The Supreme Court held that casual workers engaged on race days are 'employees' under s. 2(9) of the ESI Act, given the wide welfare-oriented reading supported by ss. 2(22), 2(27), Rule 2(2A) and Regulation 36. Consent terms could not override the 18.9.1978 notification. ESI Corporation's appeals were allowed; Turf Club's dismissed with costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
[2016] 1 S.C.R. I 045
ROYAL WESTERN INDIA TURF CLUB LTD. A
v.
E.S.I. CORPORATION & ORS.
(Civil Appeal No. 49 of2006 etc.)
FEBRUARY 29, 2016
[V. GOPALA GOWDA AND ARUN MISHRA, JJ.]
Employees' State Insurance Act, 1948 - s. 2(9) - Definition of 'employee' - Whether would cover 'casual workers' - Held: In view of ss. 2(22), 2(27) of the ES/ Act; r. 2(2A) of ES/ (Central) Rules; and Regulation 36 of ES/ (General) Regulations, 'Casual Workers' would be covered by the definition of 'employee' in s. 2(9) - Employees' State Insurance (Central) Rules, 1950 - r. 2(2A) - employees' State Insurance (General) Regulations, 1950-:;: ~g. 33.
Allowing the appeals preferred by ESI Corporation, the Court
HELD: 1.1. The definition of "employee" under s. 2(9) of Employees State Insurance Act, 1948 is very wide. A person who is employed for wages in the factory or establishment on any work of, or incidental or preliminary to or connected with the work is covered. The definition brings various types of employees within its ken. The Act is a welfare legislation and '8 required to be interpreted so as to ensure extension of benefits to the employees and l.IOt to deprive them of the same which are available under the Act. [Para .5][1049-F; 1050-G-H]
1.2 A bare reading of th~ aforesaid provisions makes it clear that it would cover the "casual employees" employed for a few days on a work of perennial nature and wages as defined in section 2(22) and wage period as defined in section 2(23) does not exclude the wages payable to casual workers. They ·cannot be deprived of the beneficial provisions of the Act. [Para 8] [1053-C]
1.3 Section 39 deals with the contribution payable under the Act with respect to the employee in respect of each "wage period" shall ordinarily fall due on the last day of the wage period, and where an employee is employed for "part" of the wage period
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A or is employed under two or more employers during the same wage period, the contributions shall fall due on such days as may be specified in the Regulations. It is apparent from section 39 of Employees State Insurance Act, 1948 that an employee who is employed for a part of the wage period is also covered for the purposes of contribution. It is also provided in section 39(5) that B in case contribution is not paid, it shall carry 12% interest per annum or such higher rate as may be specified in the Regulations till the date of actual payment and the amount is recoverable as arrears of land revenue. S. 42 also does not prescribe that employee has to work for a particular period for availing benefit c of the said provision. [Paras 6 and 7][1051-A-B; 1052-A-B, C-E]
1.4 Rule 2(2A) of Employees' State Insurance (Central) Rules, 1950 provides period not exceeding six consecutive months as "contribution period", no minimum period has been prescribed. The Rule· 2(2A) cannot be interpreted to mean that if D an employee has worked for a lesser period he is not entitled for the coverage under the Act. [Para 9][1053-E]
1.5 Regulation 36 of Employees' State Insurance (General) Regulations, 1950 also makes it clear that when an employee is employed by an employer for a part of the wage period, the E" contribution in respect of such wage period shall fall due on the last date of the employment in that wage period. The intendment of regulation is clear to cover work rendered in part of wage period. [Para 10][1053-G-H]
1.6 It cannot be said that casual workers·are not covered F under the ambit of Employees' State Insurance Act. The employees' work for the day of racing which is perennial activity of Royal Turf Club and in view of the provisions of the Act, Rules, Regulations and notification dated 18.9.1978, there is no doubt that such employees are covered arid consequently are entitled for benefit of the Act. [Paras 11 and 12][1056-D-F]
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I. 7 The ESI Corporation cannot be held bound by the consent terms, in Application (ESI) No.16/1976 filed by the Turf Club. In the aforesaid case the period involved was as specified in the notification dated 26.2.1976 which w11s prior and not related to the period in question 1978-79 to 1982-83 involved in C.A.
