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PETITIONER: THE REGIONAL PROVIDENT FUNDCOMMISSIONER, BOMBAY

       Vs.

RESPONDENT: SHREE KRISHNA METAL MANUFACTURINGCO., BHANDARA

DATE OF JUDGMENT: 14/03/1962

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1962 AIR 1536            1962 SCR  Supl. (3) 815  CITATOR INFO :  E&F        1964 SC 314  (4,5,8)  F          1965 SC1076  (12)  RF         1971 SC2577  (4,13,17)

ACT: Construction-Rules       of        Grammer-Context-Composite factory--Different       industries-Whether       "factory"- Determinative  industry, which      is-Employees’  Provident Funds  Act,  1952  (19  of 1952), ss.  1(3)  (a),  (2)  (g), Schedule I.

HEADNOTE: The  respondent company in the first appeal carried  on  the business of manufacturing brass, copper and ’kasa’  circular sheets for manufacturing utensils therefrom, milling  paddy, a  flour mill and a saw mill in the same compound. it had  a rolling  mill  for the first item of its  business  and  had 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 Provident Funds Act came into 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 only 31 workmen as against 211 employed for the  manufacture 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  of s. 1 (3) (a) of the Act and that the High  Court was in error in construing it otherwise. Held,  that  the fact that the Act was beneficent  piece  of legislation aimed at promoting the welfare of the  employees must he borne in mind in construing it and that there was no warrant  in  the language or context to read into  or  imply

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into s.   1 (3) (a) the sense of exclusive engagement in the schedule 816 industry  and that composite factories were well within  the meaning  of ’factory’ which was comprehensively  defined  by s.2(g)  and  later made clearer by the  amendment  by  which establishments"   were  included  within  the   meaning   of ’factory’. Held,  further,  that in s. 1 (3) (a) the  qualification  in which  fifty  or  more  persons  are  employed’  though   it immediately followed the words industry’ specified  Schedule 1, 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 determind by the context  and by reference to other relative provisions of the Act. Held,  further, that the expression engaged in any  industry specified  in Sch. I’ means primarily or mainly  engaged  in any  industry  as contrasted with incidentally and  in  that sense  minor  or subsidiary activities for  the  purpose  of feeding the main industry would not determine the  character of  the industry with reference to the Schedule.   When  two constructions  are  possible  each of which  leads  to  some anomolies that which is on the whole consistent with  common sense  and the current understanding of the expression  used should be preferred. Held,  also  that  the respondent in the  first  appeal  Was commercially  engaged in a scheduled industry  among  others and  the  Act was applicable to it; further  held  that  the respondent  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 come within  the Act.

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos,  361  and 387 of 1959. Appeals from the judgment and order dated March 1957, of the Bombay  High Court at Nagpur in Miso.  Petn.  Nos.  282  and 335 of 1955. B.   Sen and P. D. Menon for the appellants. I.   N. Shroff, for the respondent (in C. A. No. 361159). A.   V. Viswnatha Sastri and V. J. Merchanr, for  respondent (in C. A. No. 387 of 1959).  817 1962.  March 14.  The Judgment of the Court was delivered by GAJENDRAGADKAR,   J.-These  two  appeals  have  been   heard together   because   they  raise  a   common   question   of construction of section 1(3)(a) of the Employee’s  Provident Funds  Act,  1952 (No. 19 of 1952) (hereinafter  called  the Act).  The Regional 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  the           Indian Partnership Act. Its business consists of (1)  manufacturing brass,  copper  and  ‘kasa’  circular  sheets  a   and   the preparation of utensils therefrom; (2) milling paddy, (3)  a flour  mill and (4) a saw mill.  The aforesaid  four  work,, are  situated in the same compound.  For the manufacture  of metal circular sheets, the company has a rolling    machine. In  order  to carry on other works, a  separate  rice  mill, flour mill and saw mill, have, been installed by the Co. The

