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1980 DIGILAW 20 (KER)

ALUMINIUM INDUSTRIES v. E. S. I. CORPORATION

1980-01-14

P.JANAKI AMMA, P.SUBRAMONIAN POTI

body1980
Judgment :- 1. M/s. Aluminium Industries Limited Kundara, a company incorporated under the Companies Act with its Registered Office at Kundara within the State of Kerala is the appellant before us. It was an applicant before the Employees Insurance Court, Alleppey, and in the application the Company prayed for a declaration that the persons employed by it in its Regional Offices situate at Hyderabad, Secunderabad, Madras, Cochin, Trivandrum, Bangalore, Bombay, Delhi and Calcutta were not employees within the meaning of the Employees' State Insurance Act and no contributions were due from the applicant to the respondent in respect of such persons. This application having been dismissed this appeal has been filed to this court. 2. The appellant company has two factories at Kundara the employees of which are insured under the Act. The appellant company has another factory at Mannar which is said to be not a factory liable to be covered under the Act. There is a factory at Hyderabad which is covered under the Act with effect from 1-8-1971 and another factory at Hyrecud which is covered from 17-3-1974. According to the appellant company these factories are independent and have been recognised as separate factories for the purpose of coverage under the Act. The controversy does not concern the employees of these factories. The matter in issue concerns the coverage of the employees in the eight Regional Offices situate in various parts of the country. According to the company the employees in the Regional Offices did not fall within the scope of coverage under the Act since these were merely establishments and as such not within the scope of coverage under the scheme of the Act during the relevant period. It is further said that in the Regional Offices neither manufacturing work nor any work connected with the manufacturing activities of the factory are attended to and the employees in the Regional Offices are not on the pay rolls of any factory or any factory establishment. As to the role of the Regional Offices and the work carried on there the applicant stated in the application thus: "The establishments look after functions like liaison with the applicant's customers, suppliers, financial institutions, banks, and other Governmental agencies. They also do canvassing, execution and follow up of orders for the different and diversified products of the Company. As to the role of the Regional Offices and the work carried on there the applicant stated in the application thus: "The establishments look after functions like liaison with the applicant's customers, suppliers, financial institutions, banks, and other Governmental agencies. They also do canvassing, execution and follow up of orders for the different and diversified products of the Company. The liaison work which their employees of the Regional Offices do has nothing to do with the factory work but only with the company work. Apart from that the Regional Offices also do work not affecting of any particular factory". When the authorities of the Corporation insisted upon the coverage of those employees also the court was approached. It has been found in the judgment under appeal that even without any notification under S.1 (5) of the Act the employees of the Regional Offices were liable to be covered under the Act. It has been further found that "the work of the concerned employees of the Regional Offices are connected with the work that is being carried on in the factory as well as in the Head Office establishment at Kundara". The Insurance Court finds that "the unanimous admission of all the three witnesses of the applicant company that the employees of the Regional Offices are invariably carrying on liaison work etc. and also canvassing, execution and follow up of orders for the different and diversified products of the company would declare that all the employees of the various Regional Offices are doing work in connection with the work that is being carried on in the covered factory at Kundara". On these findings the court has declared that the applicant company is not entitled to the relief sought for by it and that the employees of the concerned Regional Offices can only be considered as covered employees under S.2 (9) of the Act. 3. The case urged before the Employees Insurance Court that the establishments such as the Regional Offices of a company are not liable to be covered because the only means of bringing them within the scope of the Act is by invoking S.1 (5) of the Act is not pursued evidently because the question has now been settled by the decision in Regional Director, ESI. Corprn. , Trichur v. Ruby Rubber Works Ltd (ILR. 1974 (2) Ker. Corprn. , Trichur v. Ruby Rubber Works Ltd (ILR. 1974 (2) Ker. 536) and the decision of the Supreme Court in Hyderabad Asbestos v. Employees Insurance Court (AIR. 1978 SC 356). It is now settled that in order to bring an employee within the coverage under the Act he need not be working in the premises or precincts of the factory. The term 'in' in S.38 of the Act has been construed as having a larger meaning so as to include those who are employed in connection with the work of the factory. The amendment of the definition of the term 'employee' has enlarged the scope of the coverage so as to bring within its reach even those who work in offices functioning as administrative offices of the factory or as sales or purchases offices. Even the employees of establishments where the work carried on is the work in connection with the administration of the factory or with the activity of purchase or sale are liable to be covered. Doing liaison work and doing work of canvassing orders are necessarily work in connection with the work of the factory, particularly the work of sales of the products of the factory. The product manufactured by the applicant company is said to be cables and naturally liaison work, which the evidence indicates is mainly with the Electricity Boards is called for to obtain orders for sale of such products. Therefore that the employees in the Regional Offices are conceded with the work which would render them employees within the meaning of the term as defined in S.2 (9) of the Act admits of no doubt. But learned counsel for the appellant Sri. Appu Nair nevertheless urges that on the facts of this case this may not be sufficient to bring the employees of the Regional Offices within the scope of coverage under the Act. That is the question which calls for examination here. 4. The Regional Offices, it is said, are maintained in different places in the country to do work which no doubt includes liaison work and work of canvassing. But it is said that the work done by each one of the Regional Offices is not that of all the factories and the sales effected in these Regional Offices are not of all the goods produced but only some of them. But it is said that the work done by each one of the Regional Offices is not that of all the factories and the sales effected in these Regional Offices are not of all the goods produced but only some of them. It is therefore said that at best what can be said is that the Regional Offices are engaged in connection with the work not necessarily of. one factory or the other but of all factories and if so whether they are so engaged principally in connection with one or other of the factories is the question for consideration In other words if they are engaged in the work of several persons they cannot be said to be employees of all and by the same logic if they are engaged in connection with the work of several factories they cannot be said to be employees concerned with the work of all the factories. They may be employees of one or other of the several factories, in connection with the work of which they are principally engaged. Unless there is a finding that they are working principally in connection with the work of any specific factory, it is urged, they cannot be considered as employees liable to be covered. 