b) read with Section 2(g) and 2(ic) of 1952 Act, and its Schedule-I.
5. Shri Subhash Jain, learned counsel for the petitioner, bad placed reliance on the decision of the Supreme Court in Cemindia Company Ltd. v. Bachu Bhai N. Rawel 1988 (1) LLJ 138 in support of his submission that the provisions of 1952 Act are not applicable to the case of the petitioner. Shri Narendra Jain, learned counsel for the respondent, on the other hand, placed reliance on Kamla Asbestos Cement Articles Industries v. The Regional Provident Fund Commissioner, Rajasthan, Jaipur (the decision of this Court dated, December 8, 1988, in D.B. Civil Writ Petition No. 33 of 1978) in support of his argument that the workshop of the petitioner-Company must be treated as industry covered by Schedule -I of 1952 Act, because, it clearly falls within the scope of the phrase “electrical, mechanical or general engineering products.” The Company is clearly engaged in manufacture of these products at its workshop and, therefore, it must be treated as covered by 1952 Act, argued Shri Narendra Jain.
6. Section 1(3)(a) and (b) of 1952 Act reads as under:-
“(3) Subject to the provisions contained in Section 16, it applies-
(a) 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,
(b) 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.”
7. In Cemindia Co. Ltd., (supra), their Lordships of the Supreme Court were also concerned with a Company which was carrying on business as Engineering Contractors engaged in building and construction industry. The Supreme Court took notice of the notification dated, September 26, 1964, issued under Section 1(3)(b) of the Act, whereby the provisions of the Act were extended to the establishment of Engineers and Engineering Contractors not exclusively engaged in civil and construction nature. In that case also, the Regional Provident Fund Commissioner applied the provisions of 1952 Act. In a writ petition filed before the Calcutta High Court, the contention of the petitioner about non-applicability of 1952 Act was upheld. However, a similar petition filed before the Bombay High Court by the petitioner company was rejected. Reversing the decision of the Bombay High Court, the Supreme Court held:
“Where an establishment is enaged exclusively in carrying on a particular type of business by setting up any place of work with a view to carrying on the work of repairs etc. to the tools, equipment, vehicles etc. used in its business or to carry on any other activity which is essential for its business effectively and which is not used to carry on the work for the benefit of any third party but utilised exclusively for the business of the establishment, such establishment does not cease to carry on exclusively the business in which it is engaged. It cannot also be said that the establishment has commenced to carry on another in- dustry by the setting up of such a place of work. In order to discharge effectively its functions as engineers and engineering contractors engaged in building and construction industry, an establishment has to maintain workshop or workshops where the work of smithy, welding, cutting, carpentry etc. are carried on. In the instant case, the work carried on at the appellant company’s workshop at Bombay was the work of maintaining and repairing of the equipment belonging to the appellant only. The appellant was not earning any income or profit by carrying on the work of any other establishment at the said workshop. It is wrong to treat the workshop in question as a separate unit of the business of the appellant forming a separate establishment for purposes of determining whether the Act is applicable to the appellant or not. All the business operations carried on by the appellant in their totality should be taken into consideration in order to ascertain whether the appellant was engaged exclusively in building and construction industry or not. Such a workshop in which works connected with the business of building and construction industry of the owner were being carried on cannot be construed as a separate establishment for purpose of the Act”.
8. This case is fully attracted in the facts situation obtaining in the present case also in the context of the principle laid down by the Supreme Court. The Supreme Court held that the work carried on by the Company’s workshop was the work of maintaining and repairing the equipment belonging to the Company only. The Company was not earning income or profit by carrying on the work of any other establishment. The Court further held that all the business operations carried on by the Company in their totality should be taken into consideration in order to ascertain, whether the Company was engaged exclusively in building and construction industry or not. A workshop in which the works connected with the building and construction industry of the owner were being carried on cannot be construed as separate establishment. In the present case also the admitted position which has come on record shows that the workshop or repair section established by the petitioner is a part of the business of the petitioner-company. The dominant business is building and construction work. Thus, the main activity of the petitioner company is of building and construction. In order to effectively and efficiently run its business it has to get its tools, equipment, vehicles etc. maintained properly. Their repair is a must for the efficient performance of the business by the petitioner company. It is the case of the petitioner that the work of any other person is not being done in the workshop/repair section. No construction industry can possibly function without repair of its machinery and equipment and without their proper maintenance. Therefore, it is not possible to accept the submission of Shri Naren-dra Jain, learned counsel for the respondent, that the petitioner is engaged in carrying on business in an industry which is covered by Schedule-I of the Act. The petitioner cannot be treated as covered by the provisions of Section 1(3) of 1952 Act and it cannot be said that the petitioner industry is engaged in manufacture of electrical, mechanical or general engineering products. The respondent has committed a serious ju-risdictional error in holding that the company is engaged in an industry where electrical, mechanical and general engineering-works are manufactured. The decision of the Division Bench in Kamla Asbestos Cement Articles Industries (supra) is clearly distinguishable on facts. In that case, the Company was engaged in the manufacture of pipes. The Division Bench of the High Court while taking note of the rule of construction which should fulfill the object of the Act, held that the industry of manufacturing Asbestos pipes using a machine for the purpose falls within the entry contained in the Schedule. The Court rejected a narrow construction sought to be placed on the term “pipes” used in Clause (a)(20) of the Schedule appended to the Act.
9. In view of the above discussion, it is held that the order dated 6.8.81 passed by the respondent suffers from error of law apparent on the face of the record. The writ petition is allowed and the order dated 6.8.81 passed by the respondent is quashed.
10. Parties are left to bear their own
costs.