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Company’s case is that it employs different workers in  each section  of  its activities 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  Provident  Fund Commr., however, took a contrary view.  He held that the Co. fell  within  the meaning 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. 818 At  that  stage, the Co. moved the High Court of  Bombay  at Nagpur by a writ petition under Art. 226 of the Constitution and  it  prayed that an appropriate writ  should  be  issued restraining  the  Commissioner from enforcing  the  relevant provisions  of the Act against it.  This writ  petition  has been  allowed  and an appropriate writ has been  issued  at; prayed  for  by the Co. It is against this  order  that  the Regional  Commissioner  has  come  to  this  Court  with   a certificate  granted by the High- Court.   For  convenience, the Regional Provident Fund Commissioner would hereafter  be referred  as  the  appellant and  the  Shree  Krishna  Metal Manufacturing Co. would be called the Company. The  Oudh Sugar Mills Ltd. which is respondent in  C.A.  No. 387  of 1959, 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,  1948.    It   also manufactures and Markets vegetable oil after completing  all the  processes  at  Akola.  The oil is then  tinned  in  tin containers  of certain sizes.  The said tin  containers  are fabricated  by  the mills in its own precincts  of  the  oil factory.  These tin containers are used only for the purpose of  packing  vegetable oil and for no other.  They  are  not sold  in  the market nor are the customers  of  oil  charged separate price for the tins.  The work of fabricating  these tins  began on the 13th October, 1948.  In this  section  of the  Works only 31 workmen are engaged, while in  the  Mills proper  211 workers were working on the manufacture  of  oil and its by-products on the 1st of November, 1952.                             819 The  Central Government framed a scheme under 5 of  the  Act and  this  scheme  came into force partly  on  2.9.1952  and partly  on  6.10.1952.  Under this scheme,  an  employer  is required  to contribute 6-1/4% of the-total wage bill  every year  as  his contribution towards the Fund and  3%  as  the administrative  charges  on the total  contribution  of  the employer and his employees. On the 8th of August, 1955, the Regional 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.

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At  that stage, the Mill moved the High Court of  Bombay  at Nagpur  by  a writ petition 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 convenience, 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               820               instance  to  all  factories  engaged  in  any               industry  specified  in Schedule  I  in  which               fifty  or more persons are employed,  but  the               Central Government may, after giving not  less               than two months’ notice of its intention so to               do, by notification in the Official  Gazette,-               apply  the  provisions  of  this  Act  to  all               factories  employing  such number  of  persons               less  than  fifty as may be specified  in  the               notification   and   engaged   in   any   such               industry." As a result of the amendment made in 1956, section 1(3)  has become 1(3)(a) and so, it is referred to as such. Before  construing  this  clause,  it  may  be  relevant  to remember  that  the  Act  was  passed  to  provide  for  the institution  of provident funds for employees  in  factories and  other establishments.  The object of the  Act,  broadly staged,  is  to bring into existence a scheme to  be  called "The Employees’ Provident.  Funds Scheme" for the establish- ment of provident funds tinder the Act for employees 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  a.  9  recognises  the   Fund constituted  under  the Act for the purpose  of  income-tax. Section 10 affords protection against attachment in  respect of  the amount standing to the credit of any member  in  the Fund  and  s.  11  prescribes for  priority  of  payment  of contributions  over  other  debts.   In  other  words,   the provisions of the Act constitute a welfare measure  intended for the benefit of the workmen to whom the Act applies,  and this  beneficent purpose of the 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 decision is  whether s. 1(3)(a) excludes composite factories                             821 from  its scope.  It has been urged before us on  behalf  of the respondents that composite factories are not intended to be  covered  by s.1(3)(a).  It is only factories  which  are exclusively engaged in any industry specified in Schedule  I to which the Act applies, provided, of course, they  satisfy the other test that there are 50 or more persons employed in them.   This argument is based on the ’fact that,  when  the Act  was originally passed in March, 1952,  the  Legislature had  provided  for only six industries in  Schedule  T.  The intention  of the Legislature was to extend the benefits  of the  Act  to the workmen industry-wise step  by  step.   The

