JUDGMENT
Bhaskaran Namhiar, J.
1. The Employees’ Provident Fund and Miscellaneous Provisions Act, 1952, Act 19 of 1952, applies to every establishment which is a factory engaged in “Automobile repairing and servicing industry”. The appellant, The Jaya Spray Painting Works’ is engaged in spray painting of automobiles and disputed his liability to be covered under the Act. The Central Government was therefore moved under Section 19-A of the Act and an order dated 24.6.1982 (Ext.P6) was passed rejecting the appellant’s contentions and upholding the department’s stand that the appellant s factory was liable to be covered under the Act. The reasons given by the Government alone require examination. They are these:-
“The dictionary meaning of the word “repair” is to mend, to restore, refresh and revivify, restoration after injury or decay. Spray painting is one of the operations involved in repairing automobiles which are worn out by age or are damaged by accidents. Therefore, I hold that the activity of spray painting of cars, vans etc., falls under the head “Automobile repairing.”
“The E.P.-F. & M.P. Act being a piece of welfare legislation, a beneficial construction will have to be adopted to effectuate its object and advance the cause of social justice. The establishment has been covered under the head “Automobile repairing and Servicing Industry”. In order to carry out the intention of the legislature it will be necessary to read the word “and” as, “or”, – a disjunctive. It will suffice if the establishment is engaged in Automobile
repairing or servicing. If the language were not so modified to meet this intention, a contrary result will follow and this would be clear on a scrutiny of the various entries listed in Schedule-I”
2. The appellant unsuccessfully challenged this order in a writ petition under Article 226 of the Constitution and aggrieved thereby, filed this appeal.
3. It has been found as a fact by the Central Government that the appellant is engaged in spray painting of automobiles. The question for our decision is whether painting an automobile can be considered as repair within its ordinary meaning. No direct decision on this point by any of our courts has been brought to our notice and necessarily we have to refer to the dictionaries and the decisions of other courts.
4. In Webster’s Third New International Dictionary
“Repair” means “to restore by replacing a part or putting together what is torn or broken; fix, mend; to restore to a sound or healthy state; renew; revivify; the relative condition with respect to soundness or need of repairing (the car is in reasonably good repair; the building is in poor repair)”
“Repairs” – (pl) “The portion of maintenance charges expended to keep fixed assets in adequate and efficient operating condition and recorded in the books as expense”.
5. In the Shorter Oxford English Dictionary
“Repair”-the act of restoring to a sound or unimpaired condition; the process by which mis is accomplished; the result attained. Restoration of some material thing or structure by the renewal of decayed or worn out parts, by refixing what has become loose or detached; the result of this, to renew; to renovate (some thing or part); to restore to a fresh or sound condition by making up in some way for previous loss, waste, decay or exhaustion.”
6. In one of the earliest decisions decided as early as March 18, 1899, in Wood v. Walsh and Sons (1899) 1 Q.B. 1009 the question arose in a case of compensation under the English Workmen’s Compensation Act, 1897. The deceased was engaged in painting the outside of a shop; he was standing on a ladder which was resting against a wall. He stood on a rung of the ladder: the rung broke and the man was killed by the fall. Compensation could be claimed only if the deceased was employed in or about any building which was being constructed or repaired. Smith L.J. held thus:-
“In other words, is painting the outside of a house to be considered as construction or repair within the ordinary meaning of those words? It is certainly not a work of construction; and, speaking for myself. I should certainly think that neither construction nor repair of a house could mean merely outside painting. The arbitrator has found in the present case that nothing was being done to the house but preparation for painting and the actual painting; would any one using language in its ordinary sense call painting the repairing of his house? If the Legislature desired to bring this class of employment, which is a very well-known one, within the purview of the Act, they would have done so in clear and unmistakable terms, instead of using language which if given its ordinary meaning operates to exclude it. The words “constructed or repaired” mean some work relating to the structure of the building. On this point, I think that the true construction of the section
is that repair does not include painting.”
7. Within a year, in May Jane Hoddinott (Pauper) v. Newton, Chambers and Co. Ltd. (1901 A.C.49) the House of Lords construed the word “repair” thus:-
Lord Macnaughten
“Now repair, as the word is commonly understood, is repair whether much is done or little. Repair for the most part is occasional and partial. A man does not usually wait to repair his house until it is altogether ruinous and on the point of falling to pieces. Why may not construction be partial just as repair is partial?”
“Construction, repair, demolition-these three operations cover, I think, every varying phase in the life of a building from its beginning to its end.”
“If you construe the words of the Act so narrowly as to exclude one of the commonest operations of the builder, the alteration of buildings once completed, and so debar workmen engaged in that operation from all benefit of the Act, you are, I venture to think, violating the letter as well as the spirit of the enactment.”
