Special Leave Petition Nos
16066
16065  16451 of 1991
From the Judgment and Order dated 28819913081991  9101991 of the Punjab and Haryana High Court in CWPNos
12644 12485 and 14606 of 1991 respectively
Kapil Sibal Ranjit Kumar JD Jain Mrs Kawaljit Kocher Dr Balram Gupta Ms Yasmin Tarapore J Lal Kai lash Vasdev Ms Nandini Sawhney RK Kapoor AA Khan and Anil Verma for the appearing parties
The following Order of the Court was delivered In the Union Territory of Chandigarh 5 of the seats are reserved in favour of sonsdaughtersspouses of Mili taryPara Military personnel
Orders in this behalf are issued by the Administration in its memo dated 19th May 1982 which were later modified in memo dated 691990
In accordance with the said orders Punjab Engineering College a College run by the Chandigarh Administration and affili ated to Punjab University reserved 15 seats in favour of sonsdaughtersspouses of MilitaryParaMilitary Personnel
The College published a prospectus for the session 1991 92
It contains inter alia the rules governing the admission of stu 326 dents to the said college
So far as the reservation in favour of children and spouses of MilitaryPara Military Personnel is concerned the rule printed at pages 23 and 24 of the Prospectus reads as follows SonsDaughtersSpouses of MilitaryPara military Personnel etc
 3 The Admission of the candidates against the reserved seats under this category will be made on the basis of merit list prepared according to the priorities given below in the descending order 1
SonsDaughtersSpouses of defence personnel who are awardees of gallantry decorations of ParamvirMahavirVir Chakra in person or posthumously
OR Sonsdaughtersspouses of defence personnel and para military personnel like CRPF BSF etc
who are killed or are total incapacitated in action while in service and were wholly dependent on them
Sonsdaughtersspouses of defence person nel and para military personnel like CRPFBSF etc
who die while in service and were wholly dependent on them 3
Sonsdaughtersspouses of defence per sonnel and para military personnel like CRPFBSF incapacitated while in service and were wholly dependent on them 4
Sonsdaughtersspouses of exservicemen military and para military personnel like CRPFBSF who are wholly dependent on them 5
Sonsdaughtersspouses of serving de fence personnel and paramilitary personnel like CRPFBSF who are wholly dependent on them The candidates claiming admissions under the category 1 above are required to submit the photo copy of citation for the gallantry award failing which the application will not be considered in this category The candidates claiming admission under category I are required to submit a certificate from the respective Head quarters regarding deathtotal incapacitation in action while in service
The candidates claiming admission under category 2 and 3 are required to submit a certificate from the respective Headquarters regarding deathtotal incapacitationwhile in service
327 The candidates claiming admission under category 4 are required to submit discharge certificate from sevice and certificate of dependence from the District Magistrate of the district concerned
The candidates claiming admission under category 5 are required to submit the certificate of dependence from the unit in which parentspouse is serving
The candidates who apply for admission against this category will also be considered for admission against the seats allocated for Chandigarh General Pool to which they may belong as per their merit
 A perusal of the rule shows that the five categories are mentioned in the order of priority in the descending order
There is no allocation of seats as between these five cate gories
It means that in the first instance all the quali fied and eligible candidates falling in category 1 will be given admission and if any seats are left unfilled quali fied candidates failing in category 2 will be admitted
If there are any seats still left unfilled qualified candi dates falling in category 3 will be given admission and so on
In a given year it may well happen that all the avail able seats reserved for childrenspouses of defence person nel are taken away by the candidates in the first or first and second categories
As a matter of fact for the year 1990 91 only 6 candidates belonging to sub category 4 out of 90 candidates could be admitted and not the others and category 5 went unprovided altogether
It is stated that all candidates obtaining the specified minimum marks in the common entrance test were treated as qualified for being considered for admission
SLP 1606691 The first respondent in the SLP applied for admission to Punjab Engineering College under this quota
He appeared in the common Entrance Test along with other applicants
The College Authorities considered his case placing him in category 4 since his father was an Ex serviceman
He could not however be given the admission because the 15 seats reserved for children and spouses of MilitaryParaMilitary Personnel in this College were allo cated in the following manner a
There were three candidates falling in category 1 ie children of Defence Person nel who are awardees of gallantry decoration Paramvir ChakraMahavir Chakra in person or posthumously
All the three were given admis sion
b There were 5 candidates falling in catego ry 2
They were admitted
328 c Only one candidate falling in category 3 appeared and was given the seat d There were 90 candidates failing in category 4
But only 6 seats were available nine seats having been taken away by sub categories a to c
These six seats were allotted on the basis of inter se merit among the candidates failing in this category
The first respondent being at a fairly lower position in this merit list could not be given the admission
No seats were left for being allotted to candidates failing in category 5
Finding that he has not been given admission in this Col lege the first respondent filed a writ petition in the High Court of Punjab and Haryana being CWP No12644 of 1991
His contention was that his father Major Kuldip Singh Malik was awarded Shaurya Chakra for acts of gallantry that Shaurya Chakra is equivalent to Vir Chakra in all respects and therefore his case ought to have been considered in category 1 and not in category 4
He submitted that along with his application for admission he had enclosed a copy of the citation awarded by the President of India to his father showing that his father Major Kuldip Singh Malik was awarded Shaurya Chakra for displaying exemplary courage and leader ship in the course of his duties in the Mizo Hills
