Continuity of fifty persons in the factory not envisaged.

Ramachandra Ayyar, C.J.

This is an appeal from the judgment of Veeraswami, J., upholding in part the demand made by the Regional Provident Fund Commissioner upon the appellant for payment of the employer's contribution for the period from 1 March, 1954 to 31 March, 1958, in accordance with the scheme framed under the Employees' Provident Funds Act of 1952.

The appellant is a private limited company running a factory for the manufacture of waterproof packing paper and tarpaulin. The process adopted in manufacturing the first article is described to be to smear with tar a sheet of paper and then superimpose another like sheet and press them together. The product, it is claimed, has the qualities of waterproof paper with the advantage of flexibility. The other produce, tarpaulin, is manufactured by treating jute gunnies with tar. According to the appellant the number of workers in the factory did not exceed fifty except on one day in each year during the relevant period. The Regional Provident Fund Commissioner called upon the company by his notice dated 11 April, 1958 to pay the contribution payable by the employer and also the administration charges and damages.

So far as the latter two claims are concerned, the learned Judge has held that the Regional Provident Fund Commissioner would not be entitled to recover them from the appellant. We told that forms the subject-matter of another appeal and it is unnecessary to deal with it now.

In regard to the claim for the employer's share of the provident fund, the contention of Sri Swaminathan for the appellant is two-fold. Firstly, he said that the place where the manufacture is done cannot be held to be a factory coming within the scope of the Employees' Provident Fund Act, and, secondly, that the Provident Fund Commissioner would have no power to claim contribution for a period anterior to 11 April, 1958, when he issued the notice. So far as the latter portion of argument is concerned, we need only refer to what is contained in the learned Judge's judgment where he said that the appellant through counsel expressed willingness to abide by the direction of the Regional Provident Fund Commissioner to remit arrears of the employer's contribution for the period in question. On that admission we do not see how it will be competent for the learned counsel here to agitate the matter over again.There still remains the other question which relates to the liability of the appellant to pay the provident fund. Such liability is disputes on two grounds. First, that the premises will not be factory within the meaning of the Act and secondly that the factory did not have fifty employees throughout the year. The contention under the first head is like this that the article manufactured by the appellant is not one of those that are mentioned in Sch. I to the Act, and therefore the provisions of the Act will not apply to it. To appreciate the contention it is necessary to refer to certain provisions of the Act as they existed during the material period. Section 1, Cl. (3), which speaks of the application of Act, provides in Sub-cl. (a) that it would apply to every establishment which is a factory engaged in any industry specified in Sch. I and in which fifty or more persons are employed. Item (5) in Sch. I is paper and item (6) is textiles. An explanation has been provided to the schedule which states under Cl. (c) thereof thus :

"The expression 'paper' includes pulp paper board and strawboard."

Clause (d) states :

"The expression 'textiles' includes the products of carding, spinning, weaving finishing, and dyeing yarn and fabrics, printing, knitting and embroidering." *

It is argued by Sri Swaminathan that the products manufactured by the appellant can neither be paper nor textiles even within the terms of the explanation. Superficially considered that undoubtedly appears so, for the waterproof paper manufactured in the appellant's factory cannot be regarded as paper board or strawboard. Nor ca