Dismissed

M/S Rustic Art Exports v. the E.S.I.C. and Ors.

Rajasthan HC19 Sept 2018CMA/1794/2017

Case brief

AI extract

What is this about?

This bench allowed no substantial question of law to arise and dismissed the appeal challenging a court below order rejecting an application under Section 75 of the ESI Act. The court held that workers doing finishing work outside factory premises on a job-work basis are employees under Section 2(9) of the Act.

What did the court decide?

Impugned judgment and decree dated 4th November 2016 rejecting the application under Section 75 were affirmed.

M/S Rustic Art Exports Vs the E.S.I.C. and… — Pension and Retirement Benefits | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 1794/2017

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M/s Rustic Art Exports, Plot No. 68-70 Marudhar Industrial Area, First Phase, Basni, Jodhpur, through its Proprietor Vikramjeet Singh S/o Shri Amarjeet Singh.

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----Appellant

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Versus

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The Employees State Insurance Corporation through its Prescribed Officer, Deputy Director Regional Office, Employees State Insurance Corporation, Panchdeep Bhawan, Bhawani Marg, Jaipur.

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The Insurance Inspector/ Branch Manager, Panchdeep Bhawan, Air Force Road, Jodhpur.

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The Recovery Officer, Regional Manager, Employees State Insurance Corporation, Panchdeep Bhawan, Bhawani Singh Marg, Jaipur.

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For Appellant(s) : Mr. B.S. Sandhu For Respondent(s) : Mr. R.K. Soni

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HON'BLE MR. JUSTICE P.K. LOHRA

Judgment

Reportable

19/09/2018

By the instant appeal under Section 82 of the Employees’ State Insurance Act, 1948 (for short, ‘Act’), appellant, a manufacturer of handicraft articles, has laid challenge to judgment & decree dated 4^th of November, 2016, rendered by Employees’ Insurance Court cum Sr. Civil Judge, Jodhpur Metropolitan, Jodhpur (for short, ‘learned Court below’). By the impugned judgment & decree, learned Court below has rejected application of the appellant under Section 75 of the Act.

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The facts, apposite for the purpose of this appeal, are that appellant preferred an application under Section 75 of the Act before the learned Court below, inter-alia, challenging demand raised by respondent-Corporation vide its letter dated 30^th of April, 2009 for ESI Contribution with interest vis-a-vis workers utilized by it on job-work basis for finishing manufactured articles outside the precincts of factory. It is pleaded by the appellant that those workers have not lent any services to it in manufacturing process through contractor, nor they were directly employed for carrying out manufacturing activities by the principal employer, i.e., the appellant. It is also averred that the amount paid to these individuals was not routed through contractor as such there was no causal connection between these workers and the appellant. With these positive assertions, appellant has challenged the demand notice issued by respondent-Corporation and prayed for its annulment. Besides that, appellant also claimed refund of 50% amount of demand tendered by it under protest.

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The application submitted on behalf of appellant was contested by respondent-Corporation and in its reply all the averments are refuted. The respondent-Corporation, in the return, also pleaded that its Inspector, Shishupal Singh, inspected the factory of the appellant and found that since December 1996 the appellant has employed more than 10 workers and therefore it is an “establishment” within the four corners of Section 1 & 2 of the Act. The respondent-Corporation also laid emphasis that invoking Sections 1 & 2 of the Act, it has

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rightly covered the appellant-establishment under the Act. While adverting to the plea of the appellant that some manufacturing work was got carried out on job-work basis, it is submitted on behalf of the respondent-Corporation that even if manufacturing work was carried out on job-work basis then too appellant-establishment is covered under the Act and cannot claim immunity from its applicability. Justifying its demand, the respondent-Corporation prayed for rejection of the application.