He complained that two of the candidates admitted under catego ry 1 have received less marks than he
The High Court has allowed the Writ Petition on the following reasoning According to Regulation 695 of the Defence Services Regulations relating to the Army issued by the Ministry of Defence Government of India Shaurya Chakra is awardable for gallantry and comes after Ashoka Chakra and Kirti Chakra
Further according to Regulation 717 in order of precedence this award of Shaurya Chakra is at number thirteen
that is immediately below Vir Chakra and Param Vir Chakra is at number two and Maha Vir Chakra is at number seven
Despite all this the re spondents while considering the candidature of the petitioner did not grant him admission to the Bachelor of Engineering Course in the current session even though he was higher in academic merit as compared to respondent Nos 3 and 4 who have been granted such admission
In reply the respondents have pleaded that no doubt the father of the petitioner was deco rated with Shaurya Chakra award in 329 1969 but it is gallantry award and is not strictly covered by the rules regulations and the prospectus of the College though it is admitted that both respondents Nos3 and 4 who have been granted admission were lower in merit than the petitioner so far as the academic record is concerned
After hearing the learned counsel for the parties we find that the approach of the respondents in rejecting the candidature of the petitioner is neither legally correct nor just and fair
However as respondent Nos3 and 4 who are lower in academic merit than the petitioner happen to be the sons of the awardees of Vir Chakra and Maha Vir Chakra respectively it would be unfair if the admis sion already granted to them by the Chandigarh Administration and the Punjab Engineering College Chandigarh is set aside
Resultantly we allow this petition and issue a direction to respondent Nos 1 and 2 to admit the petitioner against the category of sonsdaughters of awardees of gallantry deco rations without disturbing the admission of respondents Nos3 and 4
In case no such seat is available for the petitioner the respond ents shall create a seat for the purpose forthwith
This shall also be deemed to be a direction to the Punjab University for accord ing necessary approval for the creation of the additional seat
There shall be no order as to costs
 The decision of the High Court was rendered on 28th August 1991
The present SLP was filed in this court on 7th October 1991
In fact it appears that having waited for one month and not having been admitted in the college in pursuance of the Judgment the first respondent took pro ceedings for Contempt against the College Authorities
The first respondent was admitted in the college on 28th Octo ber 1991
It is now stated by his counsel that the first respondent has given up his seat in another college Jamia Millia on being admitted to this College
The writ peti tion came up for final hearing before us on 15111991
We disposed of the SLPs on that day stating that reasons for our orders will be given today
SLP No 1606591 Respondents 1 and 2 in this SLP also applied for admission to Punjab Engineering College as children of serving Defence Personnel
They too appeared for the common Entrance Test along with other applicants
Since the parents of the two respondents were serving Defence Personnel their case was considered under category 5 As stated herein 330 before no seats were left for being allocated to candidates falling in category 5
Respondents I and 2 were therefore not given admission in this College whereupon they ap proached the Punjab and Haryana High Court by way of a writ petition being CWP No 12485 of 1991
Their case was that the categorisation of Defence Personnel was unjust and unreasonable in as much as while the children and spouses of serving Defence Personnel are placed in category 5 children and spouses of Exserviceman are placed above them in catego ry 4
According to the respondents
children of serving Defence Personnel must be preferred over the children of Exservicemen
In a short order the High Court allowed the writ petition and directed that category 5 should be treated as category 4 and category 4 should be treated as category 5
The Court directed that admissions for the current year 1991 1992 shall be made accordingly
The order of High court is a short one and may be set out in its entirity After hearing the learned counsel for the parties and having gone through their plead ings we are of the considered view that sub categories No 1 2 and 3 deserve to be re tained at their appropriate present places
So far as sub categories No4 and 5 ie relating to the sons daughters and spouses of the exservice personnel as well as the sons daughters and spouses of service Defence personnel are concerned we find that the ends of justice would be adequately met and the object for which the reservation has been provided would be achieved if the sons daugh ters and spouses of serving Defence personnel are placed at sub category No4 ie above the category of Exservicemen
This conclusion has been arrived at by us after considering the circumstances that the wards and spouses of serving Defence personnel are at a disadvan tage in the absence of their guardians serving at far offdistant places defending the coun try vis a vis who have retired from the mili tary and are now living with their wards
Keeping these considerations in view we dispose of this writ petition by issuing a direction to the respondent Union Territory Chandigarh and Principal Punjab Engineering College to go ahead with the admission of this reserved category
Therefore so far as such categories 12 and 3 are concerned there shall not be any change
However we direct that so far as sub category No4 is concerned persons covered in this shall be considered at No 5 and those covered in sub category 5 are concerned shall be considered at No 4
The admission which are going to be finalised tomorrow shall not be made in accordance with these directions
A copy of the order be supplied Dasti also to the learned counsel for the parties
 331 This order was made on 30th August 1991 whereas the present SLP was filed in this Court on 7th October 1991
These respondents too took proceedings for contempt against the college for not implementing the direction of the High Court