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Legislature  was conscious that the relevant provision,;  of the Act imposed a burden on the employer and so, it took the precaution of confining the operation of the Act only to six important industries specified in Schedule 1. Section 1  (3) (a)  no  doubt confers power on the  Central  Government  to extend  the  provision  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 should  be  extended  to  workmen engaged  in  additional  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 industries 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. 1. (3 (a). In  our  opinion, this argument is not  well  founded.   The expression "all factories engaged in any industry  specified in Schedule I" does not lent itself to the construction that it  is  confined  to factories exclusively  engaged  in  any industry  specified in Schedule I. What exactly is meant  by the categories of factories, it could exercise  its power 822 clause, we will have occasion to deal with later on. For the present, it would be enough to say that when the Legislature has   described  factories  as  factories  engaged  in   any industry,  it did not intend that the said factories  should be  exclusively  engaged     in  the  industry  specified in Schedule  I.  The  construction for  which  the  respondents contend  requires that we should add the word  "exclusively" in the    clause and that clearly would not be permissible. The  definition of the word "factory" prescribed by s.  2(g) of  the  Act  shows that a  "factory"  means  any  premises. including  the  precincts thereof, 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, the word ,factory" used in s.  1(3)(a) has  a  comprehensive meaning and it  includes  premises  in which  any  manufacturing  process is being  carried  on  as described  in the definition.  This definition of  the  word "factory"  shows  that the factory engaged in  any  industry specified  in Schedule I cannot necessarily mean  a  factory exclusively engaged in the particular industry specified  in the said Schedule. Besides,  s.1(3)(a),  is it has been amended  in  1956,  now refers to every establishment which is a factory engaged  in any industry specified in Schedule I and the introduction of the  word ,establishment" clearly shows that it may  consist of different factories dealing with different industries and yet  considered  as  one establishment, it  may  fall  under section 1(3)(a), provided the other requirements of the said section  are satisfied.  Section 2A which has been added  in the  Act by the Amending Act 46 of 1960 makes it clear  that an establishment may consist of different departments or may have different branches, whether situate in the ,same  place or  in  different places, and yet all  such  departments  or branches shall be treated as parts 823 of  the  same  establishment.   Therefore,  the  concept  of establishment being, of such a comprehensive character,  the insertion  of  the word "establishment" in s1(3)(a)  by  the Amending Act of 1956 helps to negative the argument that the factory therein contemplated cannot be a composite factory. Besides, the explanation to Schedule I which has been  added

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by  Act 37 of 1953 clearly shows that one of the  industries originally  included  in  Schedule  I  in  1952   definitely suggests  the idea of a composite factory and  would,  thus, assist the interpretation of the word "factory" as including a  composite  factory  Under  s.1(3)(a).   The  industry  in question  is electrical, mechanical or  general  engineering products and the explanation of this industry shows that  it includes 25 different items, and so any factory carrying  on the  work of producing one or more of these items would  not be  exclusively  engaged in producing one or  the  other  of those,  items  and  would be in the nature  of  a  composite factory  and yet it would definitely fall under s.1  (3)(a). Therefore  in  our opinion,’ the argument that  a  composite factory  carrying  (in different  industrial  operations  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 the word "Industry" or the word  "factor"  is under s. 1 (3)(a).  The respondents’ contention is that this numerical test must be satisfied by the industry and not  by the factory.  In other words, 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 is engaged in the  industry  specified in schedule I. if this is  the  and correct  position, neither the Mills nor the  Company  would fall within the mischief of the.  Act.  The 824 argument in support of this construction is that the pronoun "which" must under the ordinary rules of grammar qualify the noun immediately preceding it and that takes it to the  word "Industry" rather than to the word "factories". We  are  not  inclined to  accept  this  construction.   The ordinary rule of grammar on which this construction is based cannot  be treated as an invariable rule which  must  always and in ever ease be accepted without regard to the  context. If the context definitely suggests that the relevant rule of grammar  is  inapplicable,  then  the.  requirement  of  the context  must  prevail  over the rule of  grammar.   As  the provision  stands, the word ’factories’ is qualified by  two clauses.   The  first adjectival clause is ’engaged  in  any industry  specified in Schedule I’ and the second clause  is "in which 50 or more persons are employed".  In other words, in order that the factories should fall within the scope  of the  pro. vision, they must satisfy two tests  they must  be engaged in any industry specified in Schedule I’ they  must, have  employed  50 or more persons.   The  first  adjectival clause is in the nature of a parenthetical clause and so the clause beginning with the words "in which" must  necessarily qualified the word "factories" and not the word  "Industry". Therefore  in  our  opinion,  the  requirement  as  to   the prescribed number qualifies the word "factories"    and does not qualify the word "industry" that, means the question  to ask  is : does the factory employ 50 or more persons  ?  The question  is  not:   does the industry  employ  50  or  more persons ? This  conclusion is strengthened by the provision  contained in the latter part of s.1(3)(a). This latter clause empowers the  Central Government to bring within the purview  of  the Act  other factories in the manner specified by  it.   While referring to the factories which may thus be brought  within the purview of the Act, the clause provides that those                             825 factories must be such as employ such number of persons less than  fifty  as may be specified the notification  and  they

