ORDER P.C. Chanda & Company (Pvt.) Limited (hereinafter referred to 81 the said Company). is One incorporated under the Indian Companies Act and carries on business Inter alta of manufacturing and sale of paints, pigments and varnishes with its registered office at Budge Budge Road, (7. Taratalla Road extension), Calcutta 60 In this Rule, the said Company has impeached orders and notices in Annexures B. C. D and E to the petition and the ultimate order or notice in Annexure F. The particulars of the above order would be mentioned hereafter. 2. It is the case of the said Company that apart from its Head office at Budge, Budge Road as mentioned above, it has its factory at 31, Harekrishna Tagore Road Calcutta -36, Sales/Branch Offices at Calcutta, Bombay and Delhi. It is the further case of the said Company that the above establishments viz , the Head office, Factory and the Sale /Branch Offices are independent units having separate administration and accounts. It has been stated that the employees at the Factory, are engaged in the manufacturing process of the Company's products and sale of such products are hot trade ex- factory. Such sale it has been stated, are conducted by the Sales/Branch Offices as aforesaid and as would appear from the statements as made hereinbefore, those Sales/Branch Office. are scattered in different puts of India It has been categorically stated by the said Company that its factory has no concern with or control over the Sale and the staff as employed at the Sales/Branch Offices. In fact, Salses/Branch Offices, it has been contended have no nexus with the Factory of the said Company. These apart the said Company has stated that the staff employed by the Sales/Branch Offices, have nothing to do with the purchase of new material or the manufacturing process carried on at the said Company's factory nor are they in any way connected with the administration of the said Company's factory. It has also been contended that the nature of the duties of the state employed by the Sales/Branch Office are neither identical to nor connected with that of the of the factory nor with the manufacturing process as carried on therein apart from the fact that the services of the employees as employed are not interchangeable. 3. It has also been contended that the nature of the duties of the state employed by the Sales/Branch Office are neither identical to nor connected with that of the of the factory nor with the manufacturing process as carried on therein apart from the fact that the services of the employees as employed are not interchangeable. 3. It is also the categorical case of the said Company that its factory has its own muster rolls which do not contain the names of staff appointed at the Head Office nor the names of those who are appointed at the Sales/Branch Offices through about the country. In fact the said Company ball stated that in Head Office, and Sale/Branch Offices, are separate entities and establishments and are registered under the local Shops and Establishments Acts in the respective States. It is also the specific case of the Company that the employee engaged by them in their factories are covered by the Employees Slate Insurance Scheme and they have been implementing such scheme to the extent of the employees as engaged in their factory. It should be noted here that S. 1(4) of the Employees State Insurance Act, 1948 (here in after referred to as the said Act). Provides that the same would apply in the first instance to all factories other than the seasonal factories and S. 1(5) of the same provides that the appropriate Government may by notification extend the provisions of the said Act to any other establishments. It is the case of the said Company that no notification under S. 1(5) of the said Act has been issued. 4. There is no doubt that by the Employees' State Insurance Amendment Act. 1956, (Act No. 44 of 1966, S 2(9), which relates to the definition of the term "Employee" was amended and by such amendment the definition of the said terms "Employee" is purported to have been widened to include "any person employed for wages or any work connected with the administration of the factory or the establishment or any part, the Department or the Branch thereof, or the purchase of raw materials for, of the distribution of sale of the factory of establishments" ............'. This amendment was brought into effect on and from 28th January 1968. This amendment was brought into effect on and from 28th January 1968. It has been stated by the said Company that until the enforcement of the said amendment, it wall an admitted case of all including that of the State Insurance Department that the staff employed in the said Company's Head Office and Sales Branch Offices were not covered by the provisions of the said Act. The said Company has stated that after the incorporation of the amendment as aforesaid disputes arose as to whether the staff employed in the Held Office and the Regional Offices who are not in the muster rolls of the factory and not working there would be covered by the provisions of the amended definition as aforesaid and the said Company has stated that at all material times they contended and still they are contending that the state employed in the Head Office and Sales/Branch Office would not be covered by the amended definition of the term employees" . 5. After the incorporation of the amendment as aforesaid the said Company was served with the impugned notice in Annexure "B" which is dated 14th August, 1973 and whereby the Regional Director, West Bengal of the Employees State Insurance corporation has directed the Company to pay employers' special contribution, to pay the employees' contribution and to submit the return under the said Act and the regulations as framed thereunder with effect from 28th January. 1968. The said Company also received the impuged notice in Annexure "C" which is again dated 14th August, 1973 and whereby they were charged, for not paying the employees contribution for a period from 28th September, 1968 to 27th January, 1973, in respect of the employees at their Head Office and Sale/Branch Offices. These apart, by the notice in question it was demanded of the laid Company to pay the employee's contribution with interest, failing which they were threatened with legal action including prosecution. By another notice in Annexure "D", which is also of 14th August. 1973, the Regional Director concerned of the Employees State Insurance Corporation appears to have accused the said Company for not making payment of the employers special contribution for the period from 31st March. 1968 to 30th June. By another notice in Annexure "D", which is also of 14th August. 1973, the Regional Director concerned of the Employees State Insurance Corporation appears to have accused the said Company for not making payment of the employers special contribution for the period from 31st March. 1968 to 30th June. 1973, in respect of the employees employed in their Head Office and It was demanded of them to pay such special contribution for the period in question with interest thereafter, the said Company received the impugned notice in Annexure “E". which is also of 14th August 1973 and thereby, they were directed to comply with the provisions of the said Act and the regulations made there under in respect of the employer employed in their Branch office at Delhi and Bombay, with effect from 28th January, 1968, and ultimately on the basis of there alleged or purported failure to take appropriate steps in terms of the demand as mentioned above the impugned order. In Annexure "F" which is of 15th March, 1974. was issued directing the said Company again to implement the provisions of the said Act. in respect of their employees employed at the Head. Office and Sale (Branch Office, failing which. a threat to take legal action was also given. 