They were admitted on 28th October 1991
These respondents also say that on being admitted to this college they have given up their admission in other colleges
This SLP was heard alongwith SLP
No16066 of 1991 on 151191
SLP No 16451 of 1991 This petition for Special Leave is directed against the order dated 9th October 1991 passed by a Division Bench of the Punjab and Haryana High Court dismissing the writ petition filed by the petitioner
The petitioner writ petitioner applied for admission to the Punjab Engineering College for the year 1991 92 under category 4 being the son of an Exserviceman
By virtue of the directions given by the High Court in its order dated 3081991 in C WP
No 12485 of 1991 category 4 became category 5 and category 5 became category 4 and admissions were being made on that basis
The petitioner who fell in category 4 as per the prospectus of the College and which was now converted to category 5 by virtue of the decision of the High Court aforesaid applied to the High Court to consider his case in category 4 itself and grant him admission
His writ petition was dismissed by the High Court on 9th October 1991 under a short order which reads thus Admissions are being done as per the direc tions issued in Civil Writ Petition No12485 of 1991 decided by the Division Bench on August 30 1991
In view of the said decision we do not find any merit in the contentions raised by the learned counsel for the peti tioner
The Writ petitions dismissed
A copy of this order be given dasti
 The petitioner is in fact questioning the correctness of the directions given by the High Court in CWPNo12485 of 1991 disposed of on August 30 91
Counsel for Chandigarh Administration and the College petitioners in SLP s 16066 and 16065 of 1991 contended that the High Court has exceeded its jurisdiction in grant ing the impugned directions
He submitted that High Court while exercising the writ jurisdiction conferred upon by Article 226 of the Constitution of India does not sit as an Appellate Authority over the rule making authority nor can it re write the rules
If the rule or any portion of it was found to be bad the High Court could have struck it down and directed the rule making authority to re frame the 332 rule and make admissions on that basis but the High Court could not have either switched the categories or directed that Shaurya Chakra should be treated as equivalent to Vir Chakra By its directions the High Court has completely upset the course of admissions under this reserved quota and has gravely affected the chances of candidates failing in category 4 by down grading them as category 5 without even hearing them
These are good reasons for the categorisation done by the Administration which was adopted by the College
He submitted that while Paramvir Chakra Mahavir Chakra and Vir Chakra are awarded for gallantry in war Ashok Chakra Kirti Chakra and Shaurya Chakra are awarded for gallantry otherwise than in war
Shaurya Chakra was awarded to the father of the first respondent in SLPNo
16066 of 1991 for his gallant conduct in counter insurgency operations in Mizo Hills
It was not a war
He placed before us the true extract of order of precedence of awardees
It reads thus TRUE EXTRACT OF ORDER OF PRECEDENCE OF AWARDS
Order of Precedence of Awards The order of precedence of various awards is as follows Bharat Ratna Param Vir Chakra Ashoka Chakra Padma Vibhushan Padma Bhushan Param Vishisht Seva Medal Maha Vir Chakra Kirti Chakra Padma Shri Sarvottam Jeevan Raksha Padak Ati Vishisht Seva Medal Vir Chakra Shaurya Chakra The President s police and Fire Service Medal for gallantry
SenaNao SenaVayu Sena Medal Vishisht Seva Medal The Police Medal for gallantry Uttam Jeevan Raksha Padak Wound Medal The General Service Medal 1947
Samar Seva Star 1965 Poorvi Star Paschimi Star Raksha Medal 2965 333 Counsel says that by its directions contained in the two orders impugned herein the High Court has exercised a jurisdiction which really did not belong to it
We are inclined to agree with him
Counsel for the petitioner in SLPNo
16451 of 1991 supported the aforesaid arguments
On the other hand the counsel for respondents writ petitioners in the High Court in the first two SLPs
sup iported the order of the High Court and submitted further that since the said respondents have given up their seats in other colleges and have been admitted in the Punjab Engi neering College any order throwing them out from the Punjab Engineering College at this juncture would cause them irreparable prejudice
They submitted that the Chandigarh Administration and the College authorities have been sleep ing over the matter until a contempt petition was filed and that they moved this Court only after they were summoned in the Contempt proceedings
They should be held dis entitled to any relief on account of laches submitted the counsel
We are of the considered opinion that the orders of High Court are wholly unsustainable
We shall consider both the directions separately
Let us first consider SLP 16066 of 1991 arising from CWP 1264491
The rule as framed by the Chandigarh Administration and as published by the College in its prospectus in the year 1991 92 placed in category I children and spouses of only those Defence Personnel who were awardees of gallantry decorations of Paramvir Chakra Mahavir Chakra or Vir Chakra in person or posthumously
It did not include Ashok Chakra Kirti Chakra or Shaurya Chakra
The validity of the rule was not expressly questioned before the High Court
Assuming that it was so questioned and assuming that the High Court was satisfied that the rule was discriminatory and bad for the reason of not including Ashok Chakra etc the only course open to it was to strike down the offending rule
It could also have directed the authorities to reframe the rule and to make admissiions accordingly
High Court however did not choose to do so
It merely directed that since Shaurya Chakra is immediately below Vir Chakra in the order of precedence and since respondents 3 and 4 in the writ peti tion admitted under sub category I have obtained lesser marks than the writ petitioner he should be given admission without disturbing the admission given to respondents 2 and 3 in that writ petition
The entire reasoning of the High Court has been extracted by us herein above
It shows that absolutely no reason is assigned for granting the said direction