8. After this judgment, a similar question whether white washing was repair, arose before the Court of Appeal in Dredge v. Conway Jones & Co. (1899 2 K.B. 42). That was an appeal from the decision of a county court Judge who following the decision in Wood v. Walsh (1899 1 Q.B. 1009) held that whitewashing was not repairing within the Act. In appeal, A.L. Smith M.R. (who earlier decided Wood v. Walsh). referring to the decision of the House of Lords in 1901 A.C. 49, and its own earlier decision, observed and held thus:-
“On a fair reading of this judgment, it seems to me that the limitation put on the words of the Statute by this Court is not adopted, and that we cannot now
say that painting does not come within the term repair”. It follows, therefore, that the decision of this Court in Wood v. Walsh (1899) 1 Q.B. 1009 is no longer law. Turning to Lord Morris’s judgment he says: “When you realize what the entity called the building is, all operations on it must be either constructing, or repairing, or demolishing… .There is no room for any third operation of so-called alteration as distinct from constructing or repairing.” That view seems to me to cover and include painting.”
“The conclusion to be arrived at is that painting as one of the operations to which a building is exposed, comes under the head of repair, and if painting does so, then equally whitewashing.”
9. The expression “relaying or repairing the permanent way” came up for consideration before the House of Lords in London and North Eastern Ry. Co. v. Berriman (1946) A.C. 278, where the noble Law Lords expressed the views of both sides thus:
Lord Jowitt L.C.
“The Court of Appeal took the view that “repairing” as used in the Railway Employment (Prevention of Accidents) Act, 1900, must be construed as including the work of maintaining in good working order; 1 agree with them and I agree with them largely because I can find no satisfactory criterion to tell me at what point that which is called repair as opposed to maintenance begins. It would, I suppose, be conceded that if a nut had worked loose and required to be tightened the work involved would be a work of “repair”, even although the actual work occupied only a few seconds of time. Oiling and cleaning may take longer than tightening a nut and in the course of oiling and cleaning something which is “repair” in any sense of the word may be discovered. It might, for instance, be seen that a split pin which had sheered off required to be replaced. To limit the word “repair” in
the sense contended for by the appellants seems to me to make the duty imposed by the statute quite impracticable. At one moment of time a man might merely be oiling and cleaning and at another moment he might be doing something which is repair in the narrow sense of the word that is in making good something which has developed a fault. It would be impracticable for the railway company whenever he did repair work in the sense to afford him protection which they failed to give him in the course of his oiling and cleaning.
xxx I have already reminded your Lordships of the evidence that this oiling and cleaning was necessary about every week. Supposing it was neglected-what would happen? The mechanism would begin sooner or later to work stiffly, but the signalman would still be able to pull over his lever without much difficulty. After a short while he would notice that it was working very stiffly and in time it would not work at all. Then I presume, it would be conceded that it was a case calling for ‘repair”; but it would seem that the question is essentially one of degree, and that it is. impossible to fix any definite point at which “maintenance ends and ‘repair” begins. The word “repairing” is in my view a word sufficiently wide, if the context so requires to include “maintaining”
Lord Macmillan
“I am unable having regard to the ordinary usage of the English language, to characterize the work of oiling and cleaning as a work of repair. The collocation of the words “relaying” or “repairing” is significant. Relaying is the major operation of renewing what is so defective as to be past repair; repairing is the minor operation of making good remediable defects. There was nothing wrong with the points which the deceased was oiling and cleaning, nothing requiring repair. The engineer who oils his engines would certainly be surprised to be told that he was repairing them. Oiling and cleaning, to my mind, are operations designed to keep plant in good running order and to prevent the development of defects necessitating repair.”
Lord Wright
“The question is whether the work of cleaning and oiling constitutes relaying of repairing or-more precisely-whether such work constitutes repairing because it is clear that the men were not relaying that is reconstructing the line. This has given rise to much discussion. The most important objection taken by the appellants seems to be that there was no actual fault in the mechanism (so it is said) which the men were putting right. It is said that “repair” implies an actual need of repair, that is, repair presupposes something defective which actually impedes the proper working of the system. What the men were doing, it is said, was “routine” cleaning or oiling; that, it is contended, is not repair, but maintenance and the word maintenance is not used in the Act or rule. It is also urged that in any case cleaning or oiling would not in ordinary parlance be described as repairing. The issue has certainly called for serious consideration, but I have come to a clear conclusion that the Court of Appeal were right in deciding as they did on this point. Morton L.J, in his careful judgment concluded (1) that “repairing” here means or includes “maintaining in good working order”. He had been discussing the view of the learned judge that “repair” presupposes that something was not functioning properly; in that event the judge said he might have been prepared to concede that if the defect was simply due to the need of a certain amount of oil, the operation of oiling might be a measure or repair. Lawrence L.J. (2) similarly, applying a definition of repairing given by Avory J. in Vincents’ case, (3) was of opinion that repairing included maintenance and all the routine work which had to be
done to put the line in proper working order. Mackinnon L.J. (4) adopted substantially the same view.”