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The learned Court below, on the basis of pleadings of rival parties, settled three issues for determination. For substantiating its case, on behalf of appellant, two witnesses were examined and in the form of documentary evidence produced 39 documents which were exhibited. In counter, respondent-Corporation, examined one witness DW1 Suresh Pal Singh and tendered five documents in evidence, which were exhibited. The learned Court below, thereafter, decided issue No.1 & 3 simultaneously. While deciding these two issues, which were crucial for the lis involved in the application, sincere endeavour was made by the learned Court below to scrutinize ocular and documentary evidence of the rival parties. The learned Court below, while recording its finding on these two issues, placed heavy reliance on the comprehensive definition of “employee” envisaged under sub-section (9) of Section 2 of the Act. The decision of issue No.1 & 3 had a fait accompali entailing rejection of the application of the appellant. Thus, in that background, the learned Court below, decided Issue No.2 also against the appellant by relying on decision of issue No.1 & 3.

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Learned counsel for appellant Mr. B.S. Sandhu has vehemently argued that impugned judgment of the learned Court below is contrary to the facts of the case and dehors the provisions of the Act, therefore, per se vulnerable. It is also submitted by learned counsel that while construing definition of “employee” under Section 2(9) of the Act, learned Court below has completely overlooked the peculiar facts and circumstances of the instant case. He, therefore, submits that the impugned judgment is based on complete misreading of evidence and interpretation of the provisions of law, which is not sustainable. Learned counsel has also submitted that the instant appeal involves substantial questions of law mentioned in the memo of appeal, which require adjudication. In support of his arguments, learned counsel has placed reliance on following judgments:

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(1) The Managing Director, Hassan Co-operative Milk Producer’s Society Union Limited Vs. The Assistant Regional Director, Employees State Insurance Corporation [(2010) 11 SCC 537]

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(2) Employees State Insurance Corporation Vs. J.M.D. Fashions[2007 (114) FLR 621]

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(3) National India Rubber Works Ltd. Vs. Employees State Insurance Corporation [(2007) IILJ 584 MP]

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Per contra, learned counsel appearing for respondentCorporation submits that impugned judgment is based on sound reasonings and, therefore, same is not liable to be interfered with. Mr. R.K. Soni has vehemently argued that instant appeal is bereft of any question of law much less substantial question of law, and therefore it would not be appropriate to interfere with the finding of fact recorded by learned Court below based on sound appreciation of evidence. Learned counsel has also argued

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that the learned Court below has rightly interpreted exhaustive definition of “employee” under Section 2(9) of the Act, which is in consonance and conformity with the aims and objects of the Act, i.e., liberal interpretation of beneficent legislation.

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I have bestowed my considerations to the arguments advanced at Bar and perused the impugned judgment.

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At the outset, it may be observed that provision of appeal under Section 82 of the Act is circumscribed by the legislature inasmuch as appeal shall lie before this Court from an order of Employees’ State Insurance Court if it involves a substantial question of law. The language employed in sub-section (2) of Section 82 of the Act is in para materia with the provisions contained in Section 100 CPC. For construing a question of law to be “substantial” within the meaning of Section 82 of the Act, it would be just and appropriate to examine whether question of law is of general public importance or it directly or substantially affects the rights of the party and if so whether it is an open question which is not finally settled by the highest court or is not free from difficulty or calls for discussion of alternative views. If the question of law is no more res integra, or the general principles to be applied in determining the question are well settled, then the mere question of applying those principles would not be a substantial question of law.

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In that background, it would be appropriate to examine the exhaustive definition of “employee” under Section 2(9) of the Act, which reads as under:

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(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�

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(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

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(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

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(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 or let on hire has entered into a contract of service;

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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 or any person engaged as apprentice, not being an apprentice engaged under the Apprentices Act, 1961 (52 of 1961), and includes such person engaged as apprentice whose training period is extended to any length of time but does not include

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(a) any member of the Indian naval, military or air forces; or

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(b) any person so employed whose wages (excluding remuneration for overtime work) exceed such wages as may be prescribed by the Central Government a month:

