Madras High Court
P.P. Senniappa Chettiar And Sons vs Regional Provident Fund Commissioner ... on 26 September, 2001
Equivalent citations: [2002(92)FLR89], (2002)ILLJ248MAD, (2001)3MLJ734
Author: C. Nagappan
Bench: C. Nagappan
JUDGMENT A.S.Venkatachalamoorthy, J.
1. The above appeal has been filed by the petitioner in W.P.No. 273 of 1983 being aggrieved by the order of the learned single Judge.
2. The appellant/petitioner is a partnership firm dealing in Silk Cotton or Java Cotton at Periyakulam and the same is being commercially used for filling mattresses, pillows and for cushions. The nature of activity of the petitioner is to purchase the silk cotton shells from the growers, remove the cotton from the shells and send the cotton in gunny bags to the distributors and the same is being done only in seasonal months viz., July to September and in fact during August, September and October, 1972, they engaged 12 casual labourers. The case of the petitioner is that the Central Government by Notification in the Official Gazette dated September 23, 1972, introduced an amendment with effect from September 30, 1972, including the following items in Schedule-I and only the Industry connected therewith could come within the purview of the Act. The said Notification issued would mention the item as "Cotton Ginning, Baling and Pressing Industry". The plea on behalf of the petitioner is that the silk cotton or java cotton is different from cotton and hence as far as the petitioner's Industry/activity is concerned, the said entry Schedule-I would not apply. Yet another contention has been put forward to the effect that only if an industry carries on all the said three activities viz., Ginning, Baling and Pressing, the Act would apply, not otherwise. Thirdly it is argued that the Company employed only casual labourers that too only during two or three months in a year and as the number was less than 20, the Act would not apply. Finally a contention has been raised that inasmuch as the Legal Adviser to the Ministry of Labour, Government of India has no authority or jurisdiction to hear and consider the issue in question, the impugned order which was passed by the second respondent is without jurisdiction whatsoever.
3. The contention that is put forward on behalf of the respondents is that the cotton would include silk cotton or Java cotton since the silk cotton is one of the varieties of the cotton. The Act now in question applies to the industrial activity and not on the use or end-product. As far as the entry in Schedule-I is concerned, it is explained that the only sensible way of understanding the said entry is, "Cotton Ginning or Baling or Pressing Industry". As otherwise, it would lead to an absurdity and will defeat the very object and purpose of the Act. With regard to the contention that the factory employed only less number of labourers that too seasonally, it is submitted that the employment of casual labourers during season is a regular feature and they too have to be taken into consideration in determining the employment strength and the figures furnished by the petitioners during the season. The regular employment strength from July to September, 1972 was 20 consisting of 8 permanent workers and 12 casual workers. The regular employment as on that date satisfied the numerical requirements of the Act. Regarding the contention that the second respondent has no jurisdiction to pass the impugned order, it is submitted that inasmuch as the appellant has no case at all, no useful purpose will be served by remitting the matter by any authority even assuming without conceding that second respondent had no jurisdiction.
4. The petitioner is a partnership firm and carrying on business in silk cotton. It is stated by the petitioner in the affidavit filed in support of the petition that the nature of activity of the petitioner is to purchase the silk cotton shells from the growers, remove the cotton from the shells and send the cotton in gunny bags to the distributors. According to him the silk cotton is different from cotton and hence the entry in Schedule-I will not be attracted in this case. Basically it has to be noted that both the cotton and silk cotton come under the family of "Malavaceae" and this is the accepted system of classification in Taxonomy. Both types ofcottons are fibres and while cotton can be spun into thread and yarn, silk cotton cannot be spun.
Further both fibres are found in fruits surrounded by seeds and the fibres are to be separated necessarily from the seeds. In finding out whether the entry would apply and whether one item is different from the other item, the Courts are not to take into consideration what is the end product or for what purpose they are used. Or in other words, only the question to be examined is whether the industrial activity in respect of cotton Ginning or Silk Cotton are akin to each other. Petitioner has not placed any material before the Court to substantiate its plea that cotton will not include silk cotton.
5. As already pointed out, the industrial activity of the petitioner establishment is also of similar nature. The seeds are removed manually and silk cotton is cleaned through mechanical process. Or in other words, so long as industrial activity of the petitioner is also of similar nature i.e., removing of fibre from the seed as done in the case of cotton and in the absence of any material before the Court that cotton will not include silk cotton, the contention of the petitioner cannot be accepted.