All that it says is that since Shaurya Chakra is also awardable for gallantry and is placed imme 334 diately below Vir Chakra the writ petitioner should be granted admission
If really the High Court was of the opinion that Shaurya Chakra is equivalent to Vir Chakra and should be treated on the same par as Vir Chakra then it should spelt out the position also of Ashok Chakra and Kirti Chakra
which are above Shaurya Chakra
According to the Rules notified childrenspouses of Ashok Chakra Kirti Chakra  Shaurya Chakra awardees did not fall under category 1 nor under categories 2 or 3
They would fail under catego ry 4 or category 5 as the case may be depending upon whether their parentspouse was an ex service person or a serving person
There may have been other candidates who are the childrenspouses of Shaurya Chakra awardees and for that matter Ashok chakra and Kirti Chakra awardees who may have obtained more marks than the writ petitioner first respond ent in SLP 16066 of 1991 but who did not claim a seat under category 1 nor were considered as such
They may not have stated the fact of their parentspouse being a Ashok chakraKirli Chakra Shaurya Chakra awardee nor filed the relevant citation since it was not relevant as per the published Rules
Had the proper course been followed all of them could have applied properly and could have been consid ered
By saying this we do not mean to say that the Rule is bad
We do not mean to say so at all
There may be good reasons for the Rule as published or there may not be
That is not the issue
What we are saying is that if the High Court was of the opinion that all the gallantry awar dees including Ashok Kirti and Shaurya Chakra should be placed in category 1 it should have said so struck down the category and may be directed reframing of rule and admissions made on that basis
Coming to SLP 16065 of 1991 the position appears to been even worse
Without assigning any reason the High Court has directed that category 4 should be made category 5 and category 5 should be made category 4
In short it has switched these two categories
Again we must say that if the High Court thought that this categorisation was discrim inatory and bad it ought to have struck down the categorisa tion to that extent and directed the authority to  re frame the rule
It would then have been open to the rule making authority either to merge these two categories or delete one or both of them depending uponhe opinion they would have formed on a review of the situation
We must make it clear again that we express no opinion on the question of validity or otherwise of the rule
We are only saying that the High Court should not have indulged in the exercise of switch ing  the categories and that too without giving any reasons thereafter
Thereby
it has practicably assumed the rule of rulemaking authority or
at any rate assumed the role of an Appellate Authority
That is clearly not the function of the High Court acting under Article 226 of the Constitution of India
Now let us notice the implications and consequences of the said switching 
335 By directing that category 4 should be treated as category 5 and conversely category 5 should be treated as category 4 the High Court has prejudicially affected the rights of candidates falling under category 4 without even hearing them
It must be remembered that these categories are mentioned in the order of priority as emphasised herein before
A rulemaking authority need not observe the rule of hearing but the High Court exercising its judicial power cannot dispense with the requirement and that is precisely the grievance of the petitioner in SLP 1645191 arising from VWP 14606 of 1991
He was entitled to be considered under category 4 as per the prospectus whereas by virtue of the High Court s order his category has become category 5 the result of which is that no seat may be left for his category whereas the said category was entitled to some seats at least according to the Rules as framed and pub lished by the Administration and College
Suffice is to say that the giving the said direction while the admission were in progress the situation has been confounded beyond re call
Article 226 of the Constitution of India empowers the High Court to issue to any person or authority including the government directions orders or writs including writs in the nature of Habeas Corpus mandamus Prohibition quo warrants and certiorari or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose
Though the Article itself does not contain any restric tive words the Courts have ever the years evolved certain self constraints though we are not bound by the procedural technicalities governing these high prorogative writs in English law
As observed by a Constitution Bench in Bassappa vs Nagappa  at 256 In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law nor feel op pressed by any difference or change of opin ion expressed in particular cases of English Judges
We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner so long as we keep to the broad and fundamental princi ples that regulate the exercise of jurisdic tion in the matter of granting such writ in English law
 While this is not the place to delve into or detail the self constraints to be observed by the Courts while exercis ing the jurisdiction under Article 226 one of them which is relevant herein is beyond dispute viz while acting under Article 226 the High Court does not sit andor act as an Appellate Authority over the ordersactions of the Subor dinate Authori 336 tiesTribunals
Its  jurisdiction is supervisory in nature
One of the main objectives of this jurisdiction is to keep the government and several other authorities and Tribunals within the bounds of their respective jurisdiction
The High Court must ensure that while performing this function it does not overstep the well recognized bounds of its own jurisdiction
Though we are satisfied that the orders and directions made by the High Court are totally unsupportable in law the subsequent developments dissuade us from allowing these SLPs
As stated above the three respondents writ petition ers first respondent in SLP
1606691 and respondents I and 2 in SLP
1606591 have been admitted into this college Punjab Engineering College on 28th October 1991 where upon they have given up the seats which they had obtained in other colleges
This statement of theirs is not disputed either by the Chandigarh Administration or the college authorities