“The proverb “A stitch in time saves nine” imports that repair is necessary to cure an incipient defect before the stage when a tear or rent has been reached. In cold countries pipes are cleared out before the incrustation has blocked them and so stopped the flow of water. De-carbonization of motor cars is done before the engine has ceased to be able to work. All these preliminary or precautionary measures would ordinarily be described as repair just as naturally as they would be described as maintenance. Maintenance indeed is a form of repair. It is aimed at remedying deleterious conditions which exist though they have not reached the stage of actual perceptible mischief. Metal surfaces in a machine which have to work on each other freely and without friction do suffer from an actual present defect until friction is removed by cleaning away dust or incrustation and achieving the free play by the addition of lubricants. That, I think, is fairly called repair. It has negative and positive aspects cleaning the surfaces for which operation the brush is used, and lubricating for which the oil is necessary. When we send a watch to the watchmaker to clean we normally speak of what is done a repair. Instances of the same kind might be multiplied indefinitely. I cannot see any difference in this context between repair and maintenance. Prevention we are told is better than cure but either process is repair. Such I think is the natural and ordinary use of words; the plain man would not, 1 am convinced, regard the distinction between maintenance and repair as other than unpractical and arbitrary. This is particularly true when applied to a measure like this. Its object is to protect and save human life. Least of all in such a measure can technical subtleties prevail, where the issue is between men’s life and death.”
Lord Porter
“The exact meaning of repair is perhaps not easy to define, but it contains, I think, some suggestion of putting right that which has gone wrong. It does not include the mere keeping in order by oiling, brushing or cleaning something, which is otherwise in perfect repair and only requires attention to prevent the possibility of its going wrong in the future. Moreover, the combining of “repairing” with “relaying”, if it has any effect at all seems to me too narrow, not to widen the meaning of the former word.”
Lord Simonds
“The work upon which he was engaged was a matter of routine and did not arise out of any defect which he was instructed to put right. The question then is whether he was repairing the permanent way. Stable J. held that he was not; the Court of Appeal held otherwise, and I must examine the reasons that they gave, Mackinnon L.J. (1) thought that it was a nice point but that on the whole he was repairing it with the meaning of the rule; he accepted the suggestion that “repairing” really means maintenance. Lawrence L.J. (2) thought that in the context “repairing” referred to the work of maintenance which included all the routine repairs which have to be done to put the line in proper working order, Morton L.J. (3) agreed that in its context “repairing” means or includes “maintaining in good working order”. My Lords, I cannot accept this view. I agree that every word must be construed in its context and I will in due course examine that context. But here is a common English word and it is legitimate and valuable to see what is its ordinary meaning. I do not doubt that apart from absolute usage its meaning in the transitive sense. is that which I find in the first dictionary that comes to my hand, “to restore to good condition by renewal” or “replacement of decayed or damaged parts or by refixing what has given way
to mend”. It does not appear to me possible to bring within this definition the operation of oiling or cleaning any article. A man oils his bicycle or his car. Does he repair it? He surely does not. I should be prepared to agree that, if some apparent functional disorder of a machine was cured by the simple process of oiling, it might be said that the workman had repaired it by oiling it though I think it would be a misuse of language. But here we have nothing but a routine precautionary measure, which I find it impossible to describe as repair. Had one of these workmen after oiling the apparatus been asked whether he had been repairing it, he would surely have answered, “No”. And that is the answer which I must give unless the context compels me to something else than the ordinary meaning. What, then, is the context upon which the respondent relies? I can find none which in any way justifies a departure from the ordinary meaning of the word. Its immediate neighbour is “relaying”. That juxtaposition affords no reason why the meaning of “repairing” should be enlarged.”
10. The question whether painting of a ship in dry dock constitutes repair arose directly for consideration in Day v. Harland and Wolff Ltd. (1953) 2 ALL E.R. 387, wherein it was observed thus:
“A ship owner finds it necessary or considers it worthwhile to pay to have the anti-fouling paint on the bottom of his ship renewed, and he presumably does not do that unless there is some reasonable need for it and for the cost to be incurred. I think the proper interference is that the anti-fouling paint has become defective, or has been in process of becoming defective, and the object of the repainting is to renew the defective or incipiently defective paint. It is different in kind from oiling, brushing and cleaning, and even polishing. The paint is an important part of the ship and this work is the work of rectifying defects or incipient defects. For that reason it
is work of repair”.