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ROYAL WESTERN INDIA TURF CLUB LTD. v. E.S.I. CORPORATION & ORS.
No.49/2006 and in other appeals also the period is subsequent thereto. After issuance of the notification dated 18.9.1978 by the Government of Maharashtra, the remaining departments of Turf Club which were left out earlier were specifically covered under the purview of the ESI Act. Thus, the demand in the instant case is based upon the notification dated 18.9.1978 which left no room to entertain any doubt that the establishments of the aforesaid department in question were also covered under the ESI Act. Thus, no benefit can be derived by the consent terms which related to the earlier period when notification dated 18.9.1978 had not been issued. Notification has statutory force and agreement cannot supersede it. It is also clear that several departments of race club were covered under the notification issued in 1968. [Para 13][1056-G; 1057-B-D]
Regional Director, Employees' State Insurance Corporation, Madras V. South India Flour Mills (P) Ltd. AIR 1986 SC 1686 : 1986 (2) SCR 86.J - relied on.
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Employees' State Insurance Corporation v. Gnanambikai Mills Ltd. (1974) 2 Lab. Law Journal 530 (Mad.)-sto.od overruled.
Employees' State Insurance Corpn. v. Premier Clay Products (1994) Supp. 3 SCC. 567 - .distinguished.
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Employees State Insurance Corporation v. Hyderabad Race Club (2004) 6 SCC 191 - distinguished.
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(2016] I S.C.R.
A Case Law Reference (2004l 6 sec 191 distinguished. Para3 1986 (2) SCR 863 relied on. Para 11 (1974) 2 Lab. Law Journal B 530 (Mad.) stood overruled. Para 11 (1994) Supp. 3 sec 567 distinguished. Para 12 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 49
of2006
c From the Judgment and Order dated 21.10.2005 of the High Court of Judicature at Bombay in First Appeal No. 619 of2005 WITH
C. A. NOS. 1575/2006, 3421/2012, 3422/2012
Jamsheed Cama, Govindram Talreja, Ruby Singh Ahuja, Chahat D Chawla, Manik Karanjawala, Harsh Trivedi, (for Mis. Karanjawala & Co.), V. J. Francis for the Appellant.
M. N. Krishnamani, Mahesh Srivastava, Vaibhav M. Srivastava, P. N. Puri, P. V. Yogeswaran for the Respondents.
The Judgment of the Court was delivered by
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AR UN.MISHRA, J. I. The questions involved for decision in - these appeals are whether casual workers are covered under definition of employee as defined in Section 2(9) of the Employees State Insurance Act, 1948 (hereinafter referred to as' ESI Act') and pertaining to period for which Turf Club is liable to pay from 1978-79 or from 1987.
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ROYAL WESTERN INDIA TURF CLUB LTD. v. E.S.I. CORPORATION & ORS. [ARUN MISHRA, J.]
1049
would not be covered by the definition. of the "employee" under Section 2(9) of the Employees State Insurance Act, 1948. lt was also submitted that in view of the consent terms filed in Application No.16/1976 by the Turf Club before the ES! Court, Bombay, the casual labour engaged on ·race track were not to be covered under the ES! Act. It was further submitted that in view of Rule 2A of the Employees' State Insurance (Central) Rules, 1950, contribution is required to be made for a period as may be prescribed in the Regulations and in view of Regulations 29 and 3 I of the Employees' State Insurance (General) Regulations, 1950, it would be difficult to calculate the contribution for the employees who work casually on the racing days. It was also submitted that the direction issued by the High Court not to recover the amount before 1987 does not call for any interference in the appeal filed by ES! Corporation, for which reliance has been placed on a decision of this Court in Employees State Insurance Corporation v. Hyderabad Race Club (2004) 6 SCC 191. •
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"2(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
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(2016] l S.C.R.