6. It has been stated that in view of such threat and to avoid the same the said Company was compelled to pay Rs. 2000/- on account such payments has also alleged to have been made under compulsion and duress and not of their own. In fact, it bal been contended by the said Company in this proceeding that without a notification under S. 1(5) of the said Act the provisions of the same could not be extended to the employees at Head Office or Branch/Sales Office and as such, the said Company has categorically contended that the issue of the notice in Annexure F as referred to herein before and that too on the basis as mentioned above, was illegal and the demand as made, was also without jurisdiction, inoperative, void and ultra vires the said Act. 7. The answering respondents in their affidavit dated 22nd January, 1976 which has been filed through Kali Prasad Bhatta. 7. The answering respondents in their affidavit dated 22nd January, 1976 which has been filed through Kali Prasad Bhatta. Insurance Inspector of Employees State Insurance Corporation have stated that although the Head Office, Factory and Sales/Branch Officer of the said Company are situated at different places the works done or performed by the employee working in the Head Office and Sales/Branch Offices of the said Company are directly connected with the works of the factory. It has been contended that after the amendment as incorporated in S. 2(9) of the said Act, employee. working in the Head Office and Sales/Branch Offices of the said Company would come within the purview of the said Act, as work done by them are directly connected with the works of the factory. the deponent of this affidavit has denied that the Sales/Branch Offices' staff of the said Company have no nexus with the factory or the works therein as alleged it has been stated that the natural of duties of the staff employed by the Sales/Branch Offices are neither incidental to nor connected with the factory nor with the manufacturing process carried on by the said Company, The respondent to this affidavit has also contended that with the enforcement of the said Act. The said Company's factory was covered under the same and no notification under S. (15), as contended was required to being the employees working in (he Head Office and sales/Branch Offices, under the purview of the said Act. to fact, it has been denied that the employees of the Head Office and the Sales/Branch Office of the said Company are working independently under different establishments, which are not connected with the said Company factory. It has been stated that the works done by the employees working in the Head Office and Sales/Branch Office of the said Company, are directly connected with the works of the factory and the employees of their Sales/Branch Offices are engaged with the sales of the products of the factory of the said Company. In view of the statements as mentioned above. it has been stated that the said Company was that duly directed to comply with the provisions of the said Act in respect of the employees working in the Sales/Branch Offices of the said Company. 8. In view of the statements as mentioned above. it has been stated that the said Company was that duly directed to comply with the provisions of the said Act in respect of the employees working in the Sales/Branch Offices of the said Company. 8. The deponent has further claimed that the said Company, in view of the facts and circumstances of the case could not legally claim to have the refund of the sum of Rs. 2,000/-, which has been paid in the circumstances as mentioned above. It has been stated that the said Company was and illegally bound to pay all the dues payable by them to the employees to the State Insurance Corporation in respect of employees working in the Head Office and Sale,/Branch Offices and in default, the Regional Director concerned would be legally empowered to take necessary steps for the recovery of the dues. The notices as impeached, have been claimed to be due and issued with authority power and competence and it has also been claimed that there has been no illegality or any irregularity in them. Those apart the deponent has imputed mala fide intention against the said Company in moving the present application and has alleged that such action has been taken to delay the recovery of arrear dues and to make undue profits out of the same. 9. The allegations and statements as made or raised in the affidavit as referred to hereinbefore have been categorically denied again by the said Company in their affidavit in reply dated 27th March. 1978 and therein they have once more reiterated their stand as in the petition of motion. the particular whereof have been mentioned harein before 10. Before entering into the merits of the contentions of the respective parties, it should be noted that the effect of S. 2(9) as amended, came up for considerations before the Full Bench determinations of this Court in the cases of the India Jute Company Ltd. v. The Regional Director, West Bengal Region Employees State Insurance Corporation & Ors., AIR 1977 Cal. 258 (: 1977 CHN 181) and Sen Releigh Ltd. v. Employees State Insurance Corporation & Ors, AIR 1977 Cal. 165 (: 1977 CHN 184) and in the first case as mentioned above, it has been observed that : the definition of "employees'• in S. 2(9) a amended in 1966 is an exhaustive one. 258 (: 1977 CHN 181) and Sen Releigh Ltd. v. Employees State Insurance Corporation & Ors, AIR 1977 Cal. 165 (: 1977 CHN 184) and in the first case as mentioned above, it has been observed that : the definition of "employees'• in S. 2(9) a amended in 1966 is an exhaustive one. It is a beneficial piece of legislation and it had to be given a meaning that would give benefic to those for whom it is intended. After the amendment the administrative staff engaged in purchase of raw materials or the distribution or sale of the products of a factory whether the work is done in the factory or elsewhere would be 'employees' within the Act. Section 38 of the Act, docs not appear to be an impediment. This section opens with the words "subject to the provisions of this Act. These words bring within their cope the amended definition of employee.' There is therefore. no difficulty in covering employees who are not actually working in the factory premises provided that they do any type of work specified in S. 2(9) as it now stands.” apart from holding that : persons who are employed in registered office at Calcutta, of a Company running jute and cotton factory elsewhere and who are engaged in types of work referred to in S. 2(9). are employees within the Act. In the other case as referred to hereinbefore, it has also been observed that where the head office and the factory are situate at different places the employees in the head office. who are engaged in any type of work specified in S 2(9) of the employees State Insurance Act. Even where the head office is at Calcutta where the provisional of the Act are applicable and the factory is at Asansol the employees in head office will be "employees" within the meaning of S. 2(9) of the Act. Ch, V.A. came into operation in the whole of India except Jammu and Kashmir on the 24th November. 1951. It ceased to have effect on the 1st July, 1973. Consequently demand by Employees State Insurance Corporation from 28-1-1968 to 30.6.1968 is justified inasmuch as it is entitled to demand employer's special contribution till at least upto 30.6.1973. 