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Judgment
This appeal is directed against the judgment of learned District Judge, Coimbatore in E.S.I.O.P.No.212 of 1989. The Management, being the
petitioner in the O.P., is the appellant in the above appeal.
Before the Employees State Insurance Court (E.S.I. Court), an application was filed by the appellant u/s 75 of the Employee''s State Insurance
Act, 1948 (hereinafter called ''the Act'') seeking to hold that no contribution could be claimed by the Employee''s State Insurance (E.S.I),
Corporation in respect of various items listed in the petition. Out of the total amount of contribution if Rs.1,18,487.14, as determined to be due
under the order of the respondent dated 19.9.1989, the petitioner was liable to pay only a sum of Rs.23,403-20 and the correctness of the
demand of the balance amount of Rs.96,06.94, which represented the contribution payable on the disputed items of payments, was prayed to be
set aside.
In June, 1987, a show cause notice was issued to the petitioner (appellant) u/s 45-A of the Act claiming a total sum of Rs.1,42,097.65, as
contribution various items of payments made during the period January, 1985 to July, 1986. Though a reply was sent to the said show cause
notice, the Corporation did not accept the objections raised by the appellant and by an order dated 19.9.1989, the Corporation computed the
compensation due at Rs.1,18,487.14. Hence, the application under Sec. 75 of the Act.
It is not necessary to deal with all the items of dispute which totals to 14 items. In the present appeal, the scope is restricted only to items 1 and
3, and as such, it is sufficient to refer the pleading and evidence pertaining to those two items alone.
Item 1 deals with loading and unloading contribution, charges for the work done in the godown, towards which a sum of Rs.59,013.85 was
demanded by the Corporation. Item 3 which deals with contribution on a sum of Rs.4,63,441.65, alleged as incentive to the workmen employed,
in the Mills had been disputed.
According to the Management, item 1 relating to the loading and unloading charges, the same related to the work done in the godown outside
the factory premises of the Mills, and therefore, no contribution was due. The loading and unloading work in the godown was done by the
Contractor who was paid fixed rates. The work of the contractor was not supervised. It was also submitted that the work of loading and unloading
was done outside the premises of the factory by the men employed by the contractor and those wages paid to them cannot be considered to be
the wages covered under the Act. On this issue, the Corporation in its counter contended that whether loading and unloading was done outside or
inside, it was immaterial and since the work was part of the business of the petitioner, should result payment of the contribution.
With reference to item 3, according to the appellant, it was incentive payment, which was made to the workmen for production over and above
the prescribed norms. There was no obligation on the part of the worker to produce more than the norms and the payment was due only if he
chose to produce more than the prescribed norms. It was also open to the Management not to require production over and above the norms. It
was not necessary that every incentive payment should be shown to be liable to be withdrawn unilaterally. On this issue, the Corporation
contended that the incentive bonus or payment was yet another amount liable to be considered for determining the contribution.
On both the issues, the E.S.I Court held against the Management and hence, the present appeal.
For convenience, item 3 which relates to payment of alleged incentive bonus, may be taken up first for consideration. Even though the
Management has chosen to use a self-serving description, namely, as incentive bonus, the E.S.I. Court, on evidence, rightly found it as over-time
wages. It is not disputed that the said payments have been made to the regular employees. Having regard to the regularity of payment and on the
basis of the evidence adduced before the Court, the E.S.I. Court had come to the conclusion that the payment was only towards over-time wages
and not as claimed by the Management. It is not disputed before me that in this context, absolutely, no material had been filed by on the side of the
Management to substantiate the mode of payment so as to exclude the said item from being classified as wages as defined u/s 2(22) of the Act.
The said provision includes wide variety of payments and remuneration on all kinds paid or payable in cash to employee, paid at intervals of
periods not exceeding two months. The said payments also do not fall under any of the four exempted categories, such as, pension fund or
provident fund or travelling allowance or special expenses or any gratuity payable on discharge. Therefore, the Management, having failed to
produce any material to substantiate the real nature of payment, the E.S.I. Court has rightly relied on the records produced on the side of the E.S.I.
Corporation for having come to the conclusion that the payment was only with reference to the over-time wages and not towards any incentive
bonus, which would fall outside the scope of Sec. 2(22) of the Act.
With reference to item 1, namely, loading and unloading charges, with reference to the work carried out in the godown belonging to the
Management, it is very strenuously urged before me that godown cannot be considered to be part of the factory. It is further contended that there
was nothing on record to show that the Management had any supervisory functions over the work which was carried on at the godown and that
there was no dispute over the fact that the workers in the godown were employed only by the Contractor and not by the Management.
Mr. Balasubramanian, learned, counsel for the Management emphasises on the distinguishing features in the definition of the word, ""employee"",
as could be seen on a perusal of Sec. 2(9)(i) and Sec. 2(9)(ii) of the Act. While Sec. 2(9)(i) deals with employee directly employed by the
principal employer with reference to any work or incidental or preliminary or connected to the work of the factory or establishment, whether such
work was done by the employee within the factory or establishment or elsewhere, the conditions for attracting Section 2(9)(ii) were different.