Depriving the said respondents of their admis sion in this college at this stage would result in grave and irreparable prejudice to them
We think that the Administra tion and College authorities ought to have acted with more alacrity and approached this Court earlier than they did
By the time these SLPs were taken up by us and stay granted the said respondents were already admitted into the College and they say they had given up their seats in the other colleges
On this score alone we decline to interfere with the orders in CW P 1264491 and 1248591
Now coming to SLP 16451 of 1991 the situation is this By virtue of the orders of the High Court three students who were not entitled to admission according to rules have been given admission against the three vacancies which had arisen since the finalization of the admissions
The college authorities say that but for the orders of the High Court these three vacancies would have gone to the first three candidates in the waiting list
The petitioner in SLP 16451 of 1991 says that he is one such person in the waiting list and he would have obtained admission but for the admission given to the three candidates in pursuance of the High Court orders
We do not know whether the petitioner s case is true
All the same we think it appropriate to make the following direction the college authorities shall create three more seats in the said course and admit the first three available students in the waiting list against those seats
The Chandigarh Administration shall pass the neces sary orders in this behalf
Action in terms of this direc tion shall be taken forthwith by the Chandigarh Administra tion and the college authorities
Before we part with this case we wish to make an obser vation
In matters of this nature where the High court directs students to be admitted in Educational Institutions
it would be advisable if the High Court stays 337 the operation of its order for a period of about 3 to 4 weeks if a request therefor is made by the Educational Institution or the State as the case may be
SLPs disposed of accordingly
RP Petitions disposed of


Summary:
The appellant Corporation engaged the respondents con tractors to carry out work of excavation conversion of over head electric lines and laying of underground cables under public roads and for repair and maintenance
On 2681975 the Regional Director of the Employees  State Insurance Corporation noticed the appellant that the employees whose wages were being paid through the respond ents contractors would come under the provisions of Section 29 of the  268 The appellant directed the representative body of the contractors respondents  Association to comply with the provisions of the Act immediately failing which a lumpsum of 7 would be deducted from their bills
When the respond ents  Association refused to carry out such obligation the appellant started to deduct the ESI contribution amount at the rate of 10 from their bills from 1984 and continued deducting till 1985
The respondents contractors challenged the deductions from bills by filing a writ petition before the High Court contending thai for carrying out their contracts the re spondents were not supervised by the appellant the princi pal employer and they were carrying out the allotted work under the contracts of sites outside the factory establish ment of the appellant and that the employees of the respond ents did not come within the definition of the term em ployee  under section 29 of the Act
On 2331984 the Single Judge of the High Court passed an interim order permitting the appellant to respond to the notice issued by the ESIC and staying the realisation of the ESI contribution from the respondent contractors
On 3031985 under section 45 A of the Act the Region al Director ESIC held that the appellant was liable to pay the ESI contribution in respect of the employees of its contractors and directed to pay the same
The appellant challenged that order under Article 226 of the Constitution of India by filing another writ petition
The Single Judge hearing both the writ petitions togeth er dismissed them holding that the ultimate supervision was that of the appellant and hence the Act was applicable
Following the decision of this Court in MG Beedi Works case AIR 1974 SC 1952 the Single Judge further held that the respondents contractors were agents of the appellant the principal employer and that the appellant the principal employer could not escape the liability for the works of its agents the respondents contractors
The Division Bench in appeal reversed the judgment of the Single Judge against which the present appeals by special leave were made to this Court posing the question whether on the facts the right of the principal employer to reject or accept work on 269 completion on scrutinizing compliance with job require ments as accomplished by a contractor the immediate em ployer through his employees is in itself an effective and meaningful supervision  as envisaged under section 29 of the ESI Act 1948 The appellants contended that the High Court fell in error in giving a restricted meaning to the word supervi sion  occurring in section 29 of the Act and in taking out the final act of rejection or acceptance of work from the purview of that word
Dismissing the appeals this Court HELD Per Ranganath Misra CJ 1
The legislative intention should have been brought out more clearly by undertaking appropriate legislation once this Court took a different view
The legislation is benefi cial and if by interpretation put by the Court the intention is not properly brought out it becomes a matter for the legislature to attend to
278 E Per MM Punchhi
In whatever manner the word employee  under Section 29 be construed liberally or restrictidly the construc tion cannot go to the extent of ruling out the function and role of the immediate employer or obliterating the distance between the principal employer and the immediate employer
In some situations he is the cut off
He is the one who stumbles in the way of direct nexus being established unless statutorily fictioned between the employee and the principal employer
He is the one who in a given situation is the principal employer to the employee directly employed under him
If the work by the employee is conducted under the immediate gaze or overseeing of the principal employer or his agent subject to other conditions as envisaged being fulfilled he would be an employee for the purpose of sec tion 29
284 B D 2