11. In view of the above determinations it was also contended by Mr. 1951. It ceased to have effect on the 1st July, 1973. Consequently demand by Employees State Insurance Corporation from 28-1-1968 to 30.6.1968 is justified inasmuch as it is entitled to demand employer's special contribution till at least upto 30.6.1973. 11. In view of the above determinations it was also contended by Mr. Mukherjee, appearing on behalf of the Respondents that there is no scope for any further interpretation of S. 2(9) and as such there would also be no justification or any jurisdiction to entertain the present proceedings or to make any determination. In fact, it was contended by him that no determination is either necessary or would be appropriate. Mr. Das appearing in support of the Rule contended that ordinarily, on the basis of the determinations as referred to hereinbefore no further determination on the effect of the incorporation, would be required or would be necessary. But since the point whether and if at all a notification under S. 1(5) would be necessary or not and which according to him would still be necessary, has not been appropriately decided so even in spite of the said Full Bench determinations, this Court would have jurisdiction to adjudicate on the point and make necessary determination on the points at issue. It was in fact contended by Mr. Das that the Full Bench determinations all referred to hereinbefore, have really decided the question of S 2(9) and not on the notification on S. 1(5) of the said Act. 12. Mr. Das, appearing in support of the Rule after referring to the Scheme of the said Act and the relevant section of the same and so also to the provisions of the Employees State Insurance (General) Regulations, 1990 (hereinafter referred to as the said Regulation), wanted to establish that the operation of the said Act is no Factory and not Establishment wise. On a reference to S 2(17) of the said Act and so also 2(g) of the said Regulations, it was contended by him that there could be two types of employers viz., "Principal employer" and "immediate employer" in an establishment and be also referred to S. 45, 45B and Regulations 10B, 11. 14,31,32 and 102A. for the purpose of establishing the proposition as mentioned above. He contended that to obviate the difficulties and to meet all possible exigencies and circumstance extension of the said Act. 14,31,32 and 102A. for the purpose of establishing the proposition as mentioned above. He contended that to obviate the difficulties and to meet all possible exigencies and circumstance extension of the said Act. to all concerned is thus required under S. 1(5) of the said Act, which lays down that the appropriate Government may, in consultation with the Corporation and where the appropriate Government is a State Government with the approval of the Central Government after giving six months notices of its intention of so doing, by notification in the Official Gazette, extend the provisions of this Act or any of them to any other establishment or any of establishments, industrial commercial, agricultural or otherwise. It was also contended by Mr. Das that the said Act, without the necessary notification under S. 1(5). would have only application in Factories and such point, he also wanted to support with reference to S. 1(4), which requires that the said Act shall apply, in the first instance to all factories (including factories belonging to the Government other than seasonal factories Mr. Das submitted that since difficulties were experienced in the matter and the determinations on the point were not uniform, so the Full Bench determinations as mentioned above were required and even such determinations have not resolved the points in dispute, as those determination have not duly or properly answered the question whether extension of the said Act by notification under S. 1(5) is necessary. 13. To establish the arguments. Mr. Das initially referred to the judgment and order dated 12th March 1975, in Matter No. 343 of 1970 Gestetner Duplicator Private Limited v. Employees State Insurance corporation & Ors.,) by A. N. Sen J. In this case, the learned Judge, has considered the determinations in the cases of (1) Sri Ramprasad Chatterjee v. Employees Corporation & Anr., (Matter No. 738 of 1968). decided on 8th May 1970(2) Shakti Ranjan Roy & Ors. v. Employees State Insurance Corporation & Ors., (Matter No. 35 of 1969), decided on 19th November 1971 by Sabayasachi Mukharji J, (3) Central (P) Ltd. Regional Director & Ors., (Metter No. 186 of 1970) decided by S.C. Deb J. on 6th September 1972, (4) Andrew Yule & Company Ltd, y Employees State Insurance Corporation & Anr., (Matter No. 342 of 1972). Judgment delivered on 3rd December 1972 by D Pal J., and that of (5) Lakshman Chandra Das & Ors. Judgment delivered on 3rd December 1972 by D Pal J., and that of (5) Lakshman Chandra Das & Ors. v. Employees State Insurance Corporation & Ors., a determination by Masud J. as affirmed in Appeal No. 119 of 1974. apart from the cases on the point by other High Courts and on a review of them, came to the conclusion that there was divergence of judicial opinion on the question, and as such, referred the point to be decided by a larger Bench of two or more Judge Such reference was made in forms to the provisions of Chapter V Rule 2 of the Original Side Rules, which requires that where it shall appear to any Judge, either on application of a party or otherwise that a suit or matter can be more advantageously heard by a Bench of two or more Judges, he may report to that effect to the Chief Justice, who shall make such order thereon as be shall think fit. 14. The view expressed by A.N. Sen J. on the effect or otherwise of the absence of notification under S. 1(5) while referring the matter, to my mind, would be relevant and the same. I think, should be reproduced as argument have been advance that such doubt as arguments have been advanced that such doubt as expressed by the learned Judge has neither been resolved nor answered by the Full bench. In the opinion of A.N. Sen J., in the absence of a notification under S. 1(5) of the said Act the provisions as contained therein could not be made applicable to establishments other than factories. In the opinion of A.N. Sen J., in the absence of a notification under S. 1(5) of the said Act the provisions as contained therein could not be made applicable to establishments other than factories. It has further been expressed by the learned Judge that the provisions of the said Act could not be applied to any and every establishment only on the basis the Companies of the said establishment are covered by the definition of the word "employee" As defined in S. 2(a) before or after the amendment of the same it has been observed by him that the definition of the word "employee" becomes material and can only apply, if the said Act is otherwise applicable since under S. 1(2), the said Act in applicable to the whole of India except the State of Jammu and Kashmir and under S. 1(4), the applicability of the same is restricted only to all factories (including factories belonging to the Government) other than seasonal factories, the learned Judge has posed the question whether the said Ace can be 'made applicable to any employee at Jammu and Kashmir, even if the persons employed there, may be an employee within the meaning of the said Act or can the said Act be made applicable to establishments other than factories, whether the employees of the other establishments conform to the definition of employees as given in S. 2(9). 