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must be engaged in any such industry.  In other words,  this latter clause makes it clear that it is the factories  which have  to  satisfy  two tests-(i) that the  number  of  their employees should not be less than 50 and (ii) that they must be engaged in any such industry as is specified in  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 Government, may, after giving not less than two   months’  notice  of  its  intention  so  to   do,   by notification  in the Official Gazette, apply the  provisions 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 employees applies to the   establishment  and  not  to  the  industry.   We   may incidentally and that the requirement of fifty has now  been reduced to twenty by the Amending, Act 46 of 1961). There is yet another provision in the Act which supports the same conclusion.  Section 19A 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 provisions 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, shall be  final.   This clause  has been subsequently amended, but for  our  present purpose  those ,amendments do not matter.  The  point  about the provision is that the (central Government has 826 been  given power to resolve a doubt as to whether fifty  or more   persons   are  employed  in  a  factory  or   in   an establishment and that shows that the requirement as to  the number of employees governs the factory or the establishment but not the industry. That  takes  us  to the question as to the  meaning  of  the expression,  "engaged in any industry specified in  Schedule I’  , and this question no doubt, presents some  difficulty. We  have already rejected the argument’ that  the  composite factory is not included in s. 1(3)(a).  That means that  the clause "engaged in any industry" does not mean  "exclusively engaged  in any industry".  If that is so, what  exactly  is the meaning and significance of this clause ? Two views  are possible.   It  may be said that even if a factory  is  only partially  engaged in any industry specified in Schedule  1, it would satisfy the test however small or insignificant may be  the  extent 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 which relates to  an industry specified in Schedule I, the  factory  would fail  under R. 1(3)(a) even though its relevant activity  in the  specified  industry may be of a  minor,  incidental  or subsidiary.  The  other  construction  would  be  that   the expression  "engaged  in any industry" means  "primarily  or mainly engaged in any industry".  On this construction, if a factory  is  in several industrial activities one  of  which related to the industry specified in Schedule 1, it would be necessary to enquire, whether the said specified activity is subsidiary  or  minor; if it is  subsidiary,  incidental  or minor,  the  factory cannot be said to be  engaged  in  that industry.   Cases may occur where a factory is primarily  or mainly  engaged  in others industrial activities and  it  is

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only  for  feeding one or more of such activities  that  the factory  may  undertake  an  activity  in  respect  of   the specified  industry.  But each if undertaking is merely  for the purpose of feeding its     827 major activity; it is subsidiary, incidental and minor.   In that  case, the factory cannot be said to be engaged in  the industry  specified in Schedule 1. Both  construction,%  are possible  and each one of them presents some anomalies.   On the first construction, it would follow that even if half  a dozen employees are engaged by the factory in regard to  its activity  in  the  industry specified  in  Schedule  1,  the provisions of the Act would 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  construction it  is  not easy to make a choice  particularly  which  both 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 industry specified in  Schedule I".  If a factory is engaged in two  industrial activities  one  of  which  is  its  primary,  principal  or dominant  activity  and the other is  a  purely  subsidiary, incidental     minor  or feeding activity, that  it  is  the primary or the dominant activity which should determine  the character  of  the factory under s. I (3)  (a).   This  view doer, not purport to add any word to the section; it  merely interprets  relevant  expression "engaged  in  any  industry specified in Schedule -1". 828 When it is said that a person is engaged in any business, it usually  means he is engaged mainly or principally  in  that business;  and  the  same would be  the  position  when  the relevant  clause refers to an establishment engaged  in  the specified industry.  That is the common-sense view which  is consistent  with the current and accepted denotation of  the words "engaged in". One  of the tests which can sometimes be applied is  whether the  product of the incidental activity is intended for  the market  or exclusively for use by the factory in  its  other department only.  If the answer to this question is that the said  product is sent out in the market for sale,  then  the activity  in question cannot be treated as  incidental.   In such  a case, it may be said that the factory is engaged  in both  the  activities  and as such, it  is  engaged  in  the industry  specified in Schedule 1. But the test  of  sending the  product in the market cannot be treated as decisive  or even  very  significant because the definition of  the  word "manufacture" given in s.2(1)(a) shows that a commodity  may be  produced  by  the factory as  much  for  sale  transport delivery or disposal as for its own use.  Therefore the fact that  the  a commodity is produced only for the use  of  the factory  in  its other department may not  necessarily  show that the activity  which leads to the production of the said commodity  is not the main activity of the factory.

