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1994 DIGILAW 317 (BOM)

Employees' State Insurance Corporation v. Transport Corporation of India

1994-07-13

M.L.PENDSE, N.D.VYAS

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JUDGMENT : M.L. PENDSE, J. The respondent No. 1 is a Company incorporated under the Companies Act, 1956 and has registered office at Secunderabad in the State of Andhra Pradesh. The Company is engaged in transport business and has branches all over India through which the Company carries on business of transport of goods and materials. Some of the branches are situated in the State of Maharashtra. By notification published under Section 1(5) of the Employees' State Insurance Act, 1948 (hereinafter referred to as the ‘Act’), the Government of Andhra Pradesh provided that the transport establishments are covered by the provisions of the Act. The notification was published in May 1981. It is not in dispute that the establishment in Andhra Pradesh was registered under the provisions of the Act. On July 29, 1986 the Deputy Regional Director, Employees' State Insurance Corporation. Bombay served show cause notice upon the respondent No. 1 to explain why the contribution should not be paid for a period commencing from May 1981 and ending with November 1985 in respect of branch office of respondent No. 1 in Bombay. The respondent No. 1 filed reply claiming that the contribution was paid from August 1, 1985 onwards under protest but the branches of respondent No. 1 in Bombay are not covered by the Act. The Deputy Regional Director then passed order dated September 8, 1988 in exercise of powers under Section 15-A of the Act assessing contribution for the period commencing from May 1981 to July 1985. It was held that once the establishment in Andhra Pradesh is covered, then the branches of the establishment, wherever they are situated, also stand covered. 2. The respondent No. 1 filed Writ Petition No. 931 of 1989 under Article 226 of the Constitution of India before the learned Single Judge sitting on the Original Side of this Court to challenge the legality of the order passed by the appellants. 3. The learned Judge by the impugned judgment dated April 30, 1993 held that the establishments of respondent No. 1 in Maharashtra are not covered as the consequence of the publication of notification under Section 1(5) of the Act by State of Andhra Pradesh. The learned Judge further held that there was no material on record to suggest that the main establishment and the branches are inter-dependent in respect of the business of transport carried on by the Company. The learned Judge further held that there was no material on record to suggest that the main establishment and the branches are inter-dependent in respect of the business of transport carried on by the Company. The learned Judge further held that it was not proper for the appellants to pass order under Section 45-A of the Act when respondent No. 1 was disputing the claim that the branches in Maharashtra State were covered and the proper remedy of the appellants was to take recourse to the provisions of Section 75 of the Act. The learned Judge, in consequence of these findings allowed the petition and quashed the impugned order dated September 8, 1988 passed by the appellants calling upon respondent No. 1 to contribute Rs. 2,09,914/- along with interest at 15% per annum. The judgment of the learned Single Judge is under challenge. 4. Shri Jaykar, learned counsel appearing on behalf of the appellants submitted that the trial judge was in error in holding that the appellants could not pass order in exercise of powers under Section 45-A of the Act and should have taken recourse to the proceedings under Section 75 of the Act. The submission is correct and deserves acceptance. In case, the branches of respondent No. 1 in Bombay are covered by the provisions of the Act, then it is wholly irrelevant and unnecessary for the appellants to adopt proceedings under Section 75 of the Act. The finding of the learned Single Judge on this count, therefore, cannot be sustained. 5. The main complaint of the appellants is that the trial Judge was in error in holding that the establishments in Maharashtra are not covered and there is no material to indicate that the branches in Bombay are not inter-dependent on the establishment in Andhra Pradesh. We find considerable merit in the submission urged on behalf of the appellants. The business carried on by respondent No. 1 is transport of goods and materials all over the country and the nature of business is such that it cannot be carried only at the establishment at Andhra Pradesh without the dependence on the Branch Offices. The goods are loaded at various places and in various branches spread over the country and are also unloaded at various, places. The branch officers register the orders, accepts the goods and materials to be transported from Bombay and to be received at Bombay. The goods are loaded at various places and in various branches spread over the country and are also unloaded at various, places. The branch officers register the orders, accepts the goods and materials to be transported from Bombay and to be received at Bombay. It is, therefore, obvious, that the transport business carried on at the principal office as well as at branches is totally interdependent. 6. Shri Jaykar submitted, with reference to the provisions of Section 2(9) of the Act, that the work carried out by respondent No. 1 may be in the establishment or elsewhere. Section 2(9) of the Act defines expression “employee” and, inter-alia, provides that an employee mean any person employed in connection with the work of a factory or establishment to which the Act applies and 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. The definition further provides that the work may be done by the employee in the factory or establishment or elsewhere. Relying upon the expression ‘elsewhere’, it was contended that the employees who are performing, the work for respondent No. 1 Company in the branch offices at Bombay also fall within the definition of ‘employee’ under Section 2 (90 of the. Act and consequently are covered by the provisions of the Act. The submission is correct and deserves acceptance. A Division Bench of Andhra Pradesh High Court held in judgment E.S.I.C. Hyderabad v. Southern Eastern Railways, 1983 II LLJ 396. that the branch office is only an appendage to the head office and the branches are located in the place or State where the head office is situated or other places outside the States also. It was held that each branch being an offshoot of the head office cannot be considered as an independent entity and once the establishment is covered, then the branch offices also automatically stand covered. We are in agreement with the view of the Division Bench of Andhra Pradesh as far as the principle applies to the facts of the present case. It is, therefore, obvious that the finding of the learned Single Judge that the branches of respondent No. 1 in Bombay are not covered is not correct. 7. We are in agreement with the view of the Division Bench of Andhra Pradesh as far as the principle applies to the facts of the present case. It is, therefore, obvious that the finding of the learned Single Judge that the branches of respondent No. 1 in Bombay are not covered is not correct. 7. Shri Pai, learned counsel appearing on behalf of respondent No. 1, submitted that the quantification; of the amount of contribution made by the appellants is not accurate. The respondent No. 1 was called upon to contribute Rs. 2,09,914/- for the period commencing from May 1981 and ending with July 1985. Shri Pai submitted that respondent No. 1 is desirous of producing material to establish that the quantum of contribution is not accurate. Shri Pai sought remand to the appellants for fresh determination of the quantum of contribution. As respondent No. 1 is desirous is of producing additional material in support of the claim, in our judgment, it would be appropriate to remit the matter back to respondent No. 2 for fresh determination of amount of contribution provided respondent No. 1 produces additional material. 8. Accordingly, appeal is allowed and judgment dated April 30, 1993 recorded by learned Single Judge in Writ Petition No. 931 of 1989 is set aside. The order dated September 8, 1988 passed under Section 45-A of the Act by Deputy Regional Director is partly set aside and the proceedings are remitted back to the Deputy Regional Director only for the purpose of quantifying the amount of contribution and the amount of interest to be paid thereon. It is made clear that respondent No. 1 will not be permitted to raise any other contention save and except to produce material to indicate what should be the quantum of contribution. In the circumstances of the case, there will be no order as to costs. 9. Appeal allowed.