15. It has been observed by the learned Judge that in the first case, there cannot be any question, that the provision of the said Act will have no application to employees at Jammu and Kashmir. even though they may be fully covered by the definition under S. 2(9) and in the record case by virtue of the specific limitations as to the applicability and operation of the laid Act of factories only, the same would not have any application to establishments other than factories whether the employees in the other establishments conform to the definition of the word "employee" in S. 2(9). It has also been observed that the definition of the word "employee", "only comes for consideration and would be relevant once the said Act II applicable. It has also been observed that the definition of the word "employee", "only comes for consideration and would be relevant once the said Act II applicable. It has further been observed by the learned Judge that even in case of a factory, to which the said Act applies each and every employee of the same may not come under the purview and only those who come within the definition of the word "employee" would be covered. It has also been pointed out that on the question as to whether the provisions of the laid Act would apply, when the same is otherwise applicable to the establishments and the employees therein come within the definition in S 2(9) and the said Act can be made applicable to establishments other than factories by complying with the requirements laid dawn in S. 1(5). Other establishments according to the learned Judge would mean and include establishments other than factories and seasonal factories as defined in the aid Act, in view of the definition of factory and seasonal factory in S. 2(12). It has also been observed that in view of the provision in S.1(4), the said Act would have no application to seasonal factory and necessarily therefore any employee of a seassona1 factory, who may be an employee within the meaning of the word" "employee" in S. 2(9) would not come under the Purview of the said Act. According to the learned Judge in the absence of a notification under S. 1(5), the said Act would have no application to any other establishment viz. an establishment other than a factory or 11 seasonal factory and if the said Act has no application to the establishment the question whether the employees in any such establishment is covered by the definition of the word "employee" as given in the said Act would not really arise for consideration and would become Immaterial and the question whether an employee is covered by the definition, would only arise when the said Act becomes applicable. The learned Judges has also observed that the said Act applies to factories only by virtue of the provisions in S. (4) and has no application to other establishments and the said Act may be made applicable to other establishments in terms of or on following the provisions in S. 1(5) and not otherwise. The learned Judges has also observed that the said Act applies to factories only by virtue of the provisions in S. (4) and has no application to other establishments and the said Act may be made applicable to other establishments in terms of or on following the provisions in S. 1(5) and not otherwise. It has further been observed that the applicability of the said Act cannot be 'extended on the has is of definition of the word "employee" and the amendment of the definition of the term "employee " according to the learned Judge was necessary to bring the employees. who would not otherwise come on the basis of definition of 'employee" prior to the amendment within the purview of the said Act. even if the applicability of the said Act had been extended to other establishments by following the provisions contained 'in S. 1(5), as according to him even when the laid Act is made applicable to a particular establishment by following the precedence as envisaged in S. 1(5), each and every employee in the said establishment mayor may not come within the purview of the said Ace, the provision whereof would apply only to those employees, who would ' com!! within the definition of the word "employee": 16. The learned Judge has further observed that to construe the provisions of the said Act. to be applicable to employee on the basis of the amended definition only without taking into consideration the provisions contained in S.J. would result in a situation where their would arise a clear conflict between the provisions contained in S.I. and those in S. 2(9) and would render the provisional of S. 1(5) and nugatory and redundant. Such circumstances it his been observed would arise because although the definition of employee in S. 2(9) has been amended, as there has been no corresponding amendment in S.1 and S 1(5) has not at all been touched. It has been opined that in the absence of a notification under S. 1(5), harmonious construction of all the provisions would be impossible. It has been opined that in the absence of a notification under S. 1(5), harmonious construction of all the provisions would be impossible. All the afore said decisions of this Court including the reference as made by A.N. Sen J. in the case of Gestetner Duplicators Private Ltd , v Employee, State Insurance Corporation & ors Matter No. 343 of 1970), another one made by the same learned Judge in the case of the India Jute Company Ltd v. The Regional Director, West Bengal Region. Employees State Insurance Corporation & anr, (Matter No. 157 of 1973), along with the determination of the other High Courts, were considered and construed by the Full Bench of this Court in the case of The India Jute Company Ltd, v. The Regional Director West Bengal Region, Employees State Insurance Corporation & anr., (supra) and the determinations a. made, have been mentioned hereinbefore. The said determination hive also been followed and affirmed and in the other Full Bench determination in the case of Sen Raleigh Ltd v Employees State Insurance Corporation & Ors (supra), the particular of such determinations have also been mentioned hereinbefore. It should also be noted that the Special Leaved application filed against the determinations in the Case of Gestetner Duplicators (P) Ltd. v Employees State Insurance Corporation & Ors being C.M P No, 6937 of .1978, has been dismissed for non-prosecution on 3rd April 1978. 17. In view of the above position, after referring to the determinations in the case of Hyderabad Asbestos Cement Products Ltd, v. Employees' Insurance Court & Anr, AIR 1978 SC 356 ; 1978(1) SCC 194 . Mr. Das posed the question as to if and whether a notification under S 1(5) is still necessary, more particularly when the Full Bench determinations. So mention above, have decided the question on S. 2(9) as amended and not on the question of the necessity of a notification under S. 1(5). Mr Das. in fact, amongst others submitted that the difficulties and the defects as mentioned by Act. Sen, J. in his referring order in Matter No. 343 of 1970, have not been answered duly by the Full Bench determinations. Mr Das. in fact, amongst others submitted that the difficulties and the defects as mentioned by Act. Sen, J. in his referring order in Matter No. 343 of 1970, have not been answered duly by the Full Bench determinations. It was submitted by him that even if the moaning of the word "employee" as given in S 2(9) is accepted and if such meaning is repugnant to the main provision of the said Act, which the meaning as given, is, such provisions which are inconsistent should not be allowed to be acted