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Provided that an employee whose wages (excluding remuneration for overtime work) exceed such wages as may be prescribed by the Central Government 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”

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There remains no quarrel that the Act is a piece of social security enactment which requires liberal and benevolent

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interpretation in favour of employees. The concept of social security is based on ideals of human dignity and social justice. The underline idea behind social security measures is that a citizen, who has contributed or is likely to contribute to his country’s welfare, should be given protection against certain hazards. If the findings and conclusions recorded by the learned Court below on issue No.1 are examined on the touchstone of very wide and comprehensive definition of “employee” quoted supra, then it would ipso facto reveal that said finding is based on proper appreciation of evidence. Even otherwise, upon objective analysis of the finding recorded by learned Court below in this behalf, on the strength of available material, it would be rather difficult to visualize any possible alternative view than what is concluded in the impugned judgment. Thus, by any stretch of imagination, said finding of the learned Court below cannot be categorized as infirm or perverse.

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The positive assertion of the appellant is that those workers were doing finishing work on the articles manufactured by it on job-work basis, but then, it is rather difficult to comprehend that the work undertaken by them was not incidentally or preliminarily connected with the work of the appellantestablishment. The contention of the appellant that work-place of these workers was not the factory premises, in my opinion, is immaterial from a bare reading of Section 2(9) of the Act. Therefore, this finding of fact recorded by the learned Court below, on appreciation of evidence in the light of Section 2(9) of the Act, is a pure and simple finding of fact and, thus, no

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question of law, much less substantial question of law, is deducible.

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In common parlance, an intellectual or artistic labour, who receives wages as remuneration for work done in manufacturing process is a person employed. The expression “employed” as used in Section 2(l) of the Factories Act, 1948 does not necessarily involve the relationship of master and servant, and person would be a worker whether he is paid fixed wages or whether his remuneration is determined on the basis of given terms of work done by him. Therefore, a person who does anything directly or indirectly towards the making of articles manufactured in a factory or an establishment upto any stage, till they are ready to be delivered and put in the market, is a person employed in the factory, i.e., “worker” within the meaning of Section 2(l) of the Factories Act, 1948.

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While construing the definition of “employee” under Section 2(9) of the Act, every word or phrase employed therein by the legislature requires harmonious and purposeful construction to farther its aims and objects. The words “incidental or preliminarily to” have to be understood in conjunction with the words “with the work of the factory”. In the instant case, if above referred two phrases in the exhaustive definition of the “employee” are read in conjunction, then, there remains no room of doubt that manufactured articles’ finishing work undertaken by certain persons on job-work basis outside factory premises is conducive to the appellant factory or establishment besides being necessary for the augmentation of its manufacturing works.

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Therefore, without any demur, in my opinion, said work is incidental or preliminary to, or connected with the factory or establishment.

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A three-Judge Bench of Supreme Court, in the matter of Nagpur Electric Lights & Power Co. Ltd. Vs. Regional Director, Employees’ State Insurance Corporation & Ors. (AIR 1967 SC 1364), while examining definition of “employee” under Section 2(9) of the Act vis-a-vis definition of “worker” under Section 2(l) of the Factories Act, 1948, compared object of both the Acts and found the former wider than the latter. Speaking for the Court, Justice R.S. Bachawat, observed:

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“It is to be seen that the definition of an employee in the Employees’ State Insurance Act is wider than that of a worker in the Factories Act. The object of the Factories Act is to secure the health, safety, welfare, proper working hours, leave and other benefits for workers employed in factories. The benefit of this Act does not extend to field workers working outside the factory, see the State of Uttar Pradesh v. M. P. Singh, 1962 SCR 605 (AIR 1960 SC 569). The object of the Employees' State Insurance Act is to secure sickness, maternity, disablement and medical benefits to employees of factories and establishments and medical benefits to their dependents. The benefit of this Act extends inter alia to the employees mentioned in S.2(9)(i) whether working inside the factory or establishment or elsewhere.”