A 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;
c 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 oj, the factory or establishment or any person engaged as apprentice, not being an apprentice D 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( 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:
Provided that an employee whose wages (excluding remuneration for overtime work) exceed such wages as may F 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;"
The definition of "employee" is very wide. A person who is G employed for wages in the factory or establishment on any work of, or incidental or preliminary to or connected with the work is covered. The definition brings various types of employees within its ken. The Act is a welfare legislation and is required to be interpreted so as to ensure extension of benefits to the employees and not to deprive them of the same which are available under the Act.
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ROYAL WESTERN INDIA TURF CLUB LTD. v. E.S.I. CORPORATION & ORS. [ARUN MISHRA, J.]
"39. Contributions. - (1) The contribution payable under this Act in respect of an employee shall comprise contribution payable by the employer (hereinafter referred to as the employers contribution) and contribution payable by the employee· (hereinafter referred to as the employees contribution) and shall be paid to the Corporation. (2) The contribution shall be paid at such rates as may be prescribed by the Central Government: Provided that the rates so prescribed shall not be more than the rates which were in force immediately before the commencement of the Employees' State Insurance (Amendment) Act, 1989. (3) The wage period in relation lo an employee shall be the unit in respect of which all contributions shall be payable under this Act.
(4) The contributions payable in respect of each [wage period} shall ordinarily fall due on the last day of the [wage period}, and where an employee is employed for part of the [wage period}, or is employed under two or more employers during the same [wage period}, the contributions shall fall due on such days as may be specified in the regulations.
(5)(a) If any contribution payable under this Act is not paid by the principal employer on the date on which such contribution has become due, he shall be liable to pay simple interest at the rate of twelve per cent per annum or at such higher rate as may be specified in the regulations till the date of its actual payment:
Provided that hifther interest specified in the regulations shall . not exceed the ?ending rate of interest charged by any scheduled bank. ·
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{b) Any interest recoverable under clause (a) may be recovered as an arrear of land revenue or under section 45C to section 45-1..,
It is apparent from section 39 that an employee who is employed for a part of the wage period is also covered for the purposes of B contribution. The definition of the term "employee" in section 2(9) is also wide enough to cover casual employees who are employed for part of wage period. It is also provided in section 39(5) that in case contribution is not paid, it shall carry 12% interest per annum or such higher rate as may be specified in the Regulations till the date of actual payment and the amount is recoverable as arrears of land revenue.
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"2(22). "'wages"' means all remuneration paid or payable in · cash to an employee, if the terms of the contract of F employment, express or implied, were fulfilled and includes any payment to an employee in respect of any period of authorised leave. lock-out, strike which is not illegal or layoff and other additional remuneration, if any, paid at intervals not exceeding two months, but does not include -
G (a) any contribution paid by the employer to any pension fond or provident fond, or under this Act;
{b) any travelling allowance or the value of any travelling concession;
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(c) any sum paid to the person employed to defray special
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ROYAL WESTERN INDIA TURF CLUB LTD. v. E.S.I. CORPORATION & ORS. [ARUN MISHRA, J.]
expenses entailed on him by the nature of his employment; or A (d) any gratuity payable on discharge ; (23) "wage period" in relation to an employee means the period in respect of which wages are ordinarily payable to him whether in terms of the contract of employment, express or implied B or otherwise;"
A bare reading of the aforesaid provisions makes it clear that it would cover the "casual employees" employed for a few days on a work of perennial nature and wages as defined in section 2(22) and wage period as defined in section 2(23) does not exclude the wages payable to casual workers. They cannot be deprived of the beneficial provisions of the Act.
