The applicability of the Employees Provident Funds Act, 1952 to a particular establishment depends on the determination of basic facts, such as the number of persons employed and the nature of the industry carried on, and these facts cannot be resolved without a proper inquiry. The Commissioner has no jurisdiction to enforce the Act and the Scheme pending the decision of the Central Government under Section 19-A, as this would amount to applying the Act without due regard to the rights of persons claiming immunity from the Act.

ORDER :- This is a petition under Art. 226 of the Constitution wherein the petitioners pray for the issue of a writ of Mandamus or other appropriate writ forbearing the respondent, the Regional Provident Fund Commissioner, Madras, from enforcing the provisions of the Employees Provident Funds Act, 1952 (Act XIX of 1952) and the Scheme framed thereunder, against them. I shall refer to Act XIX of 1952 as the Act in this judgment.

2. The petitioners constitute a firm of partnership carrying on the business of manufacture and sale of brass and copper vessels in the village of Pallathur in Ramanathapuram district. They purchase brass and copper sheets and circles from the market, and turn these raw materials into household vessels and utensils by employing manual labour. The products so shaped and turned into wares are polished with the aid of electric motor of 6 H. P. According to the petitioners there are only three employees under them who do the packing and despatch of the finished wares. The workers who hammer and shape the sheets and circles into finished products are alleged to be not employees under the petitioners but individuals doing the work on some contract basis. This contract is vaguely set out in paragraph 3 of the petitioners affidavit in the following terms :

"The metal workers turn out unpolished vessels from the sheets and circles supplied to them according to their will and capacity by beating the plates into shape and are paid per piece of work at the prevailing wage rates, and this at present works out on an average to 3 annas per seer of metal according to the vessel made varying with the shape and nature of the vessel and with due regard to the labour likely to be involved in the production thereof."

These workers are alleged to be, to quote the language of the affidavit, "more or less in the nature of independent contractors".

3. The Inspector, functioning under the Act, visited the establishment on 2-2-1960. He was furnished by the petitioners with such information as he wanted in regard to the manufacturing process involved in the production of the metal wares and the number of employees working in the establishment. On the report furnished by the Inspector, the Regional Provident Fund Commissioner informed the petitioners by his letter dated 26-2-1960 that the establishment of the petitioners came within the ambit of the Act. That communication, in so far as it is relevant for the present purpose, reads as follows :

"Your factory comes under the purview of the Employees Provident Funds Act 1952, and the Scheme framed thereunder from 1-2-1959 as it is engaged in Electrical, Mechanical and General Engineering (products?). One of the industries mentioned in Schedule I to the Employees Provident Funds Act, 1952, has completed three years from the date of commencement of production before 31-1-1959 and has employed 50 or more persons before 31-1-1959."

The rest of the communication instructs the petitioners as to what they should do in future towards fulfilment of the provisions and terms of the Act and the Scheme.

4. The petitioners sent a reply to the Commissioner on 4-3-1960. They submitted that they were running only "a cottage industry" that the industry cannot be described as "electrical, mechanical and general engineering" as set out in Schedule 1 of the Act, that except 5 persons who were employed on a monthly salary, the other workers were not employees at all, as the term is defined under the Act and that therefore the Commissioner should not apply the Act to them. The Commissioner sent a further communication to the petitioners on 6-4-1960 reiterating his view, that the petitioners business employment fell within the Act and advising them in their own interest to implement the Act and the scheme. By another communication dated 20-4-1960 the Commissioner insisted that the petitioners should make the remittances as per the Act and submit the returns on or before 30-4-1960. Thereupon the petitione