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1982 DIGILAW 385 (MP)

BHOPAL MOTORS PVT LTD v. EMPLOYEES STATE INSURANCE CORPORATION

1982-07-22

B.C.VARMA, G.P.SINGH

body1982
JUDGMENT : ( 1. ) THE principal question in this appeal under the Letters patent against the decision of a Single Judge of this Court is whether the persons working in the Show Room/sales Office of the appellant company are employees within the meaning of section 2 (9) of the Employees State insurance Act, 1948 (to be referred as E. S. I. Act. ). ( 2. ) THE appellant, a limited company, deals in sale of Tata Diesel vehicles, including Jeep cars, standard cars, motor cycles etc. It has a factory adjoining which is a workshop where vehicles are repaired and servicing is done. Close to this workshop, it also has a Show Room/sales office where from sale of various motor vehicles is done. The concerned authorities of the respondent applied the provisions of the E. S. I. Act also to the employees working in the Show Room / Sales Office of the appellant treating the workshop and the Sales Office to be one unit. The provisions were made applicable from 28-1-1968. Consequently, the Regional Director of the respondent Corporation asked the appellant to pay certain amount as employees contribution and employers special contribution for the period between 28-1-1968 to 30-6-1972. The amount is being recovered through the tahsildar. The appellant, therefore, raised a dispute before the Employees state Insurance Court, Bhopal contending that the appellants employees working in the Show Room/sales Office are not employees within the meaning of section 2 (9) of the Employees State Insurance Act, 1948 and for the declaration that the Act is not applicable to those Employees. The demand for the contribution was sought to be quashed. The decision of the Employees state Insurance Court went against the appellant aggrieved by which it filed an appeal before this Court under Section 82 (2) of the Act. This appeal (Miscellaneous Appeal No. 181 of 1974) was dismissed by a learned single judge, vide its order dated 31-8-1976. The learned single Judge held that all the employees should be taken to have been engaged both for the factory and for the sale and services of the products of the factory. In course of the order, the learned single Judge has observed: ". . . . . . . . . The learned single Judge held that all the employees should be taken to have been engaged both for the factory and for the sale and services of the products of the factory. In course of the order, the learned single Judge has observed: ". . . . . . . . . it is difficult to say which employee is absolutely unconcerned with the Factory and which of them is concerned, if not in the process of manufacture but in the incidental or preliminary part of the work, or with the administration of the factory or for sale of products of the factory. . . . . . " ( 3. . it is difficult to say which employee is absolutely unconcerned with the Factory and which of them is concerned, if not in the process of manufacture but in the incidental or preliminary part of the work, or with the administration of the factory or for sale of products of the factory. . . . . . " ( 3. ) AFTER its amendment by Act 44 of 1966 with effect from 28-1-1968, the term "employee" is defined in section 2 (9) of the Employees State Insurance Act as follows: " (9) "employee" means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and- (i) who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of, the factory or establishment whether such work is done by the employee in the factory or establishment or elsewhere; or (ii) who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment; or (iii) whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent on hire has entered into a contract of services; and includes 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; but does not include- (a) any member of the Indian naval, military or air forces; or (b) any person so employed whose wages excluding remuneration for overtime work exceed five hundred rupees a month: provided that an employee whose wages excluding remuneration for overtime work exceed five hundred rupees a month at any time after and not before the beginning of the contribution period, shall continue to be an employee until the end of that period. " Section 2 (12) defines "factory" to mean any premises including the precincts thereof whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on but does not include a mine subject to the operation of the Mines Act, 1952 or a railway running shed. ( 4. ) AS Employees State Insurance Act is an important piece of social security legislation, the term "employee" in the Act should be held to cover a wider field and should receive a very liberal connotation than the meaning attributed to the term "worker" in the Factories Act. The benefit of the Act extends also to employees whether inside the factory or establishment or elsewhere. Employees even performing clerical or administrative functions but connected with the work of the factory whether they work in the factory or elsewhere are employees within the meaning of section 2 (9) of the Act. Adverting to this definition, Krishna Iyer, J. , in Royal Talkies, Hyderabad v. Employees State Insurance Corporation, A I R 1978 SC 1478. observed as follows: "when, as in section 2 (9), the definition has been cast deliberately in the widest terms and the draftsman has endeavoured to cover every possibility so as not to exclude even distant categories of men employed either in the primary work or cognate activities, it will defeat the object of the statute to truncate its semantic sweep and throw out of its ambit those who obviously are within the benign contemplation of the Act. Salvationary effort, when the welfare of the weaker sections of the society is the statutory object and is faced with stultifying effect, is permissible judicial exercise. " After its inclusive definition introduced by amending Act 44 of 1966 with effect from 28-1-1968, any work connected with the administration of the factory, the purchase of raw materials and the distribution or sale of products are brought within the scope of the definition. " After its inclusive definition introduced