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If   a  factory  is  engaged  simultaneously  in   different industrial activities and one of these is in relation to all industry  specified in Schedule 1, then it can be said  that the factory is engaged in the industry specified in Schedule 1.  The  fact that the factory engaged in  other  industrial activities  will not necessarily take it out of the  purview of  s.1(3)(a). The broad test which may safely be applied in dealing with this question is: is the                             829 factory engaged in the industry specified in Schedule I from a  business point of view?, and the answer to this  question would generally give a satisfactory solution to the  problem posed by s. 1(3)(a).  Whether or not a factory is engaged in any  industry  specified  in Schedule I would,  thus,  be  a question  of  fact  to  be  determined  in  the  facts   and circumstances  of  each case.  That appears to be  the  view taken  by Balakrishna Ayyar J. in the Madras Pencil  Factory by its Properties v. Perumal Chetty & Sons by its partner V. Ananthakrishna   Chetty   v.The  Regional   Provident   Fund Commissioner,(1)  and   with  the view  we  are  in  general agreement. What remains now is to consider whether  the High Court  was right in holding that the company and the Mills are  outside the  purview of s.1(3)(a). As we have already seen,  company carries  on four different kinds of  industrial  activities, one  of  of which is the manufacturing of brass  copper  and ’kasa’  circular  sheets  and the  preparation  of  utensils therefrom.   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 the 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  different 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 activities.  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 engaged 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 (1)  A.I.R.. 1959 Mad. 235. 830 four activities did not consistently exceed 50; but that  it is a point on which the High Court has expressed no opinion, and rightly, because it is a disputed question of fact which cannot  be tried in writ proceedings.  The appellant’s  case is  that  the total number of employees engaged by  the  Jo. exceeded  50 at the relevant time and it is on that  footing that  the present writ petition has been tried in  the  High Court.  Therefore, without deciding this dispute question of fact, it may be assumed that for the purpose of the  present writ proceedings, the test of the numerical strength can  be said to have been satisfied.  The result is, the view  taken by the High Court that the company is outside s. 1(3)(a)  is erroneous  in law and must be reversed; and that means  that appeal No. 361 of 1959 filed by the regional Commissioner is allowed and the writ petition filed by the Co. is  dismissed with  costs Throughout.  In the result, the respondent  will have to comply with the requisition issued by the  appellant against  it  under the relevant provisions of the  Act.   In regard to the date from which the respondent should make its statutory  contribution to the Provident Fund the  appellant

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may  have to give a direction after consulting the  workmen, because from the date so specified by the appellant both the respondent   and  its  workmen  will  have  to  make   their respective contribution. The   position  with  regard  to  the  Mille  is,   however, different.  The main industrial activity of the Mills is the manufacture  of hydrogenated vegetable oil named  ’Vanasada’ and  its by-products, such as soap, oil-cakes etc.   It  ’is true  that  in the mills tin containers are  fabricated  and this, no doubt, is an activity covered by Schedule I. But it is  obvious  that this branch of the activity of  the  mills forms  a very minor portion of its activity.  The number  of employees  engaged in this branch is 31, whereas  the  total number of employees is 211.                             831 Besides; the containers are produced only for the use of the Mills.  They, were not intended to be sold in the market  at ill.  Price for the containers is not also charged from  the customers.   Indeed,  containers are required even  for  the purpose  of storage of the vegetable oil.  It is thus  clear that  the fabrication of tin containers has been  undertaken by  the Mills only as a feeder activity ; it  is  integrally connected with its main business of producing and  marketing vegetable  oil and as such, it is a minor part of  the  said activity.   Having regard to the relevant facts admitted  or proved  in the present case, we are satisfied that the  High Court, was right in coming to the conclusion that the  Mills was  not  a factory within the meaning of  section  1(3)(a). The  result  is,  the appeal No. 387 of 1959  fails  and  is dismissed with costs. C.A. 361 of 1959 allowed. C.   A.387 of 1959 dismissed.