upon or lived effect to following the determination in the case of Narsing Das Tansukdas v. Chogemull & Anr., AIR 1939 Calcutta 435, wherein amongst others it has been observed that same rules of interpretation are to be applied where two parts of the same statute are in conflict. The governing intention of ,be LCglbl4' tUfe must be found out and that part which agrees with the intention must be given effect to and the other part being rejected at repugnant The governing intention must prima facie be taken to be that expressed on the section of the statute and not in the rules framed under it. In fact, it was contended by Mr. Das that the overriding effect of the definition in S 2(9) being not on factory wise alone but also on establishment wise, S. l(5) has been duly incorporated with some specific intention of the Legislature and such intention must be given effect to viz., a notification under S 1(5) would be required to bring the establishments in mentioned, under the umbrella of the said Act, As such, it was contended by Mr. Das that without the necessary notification steps could not have bean taken to be covered by the said Act in the instant case, as there is admittedly no such notification and furthermore in the absence of such notification, the Employees State Insurance Corporation, should not be allowed to enforce the provisions of S 2(9). for supplementing his arguments, Mr Das contended that when different shops viz., factory and establishments are envisaged under the laid Act, that would also require the necessary notification under S. 1l5) and in support of such submissions, although under different statutes so relied on the determination in the case of Kalidas Dhanjibhat v. The Stale of Bombay. for supplementing his arguments, Mr Das contended that when different shops viz., factory and establishments are envisaged under the laid Act, that would also require the necessary notification under S. 1l5) and in support of such submissions, although under different statutes so relied on the determination in the case of Kalidas Dhanjibhat v. The Stale of Bombay. AIR 1955 SC 62 and those of the Full Bench of the Punjab High Court in the case of Ram Chandra Baru Ram v. The State, AIR 1962 Punjab 148. for the relevant principles. The case before the Supreme court was under the Bombay Shops and Establishment Act 1948. The meaning of the word shops as in S. 2(27) of that Act was construed and it has been observed that :. the trade or business contemplated by the main portion of the definition of 'shop' in S. 2(28) is not any business of selling where ever find however conducted but only those trades where selling is conducted in defined promises The very idea of a shop in that connotation betokens a room or a place or a building where goods are sold. The rest of the definition merely links on the main definition ancillary places, such as store roofs, godowns, work: places, etc., which are mainly used in connection with the business and "business" means the kind of business defined in the earlier part of the definition namely that portion of the business of selling which is confined to selling on some defined premises. There is no justification for ignoring the limitation which the legislature has placed on the main portion of the definition and holding that "such" relates to a much wider classification of selling which the main portion of the definition not only does not envisage but has deliberately excluded, and that in view of the way in which S. 2(27) was worded, the intention of the legislature appeared to excluded shall concerns from the purview of the Act and that this was the interpretation which better accorded with the logical construction of the words used in the section. In this case it was also contended that the purposes of the Act would be frustrated if the establishment as involved were placed outside the purview of the Act and it has been observes by the Supreme Court Chat such fear would be groundless as there are express provisions in the Act for the necessary contingencies and under S. 5, the State Government can by mere notification in the official. Gazette, extend the Act to any establishment or class of persons to which or whom the Act or any of its provision does not for the time being apply the Punjab case on the other hand deals with Punjab Shops and Commercial Establishments Act, 1958. S 2(xxv) whereof defines shops and S. 2(iv) defines Commercial establishment. It has been observed that one element is common to both the expressions that there have to be premises wherein in the case of commercial establishment any business, trade or profession is carried on for profit and in the call of a shop where any trade or business it carried on or where services are rendered to Customer. The carrying on the trade or business or profession necessarily has to have a close and intimate connection with the premises. The other requirement is that what should be carried on in those premises is trade or business or rendering of services to Customers in the case of a shop and in the case of a commercial establishment trade or business or profession has to be carried on for profit. If the element of rending Service eliminated the remaining two elements that is carrying on of trade or business are common both to a shop as well as to a commercial establishment. But a shop according to the definition does not include a commercial establishment. Therefore the same premises cannot be at the same time a shop as well as a commercial establishment. It has also been observed that the word 'Shop' is to be taken to mean a premises where trade or business is carried on in the shape of buying and "selling of good at the spot. It is rather axiomatic that in all trade it is the buying or selling which is going on in one form or the other in presenti or in future or even on speculative basis. It is rather axiomatic that in all trade it is the buying or selling which is going on in one form or the other in presenti or in future or even on speculative basis. But in a shop the buying and selling is at the premises or in other words on the spot for each consideration or may be barter, or on credit. The significant factor is the availability of the goods, there and then and so also of services. The crux of the definition of the word 'shop' in S. 2(xxx) is that the business of trade vis-a-vis the shop is the actual buying and sealing of goods and that must take place in the premises, and farther that it will be seen from the definition of a pharse 'commercial establishment" in S. 2(iv) that an integrated trade or business activity must take place at the given pro miles for profit. Activities though d connected with trade or business in premises in an isolated form like the activity of a business traveler would not make the same a commercial establishment Similarly the residence of a businessman will out become a commercial establishment merely because he is thinking out schemes and making plans to either evolve now business to enlarge the existing one No one can deny that It is business activity. To put it shortly only those premises can be said to be a commercial establishment where to mind meet to strike a business deal for profit. It is hardly material by what means they meet Any trade or business requires two or more individuals dealing with one another and if such dealing deal take place in any given premises, or is intended to take place therein, they can be said to be a commercial establishment but not otherwise. "The purpose of the meeting of the two minds has to be for profit though the profit may not be the necessary result. These apart on his arguments as above viz, the necessity of a notification under S. 1(5), Mr. "The purpose of the meeting of the two minds has to be for profit though the profit may not be the necessary result. These apart on his arguments as above viz, the necessity of a notification under S. 1(5), Mr. Das placed reliance on S. 38 of the said Act, which requires all employees to be insured and lays down that such insurance it required subject to the provisions of the laid Act It was contended by him that the all of the expression "subject to" would mean and include a notification under S. 1(5) and the said Act, in view of the character of tka petitioners would be applicable only when such notification is made. To substantiate his contention, Mr. Das referred to the determination in the case of Kartick Charan Mallick v. Harsa Mukhi Das, AIR 1943 Cal 345 and that of Katras Jharia Coal Ltd v. State of West Bengal & ors AIR 1950 Calcutta 646. 