Section 2(9)(ii) deals with workmen employed through an immediate employer and the said provision would be attracted only if the was carried on
within the premises of the factory or if the work was carried on, under the supervision of the principal employer. According to learned counsel both
requirements were not satisfied, having regard to the fact that the work was carried only in the godown, which was not part of the factory, and that
all the workers were employed only by the Contractor over whom the Management had no control. Learned counsel also specifically refers to the
expression, ""elsewhere"" as occurring in Sec. 2(9)(i), which was absent in Sec. 2(9)(ii). Therefore, according to him, Sec. 2(9)(ii) did not
contemplate any work being carried outside the premises of the factory.
In support of the above submission, learned counsel for the appellant very strongly relies on a judgment of a Division Bench of Calcutta High
Court reported In S.C. Bose and others v. E.S.I. Corporation and others, 1990 (I) L.L.J. 146. That was a case in which workmen employed by
independent contractors carrying on the business of electrical installations, holding licenses from the Government for carrying on the business on the
basis of the contract with the Calcutta Electric Supply Corporation (India) Ltd., came up for consideration, as regards the applicability of the
provisions of the Act. The Division Bench of the Calcutta High Court, after making reference to several other earlier judgments, and of in
particular, of the judgments by the Supreme Court in Nagpur Electric Lights and Power Co. Ltd. Vs. Regional Director Employees State
Insurance Corporation, etc., , came to the conclusion that the term, ""premises"", as occurring in Sec. 2(9)(ii) of the Act, would not include public
highways and other places, where, the work of laying underground cables and overheat lines were being carried out. In the judgment of the
Supreme Court in Nagpur Electric Lights and Power Co. Ltd. Vs. Regional Director Employees State Insurance Corporation, etc., , the issue
which arose for consideration not was whether the work carried out by a company not only in the workshop or the receiving stations, but over the
entire area over which the process of transmission was carried on, could be considered to be a factory, within the meaning of the Act, and the
Supreme Court rejected the said contention and held that it was a startling proposition that every inch of the wide area over which the transmission
lines were spread, should be considered to be a factory.
The judgment of the Division Bench of the Calcutta High Court also dealt with a similar contention, whereby, the work which was carried on in
the highways and the public roads through contractors, was sought to be termed as work within the factory. Such an extreme proposition was
rightly rejected by the Division Bench holding that such work was done entirely outside the factory or the premises of the company, and hence, not
liable to be brought within the scope of the Act.
Therefore, the question which arose for consideration in both the cases dealt with by the Supreme Court and the Division Bench of the
Calcutta High Court, was totally of different nature. The work which was carried out on public roads and highways through the contractors, was
attempted to be termed as work within the factory and hence, rightly rejected. In the present case, there is no dispute over the fact that the
godown belongs to the appellant. The work was being carried out within the godown. It is true that the Corporation does not dispute the fact that
the work was carried on with the aid of a contractor, Nonetheless, since the work, was being carried on within the premises of the Management,
the first limb of Sec. 2(9)(ii) of the Act would apply. Learned counsel for the appellant was at pains to impress that the factory could mean only the
premises of the factory, as defined under the Factories Act, namely, as certified by the competent, authority, with a specific plan shown as
factory"" and cannot include the other premises away from the factory. I am unable to uphold the narrow and restricted meaning which is sought to
be given to the expressions contained in Sec. 2(9) of the Act. It is true that Sec. 2(9)(i) uses the expression ""elsewhere"" and such expression is not
to be found in Sec. 2(9)(ii). The expression ""elsewhere"" had been used in Sec. 2(9)(i) only to emphasise that a regular employee employed by the
principal employer wherever he is carrying out the work, whether outside or inside the factory, would come within the meaning of the word,
employee"". But, in the case of an ""employee"" under an immediate employer, if he is carrying out the work within the premises of the factory, he
would be covered by the Act under the first limb of Sec. 2(9)(ii). If such a worker employed by an immediate employer is not working within the
premises of the factory but, under the supervision or the control of the principal employer, then also, the worker will be covered by the provisions
of the Act. But, it is not possible to hold that a godown cannot form part of the factory. When once it is admitted that the godown belongs to the
establishment, it would be a premises belonging to the employer. Having regard to the object of provisions of the Act, it would not be desirable to
give any narrow interpretation to the expression, ""premises of the factory"". It is always open to the Management to have as many branches or
working places to ''suit its convenience and merely because a place of work belonging to the employer, whether, it be a godown or a branch
office, is situated away from the premises of the factory, cannot result in excluding such premises from the expressions, ""premises of the factory"".
In fact, in the judgment of the Division Bench of the Calcutta High Court relied on by learned counsel for the appellant himself, in paragraph 40
of the judgment, it has been specifically mentioned as follows:
40...It is obvious that on proper construction of Section 2(9)(11) of the said Act of 1948 where the employees of the immediate employer work
outside the factory of the premises of the principal employer, they would have the benefit of the Employees'' State Insurance only if they work
under the supervision of the principal employer or its agents."" (Italics supplied).
Therefore, even according to the said decision, the employees working within the factory or the premises of the principal employer, would be
covered under Sec. 2(9)(ii) of the Act. There is therefore no warrant to exclude the godown belonging to the company as falling outside the
expression, ""premises of the factory"", as occurring in Sec. 2(9)(ii) of the Act.
Therefore, as a result of the finding that the workers employed in the godown would fall within the first limb of Sec. 2(9)(ii) of the Act, there is
no need to consider as to whether such workers were under the control or the supervision of the Management.
Therefore, with the result, I do not find any reason to interfere with the order of the E.S.I. Court. With the result, the appeal is dismissed. No
costs.