IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 Ins.APP.No. 100 of 2007() ------------------------- IC.34/2004 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANT/RESPONDENT ---------------------------------------- THE REGIONAL DIRECTOR, THE EMPLOYEES' STATE INSURANCE CORPORATION, REGIONAL OFFICE, PANCHADEEP BHAVAN, N.S.ROUND, THRISSUR-20. BY ADV. SRI.P.SANKARANKUTTY NAIR RESPONDENT(S): APPLICANT ------------------------ M/S.COCHIN AUTOCARE (PVT) LTD., P.B.NO. 4206, JUDGES AVENUE, KALOOR, KOCHI-17, REPRESENTED BY ITS MANAGING DIRECTOR. ADV. SRI.JOHN NUMPELI (JUNIOR) FOR R1 SRI.P.V.PAULSON FOR R1 THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. ........................................... Ins.A.No.100 OF 2007 ............................................. Dated this the 21st day of December, 2009 J U D G M E N T This is an appeal preferred against the order of the Employees Insurance Court, Alappuzha in I.C.No.34/2004.The applicant/establishment had moved the E.I.Court to set aside the order of coverage issued by the E.S.I Corporation. After analysis of the materials, the E.I Court held in favour of the applicant and held that the establishment is not covered. It is against that decision, the E.S.I Corporation has come up in appeal and the following substantial questions of law have been raised for the purpose of consideration by this Court. “(i) Whether the EI Court is justified in discarding the engagement of sweeper for the purpose of counting the number of employees for determining coverage? Is not the approach is perverse and arbitrary and against the true spirit of the definition of employee in Section 2(9)(iii) of the ESI Act? (ii) Is not the duty of court is to interpret the provision of a social security legislation more favourable to the employee to get benefit under the statute? (iii) Whether the definition of employee is properly applied in the facts and circumstances of the case?” : 2 : Ins.A.No.100 OF 2007 2. Heard the learned counsel for the appellant as well as the respondent. The two points which may clinch the issue are (1) in relation to a part time sweeper and the other in relation to a security guard. The contention of the applicant/establishment is that those employees are not really the employees of the establishment and therefore, they cannot be considered for fixing the number of employees. The Employees Insurance Court would hold that since the part time sweeper is only engaged for a period of half an hour and as she is doing work in other establishments, one cannot classify her employment as one coming under the purview of the Employees State Insurance Act. So far as the security guard is concerned, the court held that security guard is employed by the Chadayanmuri Memorial Trust and they are only contributing some amount towards payment of the security guard and there is no employer employee relationship between them. So far as the security guard is concerned, I am also of the opinion that the insurance court was right in the absence of any evidence to connect the relationship of employer : 3 : Ins.A.No.100 OF 2007 employee between the applicant/establishment and the security guard. It has come out in evidence that it was the trust which appointed him and it was only towards remuneration payable by the trust to him, a contribution was made by the establishment. Therefore, as held on facts it does not establish the relationship of employer and employee so far as to cover the establishment under the act. 3. Now the question that arises for determination is regarding the part time employee. So far as the part time employee is concerned, the matter is discussed in para 9 of the order wherein the court below was not prepared to accept her as an employee for the reason that she is only working for half an hour in the establishment and she is working in six other establishments. I think it is not the time taken, that will decide the employer employee relationship but other conditions as laid down in the decision reported in Employees State Insurance Corporation, Bombay v. Western India Theatres Ltd., Bombay. There a learned Judge of the court had referred to the privy council decision as well as the Supreme Court decision to reiterate : 4 : Ins.A.No.100 OF 2007 the necessity of the four indica of a contract of service. It is stated that there must be master’s power for selection of servant (2) payment of wages or other remuneration (3) master’s right to control the method of doing the work and (4) the master’s right for suspension or dismissal. In that particular case it was clearly found by the Bombay High Court that the employer of the said part time sweeper was liberty cinemas and they were doing some work for the establishment on receipt of certain amount as tips and therefore it was held that it will not attract employer employee relationship. 4. In the decision reported in M/s. Hindu Jea Band v. Regional Director, E.S.I Corporation, Jaipur (AIR 1987 SC 1167) the Hon'ble Supreme Court had observed that “even those employees who are paid daily wages or those who are part time employees are employees for the purpose of the Act. The Hon'ble Apex Court in the decision reported in N.E.L.P. Co. v. E.S.I Corporation (AIR 1967 SC 1364) held that the definition of an employee in the Employees State Insurance Act is wider than that of a worker in the Factories Act. The object of the Factories Act is to secure : 5 : Ins.A.No.100 OF 2007 health, safety, welfare, proper working hours, leave and other benefits for workers employed in factories. The benefit of this Act does not extend to the field workers working outside the factory. The object of the Employees' State Insurance Act is to secure sickness, maternity, disablement and medical benefits to employees of factories and establishments and dependents' benefits to their dependents. The benefit of this Act extends inter alia to the employees mentioned in S.2(9)(i) whether working inside the factory or establishment or elsewhere. The resolution of the dispute in this case would depend upon the fact that who is the employer of this part time sweeper. Whether it is for half an hour or one hour, it may not be matter. Even if it is for more than few hours, suppose that person is employed by somebody else then, certainly one cannot hold that he will be an employee under the establishment. But, unfortunately, the said matter has not been considered in that perspective to find out who is the employer of this person as I have mentioned regarding the contract of service. So, the matter requires a reconsideration by the Employees Insurance Court and everything will depend upon the : 6 : Ins.A.No.100 OF 2007 outcome of that finding for the reason that already there are 19 persons. If one person is also pumped in, it will have the coverage otherwise not. 5. Therefore the questions of law formulated are answered in this fashion and the matter is remitted back to the Employees Insurance Act for the limited purpose of finding out whether the part time sweeper is an employee coming under the purview of the Act in the light of the enunciated principles laid down by the Supreme Court in the decisions reported to above. The employees insurance court is directed to issue notice to the parties regarding the date of appearance. The parties shall be permitted to produce documentary as well as oral evidence as they desire to do so and then dispose of the matter in accordance with law. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 7 : Ins.A.No.100 OF 2007