6. Let us proceed to consider the second contention of the learned counsel for the petitioner. According to the learned counsel, the relevant entry in Schedule-I which reads thus:
"Cotton Ginning, Baling and Pressing Industry" has to be read as "Cotton Ginning and Baling and Pressing Industry". Or in other words, the case of the petitioner is, unless the industry carries on all the three activities, it would not come within the ambit of the Act. Per contra, the learned counsel for the respondents would submit that if the contention of the petitioner has to be accepted, it would be contra to the very provisions of the Act and that apart, the very purpose for which the Act has been introduced will be defeated. In other words, the learned counsel would contend that the said entry in Schedule-I is to be understood only as, "Cotton Ginning or Baling or Pressing Industry" and if the same is understood in any other manner, the same would lead to not only an absurdity but also will defeat the very purpose for which the Act has been enacted.
7. The general legal position is that whenever the word "and" is used, it would be understood as "or and vice-versa". But at the same time if the situation warrants, the Court can read "and" as "or". Let us proceed to consider reputed rulings on this aspect/point.
In Ishwar Singh Bindra v. State of U. P., , the Supreme Court considered the scope of Section 3(b)(i) of the Drugs Act, 1940 (as it stood before Drugs (Amendment) Act, 1962) and the Drugs and Cosmetics (Amendment) Act, 1964 arid examined the definition of the word "Drug" contained in Section 3(b) of the Act. It is unnecessary to refer to the facts, as this Court is concerned with the legal principle laid down. In paragraph No. 11, the Court laid down as under:
"Now if the expression "substances" is to be taken to mean something other than "medicine'' as has been held in our previous decision it becomes difficult to understand how the word "and" is used in the definition of drug in Section 3(b)(i) between "medicines" and "substances" could have been intended to have been used conjunctively. It would be much more appropriate in the context to read it disconjunctively. In STROUD'S JUDICIAL DICTIONARY, 3rd Edition, it is stated that at page 135 that "and" has generally a cumulative sense, requiring the fulfilment of all the conditions that it joins together, and herein it is the antithesis of "or". Sometimes, however, even in such a connection, it is, by force of a context, read as "or". Similarly in MAXWELL ON INTERPRETATION OF STATUTES, 11th Edition, it has been-accepted that "to carry out the intention of the legislature it is occasionally found necessary to read the conjunctions "or" and "and" one for the other."
Again, in the Ruling reported in Delhi Municipality v. Tekchand, , the Supreme Court observed thus:
"It would be more appropriate in the context to read it disconjunctively."
In STROUD'S JUDICIAL DICTIONARY, 3rd Edition, Vol. 1, it is stated at page 135:
"And" has generally a cumulative sense, requiring the fulfilment of all the conditions that it joins together, and herein it is the antithesis of "or". Sometimes, however, even in such a connection, it is, by force of a context, read as "or".
The next ruling is the one reported in Gopinder Singh v. Forest Department of Himachal Pradesh, . In that case, the Government framed certain Rules known as Himachal Pradesh Nautor Land owned by the Government outside the towns as well as outside the reserved and demarcated protected forests etc. According to Rule 7(a) a person who has less than 10 bighas of land whether as owner or otherwise or having an income of less than Rs. 2,000 per annum from all sources including lands, shall be eligible. The Supreme Court held that considering the intention of the framers of the Rules, it is necessary to read the word "or" in between the word as "and". We hereunder extract the relevant paragraph:
"We have carefully examined the provisions of Clause (a) of Rule 7 reproduced above. The Clause reads "such persons who have less than 10 bighas of land..... or have an income of less than Rs. 2,000 per annum from all sources including lands". There is thus inherent evidence in the clause itself to show that the two parts cannot be read disconjunctively. The second part makes it clear that an income of less than Rs. 2,000 per annum should be from all sources including lands. It is thus obvious that a person who has got less than 10 bighas of land but has an income of more than Rs. 2,000 from the said land is not eligible for allotment of nautor land under Clause (a). Even otherwise if we interpret the clause the way learned counsel for the appellant wants us to do it would produce absurd result. A person having two bighas of land but otherwise earning Rs. 20,000 per annum would be eligible for allotment of nautor land if we accept the appellant's interpretation. The object of granting nautor land under the Rules is to help poor and unprovided for residents of Himachal Pradesh. Considering the nature, scope and the clear intention of the framers of the Rules, it is necessary to read the word "or" in between the first and the second part of Clause (a) as "and". The appellant's income was admittedly more than Rs. 2,000 per annum and as such his claim for nautor land was rightly rejected."
