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2005 DIGILAW 3055 (RAJ)

Vidhya Bhawan Shaikshanettar Karamchari Sangh v. State of Rajasthan

2005-11-19

KRISHAN KUMAR ACHARYA, S.N.JHA

body2005
Judgment 1. This writ petition by Vidhya Bhawan Shaikshanettar Karamchari Sangh-a self styled organisation-has been filed questioning the validity of the notification of the Government of Rajasthan in the Labour and Employment Department contained in S.O. 209 dated 110.2004 extending the provisions of the Employees State Insurance Act, 1948, in terms of Section 1(5) of the Act, to educational institutions spread over the entire area where the scheme framed under the said Act has already been brought into force. The notification may usefully be quoted in extenso as under:- “Labour and Employment Department Notification Jaipur, 110.2004 S.O. 209.-In exercise of the powers conferred by Sub-section (5) of Section 1 of the Employees State Insurance Act, 1948 (34 of 1948), the Government of Rajasthan having already given six months notice as required thereunder vide Government of Rajasthan Notification No. F 19 (20) L&E/03 dated 03.01.2004 published in the State Gazette dated 08.01.2004, hereby appoints from the date of publication in the Official Gazette as date on which all provisions of the said Act shall extend to the all establishment and in areas as specified in the Schedule annexed hereto- Schedule Description of establishments Areas in which the establishments are situated. Educational Institutions (including public, private, aided or partially aided) run by individuals, trustees, societies or other organisations, wherein 20 or more persons are employed or were employed for wages on any day of the preceding twelve months. Areas where the Scheme under the Employees State Insurance Act, 1948 has already been brought into force under Section 1(3) and 1(5) of the Act.” 2. The case of the petitioner is that the Employees State Insurance Act has been enacted to protect persons employed in hazardous establishments such as factories and industrial undertakings, and educational establishments by the very nature of their activities are not covered by the Act, and the impugned notification is ultra vires the Act. 3. The Employees State Insurance Act, 1948 has been enacted “to provide for certain benefits to employees in case of sickness, maternity and employment injury and to make provisions for certain other matters in relation thereto.” The words sickness and maternity have not been defined in the Act and, therefore, they are to be understood in the ordinary sense. 3. The Employees State Insurance Act, 1948 has been enacted “to provide for certain benefits to employees in case of sickness, maternity and employment injury and to make provisions for certain other matters in relation thereto.” The words sickness and maternity have not been defined in the Act and, therefore, they are to be understood in the ordinary sense. Employment injury has been defied in Sub-section (8) of Section 2 of the Act of mean “a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India.” 4. On reading of the preamble and the provisions of the Act it is clear that the Act was the outcome of the policy to provide remedy for the wide-spread evils arising from consequences of poverty. It is a welfare legislature to provide social security to the employees and, therefore, the provisions thereof have to be liberally construed. 5. The answer to the contention of the petitioner lies in the very provisions of Sub-section (5) of Section 1 under which the notification has been issued. Sub section (5) provides:-“(5) 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 notice 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 class of establishments, industrial, commercial, agricultural or otherwise.” (emphasis supplied) Counsel for the petitioner tried to pursuade us to take the view that the establishments within the meaning of Sub-section (5) should be of the nature of industrial or commercial or agricultural establishments carrying occupational hazards to the employees. We regret it is not possible to take a narrow view of the provision as suggested by the Counsel. The words “to any other establishment” and “or otherwise” occurring in Sub-section (5) leave no manner of doubt that the appropriate Government may extend the provisions of the Act to any other establishment, not necessarily being industrial or commercial or agricultural establishments. The expression or otherwise in fact, shows that the establishment may be non-industrial, commercial or agricultural. The words “to any other establishment” and “or otherwise” occurring in Sub-section (5) leave no manner of doubt that the appropriate Government may extend the provisions of the Act to any other establishment, not necessarily being industrial or commercial or agricultural establishments. The expression or otherwise in fact, shows that the establishment may be non-industrial, commercial or agricultural. It is relevant to mention that Sub-section (4) of Section 1 of the Act at the first instance applied to all factories other than seasonal factories. Sub-section (5) confers power on the appropriate Government to extend the applicability of the Act to other establishments. We thus do not think that extending the provisions of the Act to educational institutions is beyond the scope of Section 1 (5) of the Act and the notification, therefore, cannot be said to be ultra vires the Act. 6. Counsel submitted that the service conditions of the employees of the institutions in question are governed by the Rajasthan Non-Governmental Educational Institutions Act, 1989 and the Rules of 1993 framed thereunder, and unless corresponding amendments are made in the said Act/Rules, the provisions of the Employees State Insurance Act cannot be extended. We do not find any substance in the contention as the object of the present Act is different from that of said Act. As seen above, the present Act has been enacted to provide benefit to the employees in case of sickness and maternity besides employment injury. 7. Before we part with the case we may observe that the Act having been enacted for the benefit of the employees and extended to the employees of educational institutions by the impugned notification, it is wholly un-understandable that the employees should feel aggrieved by the notification. If we may say, this writ petition appears to have been filed as a proxy litigation at the instance of the employers concerned i.e., the educational institutions. 8. The writ petition is dismissed.