5. Evidently the inspiration of counsel for this approach is derived from a decision of this Court in Tata Oils Mills Ltd. v. E.S. I. Corporation (1977 KLT. 875). We were dealing in that case with the question of coverage of the employees in a sales office maintained at Ernakulam by the Tata Oil Mills Company Limited. It was found that this sales office operated as sales office not only of the applicant company but also of other companies such as Tata Finlay Limited, Lakme Limited etc. It was contended in that case that on the strength of the decision of this Court in Regional Director, ESI. Corporation, Trichur v. Ruby Rubber Works Ltd., (ILR.1974 (2) Ker. 536) that the employees at the sales office also must be taken to be the employees of the factory of Tata Oil Mills Limited at Tatapuram. That would have been the case had the sales office been concerned solely with the sales activities of products of the Tata Oil Mills at Tatapuram. But they were engaged in the sales of products of other parties also. That would have been the case had the sales office been concerned solely with the sales activities of products of the Tata Oil Mills at Tatapuram. But they were engaged in the sales of products of other parties also. It was true that such parties were the sister concerns. But still they are independent companies. If the employees could be said to be employees of such companies also it would mean coverage over again as employees of all the concerns as whose sales agents they functioned. It is to resolve this question that this court had to consider the requirements of treating employees at the sales office at Ernakulam as employees of the factory. Dealing with this question this court said thus: "If certain persons are employed principally for the work of a particular factory although they do some other work also, they would nevertheless be attracted by the definition. If for example, an employee sells the products of a factory principally; although in the course of his work he sells the products of some other factories also in addition to his principal work, he does not cease to be an employee under the Act in relation to the factory with which he is principally connected. It is therefore a question of degree of his relationship wish the factory with which he is sought to be connected for the purpose of the Act. If his relationship is mostly and basically with that factory, and not with any other factory, he is an employee of that factory for the purpose of the Act. This is a question of fact which has to be ascertained by a general appreciation of the various circumstances connected with the employment." " Learned counsel for the appellant Shri. Appu Nair seeks to extend this rule to its logical extreme. According to him what is said of a Regional Office or sales office functioning as agent of different companies or engaged in connection with the different offices must be said equally of an office which functions as sales agent of different factories, belonging to one and the same company. According to him the question whether such persons are employees of a particular factory or not would depend upon whether they are principally concerned with the work of that factory. According to him the question whether such persons are employees of a particular factory or not would depend upon whether they are principally concerned with the work of that factory. That question calls for consideration and only if it is found to be so the coverage is said to arise. 6. There is a fundamental misapprehension in this approach. It is not any factory that is insured under the Act and therefore different factories are not different entities. May be for administrative convenience returns are filed separately. S 38 of the Act provides that all employees in factories or establishments to which this Act applies shall be insured in the manner provided by the Act. The question of filing separate returns or separate payments are questions concerning the manner of insurance. But the coverage under the - Act is of employees of factories and establishments and the contribution has necessarily to be paid by the employer. The term 'employer' is not one defined in the Act. But that may not be material because S.40 refers to the obligation to pay the contribution as that of the 'principal employer'. That term is used in contradistinction to the term 'immediate employer'. Though an employee may have an immediate employer the scheme of the Act is to make the principal employer liable in the first instance. 'Principal employer' is a term which is defined and in the case of a factory it is an owner or occupier of the factory and it includes the managing agent or the legal representative and where a person has been named as manager of the factory the person so named. Therefore the liability to pay contribution is that of the owner or an occupier leaving out the case of managing agent, legal representative and manager, for, they are all only projections of the same idea to be applied under different circumstances. It is therefore evident that under the Act the obligation to pay contribution is on the owner or where the factory is in the possession of an occupier, the occupier. It is not the factory which is liable to pay. The factory cannot be said to be liable, for, it is defined as premises. Naturally it is the applicant company which has come up before court as applicant and not the Kundara factory of the applicant company. It is not the factory which is liable to pay. The factory cannot be said to be liable, for, it is defined as premises. Naturally it is the applicant company which has come up before court as applicant and not the Kundara factory of the applicant company. The question therefore is whether the employees in the Regional Offices are employees in the factory of which the applicant is the owner. In connection with the work of which factory they are principally employed is not material. S.2(9) only requires that the person coming within that definition should be one who is employed for wages in or in connection with the work of a factory and the inclusive part of the definition added by Act 44 of 1966 includes within the scope of the term any person employed for wages on any work connected with the administration of the factory or establishment or any part, department or branch thereof or with the purchase of raw materials for, or the distribution or sale of the products of the factory or establishment as employee. If it is shown that the employees in the Regional Offices are concerned with such work of one or other factories irrespective of whether they are concerned with similar work of other factories of the principal employer they are liable to be covered. On this we do not have to differ from the view taken by the Employees' Insurance Court. In the circumstances, the appeal is dismissed. No costs. Dismissed.