Considering the nature, scope and intention of the framers of the law, the Courts should read the word "and" as "or" and similarly "or" as "and". Similar is the legal position, in English Law also. Let us quote a passage from MAXWELL ON THE INTERPRETATION OF STATUTES, at this juncture which reads thus:
"and" and "or"
In ordinary usage, "and" is conjunctive J.W. Dwyer Ltd. v. Met. Pol. Receiver, (1967) 2 Q.B. 970 and "or" disjunctive Uddin v. Associated Portland Cement Manufacturers Ltd. (1965) 2 Q.B. 582. But to carry out the intention of the legislature Anismipic Ltd. v. Foreign Compensation Commission, (1969) 2 W.L.R. 16qs3, it may be necessary to read "and" in place of the conjunction "or" and vice versa. The Disabled Soldiers Act, 1601, for example, in speaking of property to be employed for the maintenance of "sick and maimed . soldiers", referred to soldiers who were either sick or maimed, and not only to those who were both. (DUKE, CHARITABLE USES, P. 127). The expression "local and public authorities" in Section 4(2) of the Prevention of Corruption Act, 1916 has been held by WINN, J. not to "mean authorities which are both local and public ... (but) authorities which are either local or public R. v. Newbound, (1962) 2 Q.B. 102.".
8. From the above Rulings, the following can be inferred and laid down, as the legal proposition. To have a harmonious construction of the various provisions of the Act or to achieve the purposes and object of the Act, if the word "and" has to be read and understood as "or", then necessarily, it has to be read and understood so and vice versa.
9. Section 4 confers power on the State Government to issue in the Official Gazette to add any Industry in Schedule-I in respect of the employees whereof Provident Fund Scheme should be framed under the Act and once that is done, the Industry so added shall be deemed to be an Industry specified in Schedule-I for the purpose of the Act. The entry 'Cotton Ginning, Baling and Pressing Industry' came to be included by Notification of the Central Government in exercising its power under Section 4 referred supra vide Notification No. G.S.R. 1251 and the same came into effect on September 30, 1972.
10. The very purpose of introducing the Act is to provide for the institution of provident funds, family pension fund and deposit-linked insurance fund for employees in factories and other establishments. The said object is in tune with the policy of the State that is to establish a Welfare State in accordance with the directive principles of state policy as contained in Part IV of the Constitution. In those circumstances, this Court can have no difficulty in holding that a beneficial construction has been given and it is paramount duty of the Court to interpret the Act in such a manner to give effect to the intention of the Legislature and not to put a very narrow construction which might defeat the object of the Act.
11. The contention of the petitioner is that inasmuch as the activity of the petitioner is only Ginning and not Baling and Pressing, the very Act would not apply. If that is to be accepted, then there can be cases where an Industry may, be carrying on only one activity viz., Cotton, Ginning, employing more than 1000 workers and another one which may engage itself in all the three activities viz., Ginning, Baling and Pressing but still employ only 30 workers and in such an event, though the Act would not apply in the first case, apply to the second case. In this context, reference to some other entries may also be relevant while considering this submission of the appellant ana for which purpose we quote me following entries in Schedule.
(1) Automobile Repair and Service Industry (2) Paint and Varnishing Industry (3) Milk and Milk Products Industry If suppose there is an establishment (i.e.) an Automobile Workshop employing hundreds of workers but the said establishment or unit is not providing service facility, can it be said that the Act would not apply as the word "and" is employed. Similarly, the same question would arise in the case of the other two industries. For all the above reasons, this Court is of the opinion that the relevant industry in Schedule-I is to be read as "Cotton Ginning or Baling or Pressing Industry".
12. With regard to the third contention that the petitioner has engaged only less number of workers and that too considerable number are casual labourers only for few months in a year, it has to be pointed out that even as per the figures furnished by the petitioner, during the season the regular employment strength from July to September, 1972 was 20 consisting of 8 permanent workers and 12 casual workers. The Notification came into effect from September 30, 1972. The regular employment as on that date satisfied the requirements of the Act and the numerical requirements of the Act stands covered under Section 1(3) as factory engaged in Cotton Ginning.
13. With regard to the final submission that the matter has to be remitted back as second respondent has no jurisdiction to decide, this Court is of the view that inasmuch as this Court has clearly ruled that the cotton would include silk cotton also and that further the entry must be read as 'Cotton Ginning or Baling or Pressing Industry', no purpose would be served by remitting the matter, even assuming for the sake of argument that the second respondent had no jurisdiction and any such order by this Court would be only a futile and unnecessary exercise which is not called for in the facts and circumstances of the case.
14. In the result, there are no merits in the writ appeal and the same is dismissed.