18. On a reference to the terms of Ss. 2(9). 2(13A) and 2A, wherein both the terms Factory and Establishments are mentioned or used Mr. Das stated that there is thus no dispute in coming to the conclusions that both the said contingencies are available under the laid Act and that is all the more reason why a notification under S. 1(5) is needed for the purpose of bringing under the pale of the said Act, the class of establishments as mentioned above. The above submission were made by Mr. Das for establishing that the said Act applies both on factories and establishments and the emphasis establishments. To establish further that a notification in the instant case could not have been avoided, reference was made by Mr. Das to the determinations in the else of Sub-divisional Land Reforms Officer & Ors., v. Ukhra Forest & Fisheries Ltd. 1976(2) CLJ. 336 . This case was under the west Bengal Estates Acquisition Act 1953 and related to the vesting of Forest ands and since a point arose, as to whether such forest hands on the material date had vested in the State Government in view of the provisions of West Bengal Estates Acquisition Act 1953 or in other words could such vesting, without a fresh notification under S 4. was possible and permissible it has been observed that the necessary notification was necessary and the lame could not be avoided. was possible and permissible it has been observed that the necessary notification was necessary and the lame could not be avoided. Thus, on the analogy of the determinations as above. Mr Das contended that a notification under S. 1(5) was also a must to this case, It was contended by him that it is true that the Calcutta view and that of the views of Andhra Pradesh High Court have been accepted in the case of Hydrabad Asbestos Cement Products Ltd v. Employees Insurance Court & Anr., (supra) but such view cannot be accepted as laying down the law as we are not aware of the facts or the terms of reference in the Hyderabad case and more particularly when the Calcutta case have not admittedly decided or determined on the question of S. 1(5). Such argument was advanced by Mr. Das as strong reliance was placed on the said determinations of the Supreme Court of India, by Mr. Mukherjee, appearing for the Respondents. 19. Mr. Devesh Chandra Mukherjee appearing for the Respondents denied and disputed the submissions of Mr. Das and has contended that after the Full Bench determinations of this Court at referred to hereinbefore which again have ultimately been quoted with approval by the Supreme Court in the case of Hyderabad Asbestos Cement Products Ltd v. Employees Insurance Court & Ors. (supra), there is no scope for the arguments of Mr Das and more particularly those arguments as advanced on S. 1(5); In fact, he contended that the definition of "employees" as it is now, would mean wherever connected with the manufacture, sale, purchase, and procurement of business and as such also, there is no scope of for interference in this case and that too on the argument as advanced. He contended that there is difference between the definition of factory under the Factories Act and the said Act. In fact factory has been defined in S. 2(12) of the said Act but there is no definition of Establishment, but the same has a reference only in Regulation 2(i), which incorporations that Factory or Establishment means a factory or establishment to which the Act applies. It was also contended by Mr. Mukherjee that "Establishment is not a factory under the said Act. As mentioned hereinbefore. Mr. Mukherjee" for meeting the arguments of Mr. It was also contended by Mr. Mukherjee that "Establishment is not a factory under the said Act. As mentioned hereinbefore. Mr. Mukherjee" for meeting the arguments of Mr. Das, on the necessity of a notification under S. 1(5), referred to all the determination of this Court as referred to in the judgment or order in Matter No. 343 of 1970 (Gestetner Duplicators private Ltd. v. Employees State Insurance Corporation & Ors, 1, by A.N. Sen J. and contended that such arguments on S. 1(5) have been duly construed by the Full Bench judgment of this Court mentioned above and more particularly in the case of The India Jute Co. Ltd. V. The Regional Director, West Bengal Region Employees State Insurance Corporation & anr. (supra). where it has been observed that. The definition of "employee" in S. 2(9) as amended in 1966 is an exhaustive one. It is a beneficial piece of legislation and it had to be given a meaning that would live benefit to those for whom it is intended. After the amendment the administrative staff engaged in purchase of raw materials or the distribution or sale of the product of a factory whether the work is doss in the factory or else where would be "employee' within the Act. Section 38 of the Act. does not appear to be an impediment. This section opens with the words subjects to the provisions of this Act." These word bring within their scope the a mended definition of employee". There is therefore". no difficulty in covering employees who are not actually working in the factory premises provided that they do any type of work specified in S. 2(9) as it now stand. Mr. Mukherjee has of courts in his usual fairness, stated that in the case as mentioned above there is of course no definite finding that notification under S. 1(5) is not required. But he contended that since the arguments on S.1(5) as made in the other concerned determinations, have been duly referred to and no determination has been made accepting such arguments so by implication, it must be observed that the answers to such arguments on S. 1(5) were in the negative. 20. It was also contended by Mr. But he contended that since the arguments on S.1(5) as made in the other concerned determinations, have been duly referred to and no determination has been made accepting such arguments so by implication, it must be observed that the answers to such arguments on S. 1(5) were in the negative. 