In the ordinary dictional sense to supervise means to direct or over see the performance or operation of an activity and to over see it watch over and direct
It is work under eye and gaze of someone who can immediately direct a corrective and tender advice
In the textual sense supervision  of the principal employer or his agent is on work  at the places envisaged and the word work  can neither be construed so broadly to be the final act of 270 acceptance or rejection of work nor so narrowly so as to be supervision at all times and at each and every step of the work
A harmonious construction alone would help carry out the purpose of the Act which would mean moderating the two extremes
284 G H 3
When the employee is put to work under the eye and gaze of the principal employer or his agent where he can be watched secretly accidently or occasionally while the work is in progress so as to Scrutinise the quality thereof and to detect faults therein as also put to timely remedial measures by directions given finally leading to the satis factorycompletion and acceptance of the work that would be supervision for the purposes of Section 29 of the Act
It is the consistency of vigil the proverbial a stich in time saves nine 
The standards of vigil would of course depend on the facts of each case
284 H 285 B 4
Section 182 of the defines agent as a person employed to do any act or to represent another in dealing with third persons the person for whom such act is done or is so represented is called the prin cipal
Section 184 of the said Act further provides that as between Principal and the third person any person may become a agent so as to be responsible to his principal
288 E 5
The agent has an identity distinct from his Princi pal in one sense and a fictional identity with his Principal in the other
The agreement nowhere amalgamates the identity of the electrical contractor with that of the principal CESC by undertaking to provide adequate supervision for the purposes of the Act on behalf of the CESC
The agreement no doubt provides that the electrical contractor would provide adequate supervision while carrying on with the work the purpose dominant is to safeguard obtaining quality work and safety safeguards and to conform to the provisions of the Electricity Supply Act
288 E G 6
The creation or deduction of principal agent rela tionship throws one towards the statutory scheme of keeping distinct the concept of the principal and immediate employ er because of diverse and distinct roles
285 D 7
The electrical contractor is obliged to provide competent supervision while carrying out the work
The electrical contractor 271 is otherwise a licensee under the Indian Electricity Act and the Rules made thereunder
286 C 8
The principal employer can not delegate the function of supervision to his agent who in the eye of law is his second self ie a substitute of the principal employer
The immediate employer can by statutory compulsion never be the agent of the principal employer
If such a relationship is permitted to be established it would not only obliter ate the distinction between the two but would violate the provisions of the Act as well as the contractual principle that a contractor and a contractee cannot be the same per son
285 B C 9
Checking of work after the same is completed and supervision of work while in progress is not the same
These have different perceptions
Checking of work on its comple tion is an activity the purpose of which is to finally accept or reject the work on the touchstone of job specifi cations
Thereafter if accepted it has to be paid on the acceptance of the work
This step by no means is supervision exercised
It cannot be the terminating point of an agency when the interests of the so called principal and the so called agent become business like
288 H 289 B 10
Supervision rested with persons holding valid cer tificates of competency for which a register of supervision was required under the licence to be maintained
289 C 11
Under the contracts the electrical contractors cannot in one breath be termed as agents of the CESC undertaking supervision of the work of their employees and innately under the licence to have beforehand delegated that function to the holder of the certificate of competency
289 C D 12
Even if the terms of the contract and the terms and conditions of the licence the first being at the behest of the CESC and the second being at the behest of the Government be suggested to be complementing each other still these cannot be so interplayed to mean that an agency express or implied has been created by the CESC in favour of the electrical contractor appointing him to super vise work as envisaged under Section 29 of the Act and thus to have established a direct link between the employee and the CESC to the exclusion of the electrical contrac tor
288 C D 13
On the terms of the contract read with or without the terms of the licence no such agency factually or legally stood ere 272 ated on behalf of the CESC in favour of the electrical contractors and none could be as that would violate the statutory scheme of distinction well marked under Section 29 of the Act
The supervision taken was to fulfil a contractual obligation simplicitor
289 D 14
The employees of the electrical contractors on the facts and circumstances do not come in the grip of the Act and thus all demands made towards ESI contribution made against the CESC and the electrical contractors were invalid
289 E F MG
Beedi Works vs Union of lndia AIR 1974 SC 1952 Royal Talkies vs ESIC   Regional Director ESIC Trichur vs Ramanuja Match Industries  Ms PM Patel  Sons  Others vs Union of India  Ors
19861 SCC 32 The Superintendent of Post Offices etc
etc vs
PK Rajamma etc
   referred to
Halsbury s Laws of England Hailsham Edition Vol 1 at page 193 referred to
Per K Ramaswamy J Dissenting 1
The seeks to serve the twin objects namely social security ie medi cal benefits in case of sickness maternity and employment injury and other matters relating thereto and to augment the efficient performance of the duty
289 H 290 A 2
Section 29 of the Act encompasscs employees em ployed for wages in or in connection with the work of a factory or establishment to which the Act applies i who arc directly employed by the principal employer or ii employed by or through an immediate employer and whose services are temporarily lent or let on hire to the princi pal employer by the person with whom the person is entered into a contract of service
