Ideal Trading Corporation and Another vs Employees'' State Insurance Corporation and Others

D. Biswas, J.—None appears for the appellants when the case is taken up for hearing. Heard Mr. B.R. Dey, the learned counsel for the respondent Corporation.

This appeal is preferred against the order dated May 25, 1993 passed by the E.S.I. Court in ESI Case No. 18/90 u/s 75 of the Employees'' State Insurance Act, 1948.

The appellant filed a petition u/s 75 of the E.S.I. Act, 1948 before the E.I. Court challenging the Bakijai Case No. 44/90 which was initiated for recovery of contribution amount of Rs. 3,238/- and Rs. 4,466/- for the period between April, 1989 and August, 1989 and between September, 1989 and March, 1990.

The learned E.I. Court after consideration of the evidence on record--both oral and documentary, came to the finding that the casual workers and the representatives who worked under the petitioner Corporation are also employees of the firm and they altogether numbering 20 invite the applications of the provisions of the E.S.I. Act, 1948.

In the memorandum of appeal, the basic challenge is to the inclusion of the casual employees as employees of the appellant''s firm.

The question which is to be answered in the appeal is whether the casual employees working under the appellant Corporation would also be treated as employees of the appellant firm for the purpose of application of the provisions of the E.S.I. Act, 1948.

Shri Dey, the learned counsel for the respondents in support of the decision of the learned EI Courts has relied upon a decision in Rajkamal Transport and Anr. v. Employees'' State Insurance Corporation, Hyderabad 1996 SCC 1307 : 1996-II-LLJ-435. In order to better appreciate the decision relied upon, it would be appropriate to quote hereinbelow the observations in para-7 of the judgment. Para-7 reads as follows at p.437 of LLJ:

"7. It is seen that the Insurance Court after elaborate consideration, found as a fact, that the appellants have the control over loading and unloading of the goods entrusted to the appellants. The appellants'' regular business is transportation of the goods entrusted to them as carriers. When the goods are brought to the warehouse of the appellants, necessarily the appellants have to get the goods loaded or unloaded through the hamalis and they control the activities of loading and unloading. It is true as found by the Insurance Court that instead of the appellants directly paying the charges from their pocket, they collect it as a part of the consideration for transportation of the goods from the customers and pay the amount to the hamalis. The test of payment of salary or wages in the facts of this case is not relevant consideration. What is important is that they work in connection with the work of the establishment. The loading and unloading of the work is done at their directions and control".

In addition to the above, Shri Dey, the learned counsel for the respondents referred to a judgment of this Court reported in AIR 1970 gau 246. A Division Bench of this Court while dealing with a similar question, observed as follows:

"From the evidence which we have set out above, it is clear that these 37 labourers were working for a considerable period in the factory under the supervision of the principal employer even if they were supplied by the Sardars. These workers are even admitted to be executing the work of loading and unloading of bags inside the factory under the supervision of the Partner. So the conclusion is irresistible on the evidence that these workers are employed by the factory along with the Sardars who even worked with them inside the factory. They are, therefore, directly employed by the principal employer in connection with the normal work of the factory. For the purpose of the instant case, to come within the definition of ''employee'' u/s 2(9)(i), the person has to be employed for wages in the factory or in connection with the work of that factory and he must be directly employed by the principal employer on any work of the factory. All these conditions are fulfilled in the case of these 37 employees and they, therefore, are employees within the meaning of Section 2(9)(i) of the Act and the factory is liable for the employees'' contribution on their account. The first submission of Mr. Das therefore fails."

A reading of the judgment of the Supreme Court as well as of this Court referred to above would show that a person employed for wages in any factory or in connection with the work of that factory is an employee within the meaning of Section 2(9)(i) of the Act. In the instant case the learned EI Court found from Ext. 13 that 15 number of employees were employed in the appellant firm in addition to 4 (four) casual employees including Driver and Chowkidar were also found to be in service. Besides 6 (six) persons were also engaged as representatives. Thus the total exceeded the minimum requirement under the Act. This conclusion has been arrived at by the learned EI Court on the basis of the inspection report submitted by PW 1. The finding with regard to the number of employees including the casual employees is a finding of fact and there is no scope for this Court to re-appreciate the evidence on record in view of the specific provision in Section 82(2) of the E.S.I. Act, 1948. The question whether casual employees are also within the meaning of Section 2(9)(i) has already been answered by the Hon''ble Supreme Court as well as by a Division Bench of this Court.

The representatives also work in connection with the affairs of the appellant firm for the purpose of marketing the products. They cannot be excluded from the definition of ''employees''. If we go by the observation of the Supreme Court in para-13 of the judgment in M/s. Cochin Shipping co. Vs. E.S.I. Corporation, it would be clear that the Act is a piece of social security intended to provide certain benefits to the employees in case of sickness, maternity and employment injury. It would, therefore, be incompatible to hold that the representatives who are engaged by the firm for marketing the products cannot be treated as employees for the purpose of the Act, 1948.

In the result, the appeal is devoid of merit and hence dismissed.