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"2(2A) "Contribution period" means the period not exceeding six consecutive months, as may be specified in the regulations;"
The aforesaid Rule provides period not exceeding six consecutive months as "contribution period" no minimum period has been prescribed. The Rule 2(2A) cannot be interpreted to mean that if an employee has worked for a lesser period he is not entitled for the coverage under the Act.
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A 11. This Court in Regional Director, Employees 'State Insurance Corporation, Madras v. South India Flour Mills (P) Ltd. [AIR 1986 SC 1686] has overruled the decision of the Madras High Court in Employees' State Insurance Corporation v. Gnanambikai Mills Ltd. (1974) 2 Lab. Law Journal 530 (Mad.) in which the High Court laid down that though casual employee may come within the definition of the B term "employee" under section 2(9) of the Act, yet they may not be entitled to sickness benefits in case their employment is less than the benefit period or contribution period and that it does not appear from the Act that casual employee should be brought within its purview. This Court while overruling decision of High Court held thus:
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"8. Section 39 provides for contributions payable under the Act. Sub-section (4) of Section 39 provides as follows:
"The contributions payable in respect of each week shall ordinarily fall due on the last day of the week, and where an employee is employed for part of the week, or is employed under two or more employers during the same week, the contributions shall fall due on such days as may be specified in the regulations. "
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9. Sub-section (4) clearly indicates employment of a casual ·employee when it provides "and where an employee is employed for part of the week". When an employee is employed for part of a week, he cannot but be a casual employee. We may also refer to sub-section (3) of Section 42 relating to general provisions as to payment of contributions. Sub-section (3) reads as follows:
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"Where wages are payable to an employee for a portion of the week, the employer shall be liable to pay both the employer :S contribution and the employees contribution for the week in full but shall be entitled to recover from the employee the employees contribution. "
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10. Sub-section (3), inter alia, deals with employer's liability to pay both employer'.! contribution and the employees contribution where wages· are payable to an employee for a portion of the week. One of the circumstances when wages may be payable to an employee for a portion of the week is that an employee is employed for less than a week, that is to
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ROYAL WESTERN INDIA TURF CLUB LTD. v. E.S.I. CORPORATION & ORS. [ARUN MISHRA, J.]
say, a casual employee. Thus Section 39(4) and Section 42(3) clearly envisage the case of casual employees. In other words, it is the intention of the Legislature that the casual employees should also be brought within the purview of the Act. It is true that a casual employee may not be entitled to sickness benefit as pointed out in the case ofGnanambikai Mills (1974 Lab.IC 798)(Mad) (supra). But, in our opinion, that cannot be a ground for the view that the intention of the Act is that casual employees should not be brought within the purview of the Act. Apart from sickness benefit there are other benefits under the Act including disablement benefit to which a casual employee will be entitled under Section 51 of the Act. Sec/ion 5 J does not lay down any benefit period or contribution period. There may again be cases when casual employees are employed over the contribution period and, in such cases, they will be entitled to even the sickness benefit. In the circumstances, we hold that casual employees come within the purview of the Act. In Andhra Pradesh State Electricity Board v. Employees' State Insurance Corporation, Hyderabad, (1977) 1 LabLJ 54, Regional Director, ESIC, Bangalore v. Davangere Colton Mills, (1977) 2 LabLJ 404, and Employees' State Insurance Corporation, Chandigarh. v. Oswal Woollen Mills Ltd., 1980 LablC 1064, the Andhra Pradesh High Court, Karnataka High Court and the Punjab and Haryana High Court have rightly taken the view that casual employees are employees within the meaning of the term "employee" as defined in Section 2(9) of the Act and, accordingly, come within the purview of the Act. ·
11. Indeed Dr. Chitaley, learned counsel appearing on behalf of the respondent company in Civil Appeal No. 819 (NL) of 1976, frankly concedes that it will be difficult for him to contend that casual workers are not covered by the defll!ition of the term "employee" under Section 2(9) of the Act. He, however, submits that in the instant case the work in which the casual workers were employed by the respondent company, namely, Shri Shakthi Textiles Mills Pvt. Ltd., not being the work of the factory or incidental or preliminary to or connected with the work of the factpry, such workers cannot be employees within the meaning of Section 2(9) of the Act.