293 B C 3
Clause 29ii applicable to the facts on hand attracts a person employed by or through an immediate em ployer as an employee of the principal employer provided the f flowing conditions are satisfied namely 1 the immedi ate employer employs an employee on the premises of the factory or establishment of the principal employer 2 or under the supervision of the principal employer
3 his agent on work which is ordinarily part of the 273 work of the factory or establishment or which is preliminary to the work carried out in or incidental to the purpose of the factory or establishment
293 C D 4
Article 392 of the Constitution enjoins the State to direct its policies to secure the health and strength of workers
The right to social justice is a fundamental right
Right to livelihood springs from the right to life guaran teed under article 21
The health and strength of a worker is an integral facet of right to life
The aim of fundamental rights is to create an egalitarian society to free all citizens from coercion or restrictions by society and to make liberty available for all
Right to human dignity development of personality social protection right to rest and leisure as fundamcntal human rights to common man mean nothing more than the status without means
To the tillers of the soil wage earners labourers wood cutters rickshaw pullers scavengers and hut dwellers the civil and politi cal rights are mere cosmetic rights
Socio economic and cultural rights are their means and relevant to them to realise the basic aspirations of meaningful right to life
293 F H 5
The Universal Declaration of Human Rights Interna tional Conventions of Economic Social and Cultural Rights rccognise their needs which include right to food clothing housing education right to work leizure fair wages decent working conditions social security right to physi cal or mental health protection of their families as inte gral part of the right to life
Our Constitution in the Preamble and Part IV reinforce them compendiously as social economic justice a bed rock to an egalitarian social order
The right to social and economic justice is thus fundamental right
293 H 294 B 6
The term health  implies more than an absence of sickness
Medical care and health facilities not only project against sickness but also ensures stable man power for economic development
Facilities of health and medical care generate devotion and dedication to give the workers  best physically as well as mentally in productivity
It enables the worker to enjoy the fruit of his labour to keep him physically fit and mentally alert for leading a success ful economic social and cultural life
The medical facili ties arc thcrefore part of social security and like gilt edged security it would yield immediate return in the increased production or at any rate reduce absenteeism on grounds of sickness etc
health is thus a state of complete physical menial and social well being and nut merely the absence of disease or infirmity
294 E G 274 7
Right to health is a fundamental human right to workmen
The maintenance of health is a most imperative constitutional goal whose realisation requires interaction by many social and economic factors
Just and favourable condition of work implies to ensure safe and healthy working conditions to the workmen
The periodical medical treatment invigorates the health of the workmen and harnesses their human resources
Prevention of occupational disabilities generates devotion and dedication to duty and enthuse the workmen to render efficient service which is a valuable asset for greater productivity to the employer and national production to the State
294 H 29S B 8The aims at relieving the employees from health and occupational hazards
The interpretation calls for in this case is of the meaning of the meanings supervision  and agent  in s29ii of the Act
The legal interpretation is not an activity sui gener is
The purpose of the enactment is the touch stone of interpretation and every effort would be to give effect to it
The judge acts as a vehicle of communication between the authors and the recipients
The end result is to promote rule of law and to enliven social order and humane rela tions
295 C D 9
In an attempt to construe the provisions of the statute construction as a balancing wheel should be meaningful so as to make the statute workable and not to render it futile or sterile
Whenever strict interpretation of the statute gives rise to unjust situation or results the Judges can ensure their good sense to remedy it by reading words in if necessary so as to do what Parliament would have done had they had the situation in mind
The meaning of the same words in a statute may be mended in the laborynth of interpretation and may be enlarged or restrict ed in order to harmonise them with the legislative intention of the entire statute
The spirit of the statute would prevail over the literal meaning
The jurisprudence and principle therefore in such a situation would be the contextual interpretation to subserve the constitutional scheme and to alongate the legislative purpose harmonising the individual interest with the community good so as to effectuate social transformation envisioned in the preamble of the Constitution
297 D F 10
The word supervision is not one of precise import and is broad enough to require either supervisor s constant presence during work supervised or his devotion thereto if only time necessary to see that it complies with contract specifications advise as to details prepare necessary sketches and drawings etc
298 C 275 11
The does not give its own definition of the word supervision
Therefore it must be construed in the context the ultimate purpose the Act aims to serve and the object behind the Act ie to extend sickness benefits and to relieve the employee from occupa tional hazards consistent with the constitutional and human rights scheme
Under the Electricity Act and the Rules the Corporation licencee is enjoined to perform the acts and duties contemplated thereunder to lay overhead lines under ground cables their repairs and maintenance there of etc
It authorised under the contract the immediate employer to perform on its behalf those acts and duties
The immediate employer would get the work done through their employees employed for that purpose
It is not a sporadic work but a constant and an ongoing process so long as the licencee generates transmits and supplies electrical energy to the consumers of their supply area
