Prabhat Zarda Factory v. Regional Director, E. S. I.
1997-01-22
D.P.WADHWA, SUDHANSU JYOTI MUKHOPADHAYA
body1997
DigiLaw.ai
Judgment 1. These two appeals are under Sec. 82 of the Employees State Insurance Act, 1948 (for short, the Act). Under this Section, appeal lies to the High Court from the order of the Employees Insurance Court, if it involves a substantial question of law. 2. In the present cases, the appellant manufactures Zarda, Kimam and Pan Masala in its factory at Muzaffarpur. Admittedly, it is not a factory within the meaning of Sub-sec. (12) of Sec. 2 of the Act, inasmuch as, for the manufacturing process, no power is used. However, it is an admitted case that Zarda so manufactured is then sent to another factory,: called the General Machinery Sealing and Manufacturing Works for putting the same in tins and then sealing the tins, whereafter it is marketed. The question that arises for consideration is if the aforesaid General Machinery. Sealing and Manufacturing Works is an immediate employer to bring the appellant within the purview of the Act. Reference, in this connection, may be made to Sub-sec. (13) of Sec. 2 of the Act which defines the immediate employer which reads as under: "immediate employer", in relation to employees employed by or through him, means a person who has undertaken the execution, on the premises of factory or an establishment to which this Act applies or under the supervision of the principal employer or his agent, of the whole or any part of any work which is ordinarily part of the work of the factory or establishment of the principal employer or is preliminary to the work carried on in or incidental to the purpose of, any such factory or establishment, and include a person by whom the services of an employee who has entered into a contract of service with him are temporarily lent or let on hire to the principal employer." 3. The submission of the Learned Counsel for the appellant is that if this sub-section applies, the work of sealing etc. should necessarily be done at the premises of the appellant itself.
The submission of the Learned Counsel for the appellant is that if this sub-section applies, the work of sealing etc. should necessarily be done at the premises of the appellant itself. To this, we are unable to agree as, in our opinion, "immediate employer" would also mean a person who has undertaken the execution of the whole or any part of any work which is ordinarily part of the work of the factory or establishment of the principal employer and it would not be that the work should also be done in the premises where the factory of the principal employer is located. In this view of the matter, the appellant being the principal employer would be covered under the Act. We would also say that the Act being a social legislation is not to be given a restricted meaning. 4. That being so, we may refer to finding arrived at by the Employees State Insurance Court in Paragraph No. 13 of the Judgment, which is as under: "The aforesaid second essential of an "immediate employer" requires that the work which has been undertaken to be executed by the party concerned must ordinarily be a part of the work of the factory or establishment of the principal employer, or is preliminary to the work carried on in, or incidental to the purpose of , any such factory or establishment. In the instant case evidently the said factory or establishment is M/s Prabhat Zarda Factory and it is to be examined whether the said sealing work, the execution of which has been undertaken by the Sealing Company, is ordinarily a part of the work of this factory or not, or is preliminary to or incidental to the purpose or work carried on in this factory or not. It has been admitted by the applicants witnesses that the cans in which Zarda Products manufactured by Prabhat Zarda Factory are packed by it and handed over to the Sealing Company have no bottoms and, according to them, it is the Sealing Company which fixes bottoms to those cans and at the same time seals those bottoms to make the packing air tight.
It is clear that until and unless the said sealing work is done, the manufacturing process done by M/s Prabhat Zarda Factory cannot be said to be fully complete, because without sealing the product will be in an unfinished condition and will not be in a saleable condition. This position has been admitted by the Manager of M/s Prabhat Zarda Factory in para 3 of his cross examination. It cannot be denied that in case the said sealing work was not done by the Sealing Company, the responsibility of executing that work would lie on M/s. Prabhat Zarda Factory. I am, therefore, inclined to hold that the sealing work ordinarily a part of the work of M/s Prabhat Zarda Factory and I am of the considered opinion that without the execution of the sealing work the purpose of M/s Prabhat Zarda Factory cannot be fulfilled, I am, therefore, led to hold that the aforesaid second essential required for "an immediate employer "is also satisfied with respect to M/s General Machinery Sealing and Manufacturing Works". 5. The finding that the sealing etc. of the Zadra manufactured by the appellant is incidental to the manufacturing process of the appellant, is a finding of fact, once we have taken the view that this work is incidental to the manufacturing work of the appellant, no substantial question of law does arise. 6. These appeals are, accordingly, dismissed.