by amending Act 44 of 1966 with effect from 28-1-1968, any work connected with the administration of the factory, the purchase of raw materials and the distribution or sale of products are brought within the scope of the definition. A restricted interpretation that in order to bring an employee within the scope of the Act, he should not only be an employee within the meaning of section 2 (9) of the Act but also that he should be an employee of a factory as defined in section 2 (12) of the act, is not at all warranted. See: Hyderabad Asbestos v. Employees Insurance court, AIR 1978 SC 356 . As pointed out by Krishna Iyer, J , in Royal Talkies case (Supra), the reach and range or the definition is apparently wide and deliberately transcends pure contractual relationships. In order to be an employee within the meanting of section 2 (9) of the Act, what is necessary is that the person must be employed "in or in connection with" the work of an establishment and must fall in one or the other of the three categories mentioned in section 2 (9 ). Some nexus must exist between the establishment and the work of the employee, however loose the connection may be. The work done should be ancillary, incidental or may have some relevance to or link with the object of the establishment. A thing is incidental to another if it merely appertains to something else as primary and not as extraneous or contrary to the main purpose. Section 2 (9) (i) covers cases of employees who are directly employed by the principal employer. The language of this clause and the expressions used therein also include employees other than traditionally so regarded. In Royal Talkies case (Supra), it was held that the keeping a cycle stand and running a canteen within the cinema premises are incidental or adjuncts to the primary purpose of the theatre, and, therefore, the workers employed therein were held to be employees within the meaning of section 2 (9) of the Act. In the present case, we are not concerned with the other two clauses of section 2 (9) as the employees are directly employed by the principal employer. ( 5. In the present case, we are not concerned with the other two clauses of section 2 (9) as the employees are directly employed by the principal employer. ( 5. ) FROM the material on record of the present case, findings of the e. S. I. Court, as approved by the learned single Judge, are these: " (i) That there is one and the same register for calculation and payment of wages for the two units (i. e. the workshop, which is admittedly a factory, and the sales office ). (ii) The same Cashier, the same Accountant and the same Chief executive manage the affairs of the two units. They sign the wage bills of both the units. (iii) There is a common account in the Bank for both units. The same Chief Executive operates the Bank Account for needs and requirements of the workshop and the sales office. The income and expenditure of both units are entered in common cash-book. (iv) There is one common Sales Register for goods sold and services rendered. (v) That the employees of one unit work in the other, depending on work load in each unit and capacity of the employee. (vi) For the purposes of registration of the two units, one under the factories Act and the other under the Shops and Establishments Act, the columns relating to names of employees and the particulars of addresses, are left blank. The appellant company also did not plead which of the employees work in the show-room as well as in the Factory. Separate decision, therefore, in respect of each employee, whether he was solely connected with the factory or with the show-room, could not be given. (vii) That the two units are so connected, one with the other, that they form but one business-concern. The sale of Vehicles through the sales Office, and the guarantee of service and maintenance, offered by the workshop, go together. The employees of one unit are utilized in the other unit, if and when necessary. " All these findings are findings of fact and since an appeal to this Court under section 82 of the Act lies only on some substantial question of law, these findings have to be accepted as binding on this Court. Indeed, the learned counsel, appearing for the appellant, did not assail these findings. " All these findings are findings of fact and since an appeal to this Court under section 82 of the Act lies only on some substantial question of law, these findings have to be accepted as binding on this Court. Indeed, the learned counsel, appearing for the appellant, did not assail these findings. His argument, however, is that the main establishment is the Show-Room/sales Office and not the workshop where vehicles are brought only for cleaning and servicing before they are actually placed for sale. Learned counsel, therefore, argued that, in fact, it is the factory or the workshop which is incidental to the main activity, namely, the sale. It was, therefore, argued that the persons employed in the Show-Room / Sales Office are not "employees". We do not agree. From the meaning of the term "employee" as we have shown above, and from what has been found by the E. S. I. Court, it is obvious that the employees are working in both the units depending upon the work-load in each unit and also depending upon the capacity of the employees. One register is meant for calculating wages which are distributed by the same cashier, there is common account of both the units in the Bank and the income and expenditure of the two units are entered in the common cash-book. The two units appear to be so connected that they seem to form one business-concern. The learned single Judge was, therefore, right in finding that it is difficult to say which employee is absolutely unconcerned with the factory. All the employees seem to be connected with the work of the factory or in the workshop and are, therefore, employees within the meaning of section 2 (9) of the Act. The conclusions reached and the decision given by the learned single judge deserve to be confirmed. We, accordingly, reject the only contention raised in support of this appeal and affirm the decision of the learned single judge. ( 6. ) THE appeal fails and is dismissed with costs. Counsels fee Rs. 100, if certified. Appeal dismissed.