11. In Stroud’s Judicial Dictionary, Fifth Edition, it is noted thus at page 2240:-
“The painting of a house is usually provided for by the express terms of a lease, but it would seem that some degree of painting is implied in the mere term “repair”. It has been ruled, for instance that under a covenant to substantially repair uphold and maintain, a house, the covenantor is bound to keep up the inside painting (Monk v. Noyes I.C & P. 265); out it has been also ruled, on a convenent-as often as necessary well and sufficiently to repair, uphold, sustain, paint, glaze, cleanse, and scour, and keep and leave the premises in such repair reasonable wear and tear expected-that the tenant, if he has repaired within a reasonable time before leaving, is only bound, in addition to the repair of actual dilapidations to clean the old paint, etc., and not to repaint (Scales v. Lawrence, 2F. & F. 289). Questions of this kind will often be more questions of fact than of law; but if the painting be left to be included in the general term ‘repair’, the only legal obligation would seem to be to paint just as much as is necessary to keep the premises from actual deterioration.”
12. The schedule to the Act refers to an “industry”. In construing the relevant entries in the Act, the S.C. in Regional P.F Commissioner v. Shibu Metal Works (1965) Lab LJ 473 has laid down thus:-
“It is the character of the industrial activity carried on by the respondent’s undertaking that falls to be determined, and the question is not so much as to what is the product produced as what is the nature of the activity of the respondent’s undertaking”.
13. Automobile requires both maintenance and repair; maintenance to preserve it in good running condition and repair, to put it back into safe and sound condition. Repair is part of the maintenance of an
automobile and it is difficult to draw the dividing line where maintenance ends and repair begins. The word “repair” at least with reference to an automobile should therefore necessarily have a broad interpretation. We are not concerned here with a manufacturer who paints the vehicle before it is sold and put on the road. We are concerned with the appellant who undertakes to spray paint on automobile already manufactured. Painting of an automobile may be in various’ phases and in varying degrees. Thus, an automobile may require painting to prevent damage or deterioration of its body or its parts. It may be necessary to paint the bottom of the car black or at least with red oxide to prevent corroding of these parts exposed to atmospheric moisture. Plates may have to be replaced or patch work may have to be undertaken. Both may require repainting. Even the original paint would have worn out and it would require cleaning and repainting. Painting is covering or coating in the reconditioning or rectifying process of repair and of defects, necessary for- the efficient operating condition of an automobile. Painting is thus part of repair and we have no hesitation in holding that the appellant engaged in spray painting of automobiles was engaged in automobile repair.
14. Even if it was repair, it was contended that the relevant entry used the word “and” instead of “or” and therefore unless there was repair and servicing the appellant could not be covered under the Act. The Central Government found as a fact that the appellant undertook only repair. There is no finding that it was also servicing automobiles. In the context in which this entry appears, in the light of the scheme and object of the Act, we consider that the word “and” should be read as “or” as otherwise the entire object would be frustrated. We may also note that there is no set pattern in the use of the conjunction in the entries in the schedule and it cannot be said that wherever the Act used the word ‘and’ in the schedule, it could not mean ‘or’ as would be evident from the entries, ‘Leather and leather products industry’, ‘Rubber and rubber products”, ‘Plastic and plastic products’ and
‘Cotton ginning, Bailing and Pressing Industry’ etc. We, therefore, agree with the authorities that the word ‘and’ has to be read as “or” in the entry, ‘Automobile repairing and servicing industry, in the Schedule to the Act. We are, therefore, in entire agreement with the reasoning and conclusion of the Central Government in the impugned order.
15. The counsel for the appellant contended that the appellants paint not only automobiles but also fans, almirahs etc. and therefore, it cannot be said that he was repairing automobiles. This point was not raised before the Government or the authorities under the Act and not specifically pleaded in the writ petition also. In view of the finding of fact arrived at by all the authorities that the appellant was engaged in painting of automobiles, this contention
cannot be raised now for the first time in this proceeding. Moreover, assuming that the appellant also paints fans, almirahs etc., it could not affect the predominant activity, the painting of cars, in which the appellant was engaged.
16. There is no dispute on any other fact found by the Central Government and when the appellant was employing 21 persons and was engaged in an industry included in the Schedule, the Central Government rightly held that the appellant was covered under the Act. There is no error apparent on the face of the record and there are no grounds to interfere. The Original Petition was rightly dismissed and this appeal also shares the same fate.
The Writ Appeal is dismissed, but, in the circumstances of the case, no costs.