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The contention of the learned counsel is that the work of the factory being "weaving", an employee within the meaning of Section 2(9) must be employed on any work incidental or preliminary to or connected with the work of weaving that is carried on in the mill or factory. Counsel submits that the work of construction of factory buildings cannot be said to be an activity or operation incidental to or connected with the work of the factory, which is weaving. Mr D.N. Gupta, learned counsel appearing on behalf of the respondent companies in the other cases adopts the contention of Dr. Chitaley and submits that the workers employed for the construction of the factory buildings do not come within the purview of the definition of "employee" under Section 2(9) of the Act. "
In view of the aforesaid decision it is apparent that the submission raised by Royal Turf Club that casual workers are not covered under D the ambit of ESI Act is too tenuous for its acceptance.
ROYAL WESTERN INDIA TURF CLUB LTD. v. E.S.I. CORPORATION & ORS. (ARUN MISHRA, J.]
1057
security department, carpentry shop, personnel department and accounts department would be covered under the ESI Act with effect from 28.1. I 968. It was agreed that such employees of the Turf Club have already been covered and shall continue to be covered as before and the employees of Racing Administration Department, casual labour engaged on race track, temporary staff engaged on race days for issue of tickets/ dividends were not covered. In the aforesaid case the period involved was as specified in the notification dated 26.2.1976 which was prior and not related to the period in question 1978-79 to 1982-83 involved in C.A. No.49/2006 and in other appeals also the period is subsequent thereto. After issuance of the notification dated 18.9.1978 by the Government of Maharashtra, the remaining departments of Turf Club which were left out earlier were specifically covered under the purview of the ES! Act. Thus, the demand in the instant case is based upon the notification dated 18.9. ! 978 which left no room to entertain any doubt that the establishments · of the aforesaid department in question were also covered under the ES! Act. Thus, no benefit can be derived by the consent terms which related to the earlier period when notification dated 18.9.1978 had not been issued. Notification ha$ statutory force and agreement cannot supersede it. It is also clear that several departments of race club were covered under the notification issued in 1968. Thus, the submission raised on th~ basis of consent terms is hereby rejected.
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as per notification dated 18.9.1978 along with interest at such rate as
B provided in the Act and the Rules till the date of actual payment. Let the amount be contributed within a period of three months from today. Consequently, the appeals preferred by ES! Corporation are allowed and the ones preferred by Turf Club are dismissed with costs of Rs.2 lakhs payable to the ES!Corporation.
Appeals allowed.
3 issues framed by the court
Whether casual workers employed on race days fall within the definition of 'employee' under s. 2(9) of the ESI Act.
From which date the Turf Club is liable to pay ESI contributions: 1978-79 or 1987.
Whether the ESI Corporation is bound by consent terms in an earlier application.
Colour shows how this judgement treated each authority
Regional Director, Employees' State Insurance Corporation, Madras v. South India Flour Mills (P) Ltd.Relied on¶11
AIR 1986 SC 1686 : 1986 (2) SCR 863 · Who else cites this
Employees' State Insurance Corporation v. Gnanambikai Mills Ltd.Overruled¶11
(1974) 2 Lab. Law Journal 530 (Mad.)
Employees' State Insurance Corpn. v. Premier Clay ProductsDistinguished¶12
(1994) Supp. 3 SCC 567 · Who else cites this
Employees State Insurance Corporation v. Hyderabad Race ClubDistinguished¶14
(2004) 6 SCC 191 · Who else cites this
6 provisions across 3 enactments
Royal Western India Turf Club Ltd.
E.S.I. Corporation
Ors.
V. Gopala Gowda
Arun Mishra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