Had the principal employer performed those acts and duties through its employees indisputably their employees would be covered under the Act though the work was got done at highways or at places other than the factory or the establishment
When the prin cipal employer authorises the respondents as its contractors under contracts the need for constant supervision is obviat ed relegating that function to its immediate employers
Otherwise the need for contracts would be redundant
The Corporation retained under the contract the power of acceptance or rejection of the work done or supervision effected in maintenance of the work got done by the immedi ate employer subject to overall supervision by the Electri cal Inspector on behalf of the State Government
The super vision in the fact situation is not the day to day supervi sion but legal control ie right to accept or reject the work done or maintenance effected
The exercise of right of acceptance or rejection is the supervision as envisaged in the contract between the principal employer and the immedi ate employer
It would supply the needed unifying or con necting thread between the constitutional creed of social justice ie social security under the Act and supervision of the acts or duties by the principal employer vis a vis the employees of the immediate employer under the contract who ultimately perform them on behalf of the principal employer
Undoubtedly in a bilateral contract between the corporation and the respondents qua their rights and liabil ities under the contracts strict interpretation of the words cngrafted therein be of paramount relevance and call for attention as per Contract Act
301 C 302 B 12
In the context of the statutory interpretation of supervision under the Act of the works undertaken under the contract the 276 interest of the workmen or the welfare schemes for the employees under the Act interposed and call attention to and need primacy
In its construction the courts must adopt contextual approach to effectuate the statutory animation namely social security
The literal interpretation would feed injustice in perpetuity denying to the employees of sickness benefit etc
under the Act which would be avoided lest the purpose of the Act would be frustrated
302 B C 13
The application of the golden rule to the word agency under the between the respond ents and the corporation perhaps does not encompass agency in strict sense under the Act
But public policy of the Act the constitutional and human right s philosophy to provide social security to protect the health and strength of the workers must be kept at the back of the mind to construe the word agent under section 2 9 ii of the Act in contradis tinction with the bilateral stipulations under the contract
In this regard public policy interposes and plays a vital role to read into the contracts the extended meaning of agency to bring about connecting links between the respond ents and the licencee corporation
Lest the contract if intended to deny welfare benefits to workmen would be opposed to public  policy and would become void under section 23 of the 
Such an intention would be avoided by reading into the contract the extended meaning of agency but not fiduciary
302 E G 14
The contractors respondents knew at the date of the agreements that the Corporation as principal employer is under statutory obligation to execute or keep executed the works and keep them repaired and maintained as an inte gral activity of generation transmission and distribution of the electrical energy to the consumers within their area of supply
On authorisation the respondents execute and keep executed the works and repairs or kept them repaired and the maintenance thereof effected through their employ ees which in law is on behalf of the Corporation principal employer
The genesis and aim of the transaction was to act on behalf of the Corporation
The agency of the respondent with the Corporation thus springs into being
The prohibi tion of the qualified supervisors while in service of the respondents to disengage themselves with third parties in terms of the contract was only to extract unstinted and exclusive devotion to duty and no further
It stands no impediment to construe thathe respondents are agents to the Corporation as immediate employers
303 F H 277 15
The employees working under the respondents perform their duties in execution of the works repairs and mainte nance thereof in connection with the generation transmis sion and distribution of the electrical energy by the Corpo ration licensee
The Corporation is the principal employer
The respondents  immediate employers execute the work etc
under the supervision of the Corporation as its agents
Their employees in law work under the supervision of the principal employer corporation
They are covered under s29 ii of the Act entitling to the sickness benefits etc
envisaged therein and the respondents are liable to make their contribution to the Employees  Insurance Fund
304 A B Senior Electric Inspector  Ors
vs Laxmi Naravan Chopra Muddala Veeramallapa  Ors  at p 313 Massachusetts Bonding  Insurance Co vs United States of America    Atma Ram Mittal vs Ishwar Singh Punia   Owen vs Evans  Owen Build ers Ltd 19621 Weekly Law Reports 933 Regional Direc tor ESIC vs South India Flour Mills P Ltd  AP State Electricitv Board vs
ESIC Hydera bad  Regional Director
ESIC Bangalore vs Davangere Cotton Mills  ESIC Chandigarh vs Oswal Woolien Mills Ltd H FB Birohichand Sharma vs First Civil Judge Nagpur  Ors   DC Dewan Mohideen Sahib  Sons vs The Industrial Tribunal
Madras   Nagpur Electric Light  Power Co Ltd vs Regional Director ESIC 1967 3 SCR Reprint 92 Kirloskar Pneu matic Co Ltd vs
ESIC  Royal Talkies Hyderabad  Ors
ESIC   MS PM Patel  Sons  Ors
vs Union of India  Ors
   Superintendent of Post Office vs
PK Rajamma   Prenn vs Simmonds 1971 1 Weekly Law Reports 1381 HL referred to
World Labour Report 2 at Chapter 9 Safety and Health Lawyer Oct  Report of the Committee on Labour Welfare 1969 in paragraph 577 of Chapter 5 Webster Comprehensive Dictionary International Edition at page 1260 in Vol 1I Corpus Juris Secundum Vol 83 at page 900 The Words and Phrases
Permanent Edition Vol
40A Halsbury s Laws of England Hailsham Edition Chitty on Contracts 26th Edition paragraph 2502 at page 4 AGGuestAnson s Law of Contract 26th Edition at page 308 referred to