The Proprietor, Balasaraswathi Motor Works vs Employees State Insurance Corporation

T. Ramaprasada Rao, J.—The appellant is a factory having its motor works at High Road, Tirunelveli Junction. The Manager of the

Employees State Insurance Corporation applied u/s 75 (2) of the Employees State Insurance Act, 1948 (herein-after referred to as the Act)

praying for the reckoning of the actual amounts due by the appellant to the Corporation, after scrutiny of their records for the periods specified in

the petition or for a direction to the appellant to pay an ad hoc amount of Rs. 550 with interest at the prescribed rate and for other reliefs.

The Corporation''s case was that the appellant''s factory is one which satisfies the requirements prescribed in the Act and as such, the appellant

is liable to contribute. The appellant''s case was that his motor works was not a factory since the appellant was employing only 19 workers, and

the necessary pre-requisite obliging the appellant to contribute not being there, he claimed that the application was not maintainable. The necessary

issues were framed by the learned Employees Insurance Judge, who after hearing the parties, came to the conclusion that during the period for

which contribution is claimed, the respondent did employ only 19 workers excluding the apprentices. The result of this finding is that if the paid

apprentices admittedly working within the factory precincts were also taken into consideration, then the number of persons working in the factory

would be more than 20. The Tribunal, however, notwithstanding its finding as above, held that the appellant was liable to contribute because he

applied annually for a licence to the authorities concerned seeking for permission to employ at one time more than 20 persons and at another time

for the employment of not more than 50 persons. Such a conduct on the part of the appellant was interpreted by the Tribunal below as being

consistent with the owner of a factory employing more than 20 persons. He was also of the view that as the appellant paid such contribution for a

period earlier than the period in question he was liable to pay such contribution for the subsequent year as well. Ultimately, he directed the

appellant to pay the ad hoc amount of Rs. 550 and costs. As against this, the Motor works have preferred this appeal.

It is unnecessary to go into the question whether the mere fact that an employer seeks a licence to employ persons more than 20 in number

would be sufficient to infer that the factory employed really more than 20 persons. It is also equally not necessary to consider whether an earlier

payment made voluntarily by an employer would estop him from contending that he was not liable to pay for the subsequent year. These two

points, I refrain from considering, because they do not strictly arise in this case in the view that I intend taking. The sole question that survives is

whether a paid apprentice ought to be taken as a person working inside the factory within the meaning of Section 2 (12) of the Employees State

Insurance Act, 1948. Section 2 (12) defines a '' factory '' as meaning any premises including the precincts thereof whereon 20 or more persons are

working or were working on any day of the preceding 12 months. We are not concerned with the later part of the section. This sub-section has

been amended in 1966 and in the instant case, we are not concerned with the amended definition as well. Therefore it has to be found whether the

language of Section 2 (12) of the Act would take into its fold '' paid apprentices '' who are undoubtedly persons who were working within the

precincts of the factory.

As the words used are '' working inside or within the precincts of a factory'', the emphasis is only on the exercise of the labour by the person

concerned. He may be an apprentice, paid or otherwise. He may be one who works inside the factory for love of labour or he may be a person

who is receiving consideration therefor. Nevertheless, he satisfies the literary meaning of the words employed by the Legislature in Section 2 (12),

namely, a person working in the precincts of the factory. In my view, no more consideration appears to be necessary and it would not be proper to

draw in analogies from similar definitions in other enactments, the purposes of which are different and varied from that of the Act under

consideration. It would sometimes lead to an anomaly to interpret the definition of a particular subject with reference to and with the language

adopted in similar or allied legislative enactments. I, therefore, conscientiously refrain from referring to other enactments which refer to the words

factory "" and "" workmen."" Thus interpreted, it appears to me to be clear and plain that if in any premises or precincts, there are persons whose

numerical strength is more than 20 on a particular day of the preceding twelve months referred to in Section 2 (12) of the Act, then such a factory

would undoubtedly be one which satisfies the meaning, requisites and spirit of Section 2 (12).

If authority however, is needed, our Court in Regional Director, Employees'' State Insurance Corporation Vs. S.M. Sriramulu Naidu, ,

observed that the word '' employee '' in the said Act would include within its scope a paid apprentice as well. If, therefore, an employee, defined in

Section 2 (9) would take in a paid apprentice, for a greater reason, the word '' person '' appearing in Section 2 (12) who is working inside a

factory would enfold within its gulf even paid apprentice.

The learned Judges constituting a Division Bench in Employees'' State Insurance Corporation Vs. M.A.H. Siddique, , considering the scope of

Section 2 (12) observed as follows:

It is clear from the definition contained in Section 2 (12) that it does not speak of persons working for wages as such. So long as the number of

persons working on the premises, is twenty, or more, the premises is a '' factory '' falling within the definition, it being immaterial whether those

persons so working are paid wages or not.

This ratio is indicative of the principle embodied in the definition that it is only the aspect of working inside the factory which is relevant and not

whether the worker is paid as an employee or as an apprentice or not paid at all.

In Bank Silver Co. v. Employees State Insurance Corporation (1964) 2 L.L.J. 591, the Bombay High Court took, with greatest respect to the

learned Judge, no doubt a liberal view but a correct view, on the aspect under consideration. The Court said that the definition of '' factory '' in the

Act is not by reference to the number of employees who work in the factory but by reference to '' persons'' who work in the factory : When the

Legislature has taken care to use the word "" worker "" in Section 2 (12) and denned an employee in Section 2 (9), then each sub-section has to be

dealt with independently of and de hors each other. In this view, I am of the opinion that apprentices, paid or unpaid, would certainly be included

as persons working inside the factory within the meaning of Section 2(12) and the employer is liable to contribute on that basis. The Court below,

though for a different reason, with which I do not agree, upheld the obligation of the appellant to contribute. I, for other reasons, uphold the order

and dismiss the appeal. There will be no order as to costs.