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The Court further observed that the employees working outside the factory undertaking work, which is directly connected with the work of the factory are also employees within the meaning of Section 2(9) of the Act. The Court held:

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“Some of the employees work outside the factory, but their duties are connected with the work of the factory. They are therefore employees

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within the meaning of S.2(9)(i). Some are employed in the sub-stations. It is common case that the sub-stations are independent factories. The sub-stations attendants attend to work which is directly connected with the work of the factory at the main station. They are therefore employees within the meaning of S.2(9)(i).”

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Same view is reiterated by the Supreme Court in subsequent judgment in the matter of Hyderabad Asbestos Cement Products Limited Vs. Employees Insurance Court [(1978) 1 SCC 194]. Speaking for the Court, Justice Kailasam observed:

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“It was submitted that the test as to whether an employee is an employee "in a factory" is the test of not physical presence or absence outside the precincts of the factory but the test is whether he is under the control of the factory and is on the factory wage roll, or other similar tests. We are unable to accept the contention for on a reading of the relevant sections it is clear that the word "employee" would include not only persons employed in the factory but also persons connected with the work of the factory. The employee may be working within the factory or outside the factory or may be employed for administrative purposes or for purchase of raw materials or for sale of the finished goods all such employees are included within the definition of "employee". A recent decision of the Bench of the Madras High Court in W.Ps 144-149 and 331 of 1971 dated October 14, 1976 has also taken a similar view. We agree with the view taken by the judgments of the Andhra High Court and of the Calcutta High Court and dismiss these appeals with costs.”

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While interpreting provisions of the welfare legislation, i.e, Employees’ State Insurance Act, 1948, Supreme Court, in the matter of Royal Talkies, Hyderabad & Ors. Vs. Employees State Insurance Corporation [(1978) 4 SCC 204], laid emphasis on its precise aims and objects. The Court further clarified that when two interpretations are possible, it is duty of the Court to choose

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the one which advances welfare of the weaker sections. The Court held:

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“Shri Chitale tried to convince us that on a minute dissection of the various clauses of the provision it was possible to exclude canteen employees and cycle stand attendants. May-be, punctilious sense of grammar and minute precision of language may sometimes lend unwitting support to narrow interpretation. But language is handmaid, not mistress. Maxwell and Fowler move along different streets, sometimes. 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 society is the statutory object and is faced with stultifying effect, is permissible judicial exercise.”

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The judgment in the matter of The Managing Director, Hassan Co-operative Milk Producer’s Society Union Limited (supra), on which learned counsel for the appellant has placed heavy reliance, is clearly distinguishable because fact situation in that case was entirely different from the instant case. In that case, certain workers were engaged by the Corporation for transportation of milk having no remotest control or interference in their functioning by the principal employer. Moreover, the principal employer had no knowledge about the number of persons engaged by the contractor. Therefore, in that background, Court has held that irrespective of their work being incidental to the purpose of factory or establishment, they are

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not covered by the definition of employee under Section 2(9) of the Act.

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As observed supra and admitted by the appellant that finishing work of the handicraft articles manufactured by it was carried out by these workers on job-work basis may be outside the precincts of the factory but for remuneration, in my view, work done being incidental or preliminary to the work of the factory or establishment, they fall within the ambit of an employee within the meaning of Section 2(9) of the Act. The other judgments relied upon by the appellant of M.P. High Court and Karnataka High Court too cannot render any assistance to the cause of the appellant being distinguishable on facts.

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In view of foregoing discussion, the instant appeal is bereft of any substantial question of law, and therefore the finding of fact recorded by the learned Court below on appreciation of evidence and purposeful interpretation of Section 2(9) of the Act, warrants no interference.

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Consequently, the appeal, being devoid of any force, is hereby rejected.

M/S Rustic Art Exports v. the E.S.I.C. and Ors.

Case brief

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M/S Rustic Art Exports v. the E.S.I.C. and Ors.

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