20. It was also contended by Mr. Mukherjee that if the above full Bench decision is read and construed along with the full Bench determination in the case of Sen Raleigh Ltd v. Employees State Insurance Corporation & Ors, (supra), it would be established that no separate notification under S. 1(5) is required any longer. It was also contended by Mr. Mukherjee, with reference Co the application for leave Co. appeal to the Supreme Court of India under Article 133(1)(a) and (b) of the Constitution of India in Matter No. 343 of , 1970 (Gestetner Duplicators Private Ltd. v Employees. State Insurance Corporation & Or,), which as mentioned hereinbefore, has not only been rejected here but also before the Supreme Court, in an application under Article 136 and so also the petition being Civil Msc. Petition No. 4112 of 1977 in Special Leave Petition (civil) No. 2488 of 1977 M/S Union Carbide. India Ltd Employees State Insurance Corporation & Ors. by the determination in AIR 1978 SC 350, that the points regarding S. 1(5) as urged now was specifically taken or was in issue, but even the same has not been accepted, rather such point has been by implication negatived and as such this Court would not now be justified in making any determination on the same the effect of such non-acceptance of the point by the Supreme Court according to Mr. Mukherjee, was the virtue determination of the same against the petitioner in this case and the same is no longer open to be argued to fact, he, with other particulars wanted to establish that subsequently this point arose in several proceedings, but this Court has not made any interference, following the determinations and principles as mentioned above. The case of u/s Union Carbide (India) Ltd. v. The Employee State Insurance Corporation & Ors, was heard and disposed of by the Supreme Court along with the case of Hyderabad Asbestos (cement Products Ltd, v. Employees Insurance Court & Anr, along with another case viz., Foods. The case of u/s Union Carbide (India) Ltd. v. The Employee State Insurance Corporation & Ors, was heard and disposed of by the Supreme Court along with the case of Hyderabad Asbestos (cement Products Ltd, v. Employees Insurance Court & Anr, along with another case viz., Foods. Fats Fertilisers Ltd v. The Regional Director, Employees State Insurance Corporation and while dealing with the character of employees in It factory it has been observed that Section 38 of the Employees State Insurance Act, 1948, lays down that all employees in factories or establishments to which the Act applies shall be injured in the manner provided by the Act. The appellant contended that a distinction and branch offices which are the subject-matter of the appeal and which are concerned with marketing and administrative work are in the nature of establishments and cannot be brought within the purview of factories and that in Order to bring an employee within the scope of the Act he should not only be an employees within the meaning of S. 2(9) of the Act, but should also be an employee of a factory (which is defined in S. 2(12) of the Act) that is, the Act applies only to employee in factories and not to employees who were concerned with the work of the factory. Section 39 provides that the contribution payable under the Act is in respect of an employee. It is not confined only, employees In factories. There is no justification for reading the word "employees in factories" in S. 38 as meaning persons employed in factories only. In Nazpur Electric Light & Power Co. Ltd v Regional Director Employees State Insurance Corporation ( AIR 1967 SC 1364 ) the Supreme Court-held that any employee who is connected with the work of the factory would be an employee under S. 2(9) whether he works within the factory or outside its premises the section, after its amendment on January 28, 1968 by Act 44 of 1966 includes any person employed for wage on any work connected with the administration of the factory or any part, department or branch thereof or with the purchase of raw-materials or for the distribution or sale of product of the factory. Thus work connected with the administration of the factory the purchase of raw material and the distribution or sale of products are brought into the scope of the definition. Thus work connected with the administration of the factory the purchase of raw material and the distribution or sale of products are brought into the scope of the definition. After the amendment therefore the plea that an employee employed in connection with the administration of the factory or with the purchase of raw material or distribution or sale of products does not fall within the definition cannot be raised. Reading the relevant section at a whole, the word "employee" 'would, therefore, include not only persons employed in the factory but also persons connected with the work of the factory, The employee may be working within the factory or outside it or may be employed for administrative purpose or purchase of raw materials or for the sale of finished goods and all such employee are included within the definition of employee. 21. It is true that the difficulties as pointed out by A.N. Sen J. in Matter No. 343 of 1970 (Gestetner Duplicator Private Ltd.) Employees State Insurance Corporation & Ors., have not been directly or properly dealt with or answered in the Full Bench determinations of this Court as referred to hereinbefore and the effect of such not answering the reference has been laid down to the Full Bench decision of the Travancore Cochin High Court to the cases of Kumaran Rama Panicker v. Varlathu Guseph, AIR 1953 TC 77 and Pannathl Ammal v. Sivagannam Pillal & Anr. AIR 1954 TC 526 In the first case as mentioned above It has been observed that: when specific questions of law are referred to the Full Bench for decision the Full Bench is bound to give its verdict on these question. irrespective of any consideration as to whether the question are separately and Independently referred or whether the questions are referred along with the case whict1 give rise to the order of Reference where the case is also referred the Full Bench will have to decide the case in the light of the answers to the question referred and on a consideration of the evidence on record. Even if the questions of law referred to the Full Bench for decisions do not strictly arise from the facts of the case, the decision of the Full Bench on those questions can never be relegated to this position of "obiter dicta". Even if the questions of law referred to the Full Bench for decisions do not strictly arise from the facts of the case, the decision of the Full Bench on those questions can never be relegated to this position of "obiter dicta". On the other hand the decision will have to be accepted as the authoritative ruling of the Full Bench on the question which it has expressly called upon to decide. In the second case, it has also been laid down has it is the duty of the Full Bench to give a clear and definite answer Co. the question. The answer should not be in the form of alternatives. 22. The reference in Matter No. 343 of 1970 was admittedly made under Chapter V Rule 2 of the Original Side Rules, the terms whereof have already been mentioned hereinbefore. Thus, in terms of the reference, there cannot be any doubt or dispute that the entire case was referred for determination and the full Bench was authorised to determine the issues as involved on the basis of the available pleadings. I have no hesitation in holding and as mentioned above that the point whether a notification under. S. 1(5) of the said Act. even though the same wall an issue before the full Bench of this Court, has not been answered directly or definitely. But even is spite of such observations. I feel that because of the fact that subsequently the point in respect of S. 1(5), became an issue before the Supreme Court in the case of Mr. Union Carbide India Ltd, employees State Insurance Corporation & Ors., decided along with the Case of Hyderabad Asbestor Cement Products Ltd. " Employees Insurance Court & Anr, (supra) and there, even in spite of the following grounds amongst others being specifically taken viz., i) ............ ............ .... ............ ........ ii)........ ............ ....... ......... .... ........ iii) ........ ............................ ............ iv)........ .... .................... ............... v).... .................... ............ ............ vi)................ ................ ................ vii)................ ................ ........ ........ viii)............ .................... ................ ix) for that their Lordships should have held that inasmuch as the provisions of the Act has been extended only to the factory establishment by virtue of S. 1(4) of the Act, the same is not applicable to any other establishment except the factory establishment without a notification being issued under S. 1(5) of the Act. ........ viii)............ .................... ................ ix) for that their Lordships should have held that inasmuch as the provisions of the Act has been extended only to the factory establishment by virtue of S. 1(4) of the Act, the same is not applicable to any other establishment except the factory establishment without a notification being issued under S. 1(5) of the Act. x) for that their Lordships failed to appreciate that S. 38 of the Act which provides that "All employees in factories or establishments to which this Act applies are to be insured has to be read along with S.1 of the Act, meaning thereby that all employees of the factories in absence of any notification under S 1(5) can only be insured. xi).................................................... Xii) .... ............ ................ .... .... ........ .... the Supreme Court has not accepted such argument and that apart, the other Civil Miscellaneous Petition No 6937 of 1978 (Gestetner Duplicators (P) Ltd, Employees State Insurance Corporation & Ors, wherein the same points amongst other. were involved, has also been dismissed, of course for non prosecution on 3rd April 1978 the point Cannot be answered in favour of the petitioners. 23. So, in view of the above and also in view of the determinations in the case or Hyderabad Asbestos Cement Products Ltd. V. Employees Insurance Court & Anr., (supra), I find that there is no further scope for urging the question of absence of notification under S. 1(5) of the said Act. As such the argument of Mr. Das on that ground fail. It should be noted that the recording which I have referred to hereinbefore, were produced by Mr. Mukherjee also produced certain notifications regarding coverage under S. 1(5) issued in 1975 and .976 and that also emboldened Mr. Das in making his submissions on S. 1(5). But to my view these notifications would be of no help or any assistance in this case as they were issued prior to the Full Bench decisions of this Court and the subsequent determinations by the Supreme Court. 24. It should also be recorded that Mr. Das, on a further reference to Ss. 1(4), 1(5), 38, 40, 43, 44 and 45, apart from Regulations 10B, 11, 13, 14, and 15, wanted to argue on repugnancy of S. 2(9) as amended. 24. It should also be recorded that Mr. Das, on a further reference to Ss. 1(4), 1(5), 38, 40, 43, 44 and 45, apart from Regulations 10B, 11, 13, 14, and 15, wanted to argue on repugnancy of S. 2(9) as amended. It was in fact argued by him that the point regarding repugnancy and ultra vires, no being argued in the earlier determinations, they should not create any fetter or bar on this Court's jurisdiction to interfere and decide the issues as involved. It was submitted by him that the said provision as amended, has created discrimination amongst two classes of employees and such discrimination would also be apparent on a reference to S. 88 of the laid Act, which deal with exemption of persons or a class of potion I. These were no tact submissions advanced by him in support of hi, contentions that. 2(9) as amended, is not only repugnant to the other provisions of the Statute but the same is also violative of Article 14 of the Constitution, Mr. Mukherjee, after placing the actions as mentioned above contended thus to view of the Scheme of the said Act and the underlying principle involved, S. 2(9) as amended, cannot be considered as repugnant to the other provisions, the more so when by such incorporation, contractual relationship, which is the basic character under the said Act, has not been altered or touched or has changed the wages, which includes remunerations as paid or the price for labour an consideration at the arguments as advanced and reading or construing the relevant sections, I find that the provisions of the said Act. even after the incorporation of the amendment or prior thereto, is commodity workable. The amendment as incorporated has not created any impediment to the working of the said Act and the same has not created any conflict or repugnancy in the operational side of the said Act, and considering the provisions, there cannot be any room for doubt that the Company is the principal employer. 15. Before concluding I must also have it on record that following the principles as enunciated in Mt. Rukhmabai etc. v. Krishnarao Shankarrao Chitravis & Anr, AIR 1952 Nagpur 155. Narayan Vyankatrao Ramchandra Narayanrao, AIR 1957 Bombay 146, Tarak Chandra' Mukherjee & Ors, v. Ratan. Lal Ghosal & Ors, AIR 1957 Calcutta 257. 15. Before concluding I must also have it on record that following the principles as enunciated in Mt. Rukhmabai etc. v. Krishnarao Shankarrao Chitravis & Anr, AIR 1952 Nagpur 155. Narayan Vyankatrao Ramchandra Narayanrao, AIR 1957 Bombay 146, Tarak Chandra' Mukherjee & Ors, v. Ratan. Lal Ghosal & Ors, AIR 1957 Calcutta 257. Rupendra Burman Raikat v. Rani Ashumati Debi AIR 1955(2) NOC 5617, Mr Das submitted that the meaning of judicial decisions would mean and applicable on what it has decided and not what may logically follow from that decision and furthermore a precedent is a precedent for the case which it decides and the jurisprudence which believe. in law being made by precedents does not accept the proposition that there should I necessarily be a logical extension of a particular decision given by the Courts 26. These apart, Mr. Das placed reliance on the decision of House of Lords in the case of Quinn v. Leatham, (190l) AC 495 There cannot be any dispute about the propositions as laid down in the cases 38 Cited by Mr. Das. But they in my view have no relevance or little application in the facts of the case I am further of the view that meaning of a term, if and when used in different statutes must be given or road in terms of the concerned statute in which such term has been used and as such also the meaning of the definition of employees in S. 2(9) as it standi now, appears to me to be reasonable and all comprehensive. 27. Mr. Das also contended that in any event the concerned order is to be quashed because each and every employee has been sought to be roped in by an omnibus order and that too without deciding on whom or in whose case S. 2(9) is applicable for the view which I have expressed. II think appropriate answer has been given earlier and this sub-missions of Mr. Das required no further answer or determination. 28. Thus the Rule should fail and as such the same is discharged. There will be no order for costs. 29. For the view which I have taken. I have not decided the point on maintainability of the application for the existence of other remedy in the statute as urged by Mr. Mukherjee. The stay of operation of the order, as prayed for, is refused. There will be no order for costs. 29. For the view which I have taken. I have not decided the point on maintainability of the application for the existence of other remedy in the statute as urged by Mr. Mukherjee. The stay of operation of the order, as prayed for, is refused. Rule discharged.