1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1664 OF 2009 Employees State Insurance ... Appellants Corporation & Ors. Vs. M/s International Agencies ... Respondent Mr.P.M. Palshikar, Advocate for Appellants. Mr.S.C. Naidu i/by Mr.C.R. Naidu, Advocate for respondent. CORAM : Smt. R.P. SondurBaldota, J. Date : 13th November, 2009 P.C. : 1. The question that arises for consideration in this appeal, which is in the nature of the Second Appeal, is whether the coolies hired casually and occasionally for limited period of work can be brought within the meaning of “employee” defined under Section 2(9) of The Employees' State Insurance Act, 1948 (hereinafter referred to as “ESI Act”). 2. The facts giving rise to the instant appeal are as follows: The respondent carries on business as clearing and forwarding agents at Mumbai and Nhava Sheva ports. As such its' main activity is assistance in preparation of documentation for import and export. For that purpose, it employs, on an average, 10 to 12 persons in the office. The respondent is not owner of any warehouse and is also not concerned with the loading and unloading of goods of its' customers either in the dock or at the warehouse. It is ,however occasionally, required to engage services of coolies whenever the Custom authorities demand inspection of goods. At such time, coolies 2 are engaged on the spot for specific work on casual basis, the duration of their engagement ranging between 5 minutes to half an hour. The payment to such coolies is made in cash on the spot. The appellant-Corporation treated such casual labourers as the persons employed for wages as defined in Section 2(9) of ESI Act. By adding such casual labourers to the admitted number of employees in the office by respondent the appellant-Corporation held that the respondent fulfills the conditions of Section 2(12)(b) and sought to cover the respondent under the ESI Act. The impugned order abhored the decision and set aside the coverage. 3. Mr.Palshikar, the learned counsel for the appellant submits that the learned Judge presiding over the Employees Insurance Court failed to appreciate that the loading and unloading of goods is incidental part of business activity of the respondent and therefore the persons engaged for loading and unloading are employees within the meaning of the definition under the E.S.I. Act. He also submits that the learned Judge failed to appreciate the decisions cited on behalf of the appellant on the question. 4. The evidence before the Court established that the main activity of the respondent is of assistance in preparation of documentation for import and export. It is not involved in the activities of loading and unloading for its clients that may take place either at the warehouse or in the docks. The loading and unloading work at the warehouse is done by the labourers engaged by the respective warehouse and the respondent never charged its clients 3 for the same. Similarly the work of loading and unloading done at the docks is carried out by the employees of the dock authorities and the respondent never paid for such work. Occasionally i.e. about 5 to 6 times in a month, the respondent is required to engage labourers for a short specific task. The occasions arise only when the Custom authorities demand inspection of any of the goods. At such time, the coolies available at the spot are engaged for carrying the limited number of goods and the payment to the workers is made on the spot. The labourers so engaged do not work for one party and there is also variation and irregularity in the duration of the work. The learned Judge has held by the impugned order that considering these facts, there is no relationship of master and servant between the respondent and casual labourers engaged sporadically by it to bring them under the definition of employees under Section 2(9) of the E.S.I. Act. Mr.Palshikar, has taken me through the decisions cited before the learned Judge which are allegedly ignored by him. The decisions are in : (i) Rajkamal Transport & Anr vs. E.S.I. Corporation, Hyderabad (1996 II LLJ Page 435); (ii) Transport Corporation of India Ltd. vs. ESI Corporation & Anr. (1999 II CLR Page 1067); (iii) Regional Director, E.S.I. Corporation, Hyderabad vs. Bharat Cement Pipe Industries, Nirmal (2000[2] LLN Page 1191) and (iv) Rajan Universal Exports (MFRS) Pvt. Ltd. vs. Regional Director, E.S.I. Corporation (1999 [94] FJR Page 160). Perusal of the decisions show that the same are related to either transporters or where the activity of loading and unloading 4 is carried out on regular basis as incidental to the main activity of factory/shop. In such facts and circumstances, it was held that the casual workers engaged for such purpose would be covered by the definition of “employee” under Section 2(9) of the E.S.I. Act. It has been rightly pointed out by Mr.Naidu, the learned counsel for the respondent relying upon the decisions in : (i) Shrinivasa Rice Mill vs. E.S.I. Corporation (2007 I CLR Page 33); (ii) E.S.I. Corporation vs. M/s Premier Clay Products (1995 SCC (L&S) Page 162) and (iii) Parle Bottling Co. Pvt. Ltd. vs. The Regional Director, E.S.I. Corporation, Bombay (1989 II CLR page 229). that casual workers being engaged by the respondents infrequently as and when required does not create master and servant relationship. The coolies engaged by the respondent are self employed labourers acting on their own responsibility and working not just for respondent but also for anybody and everybody who makes the work available to them. The work assigned to them lasts for a very short duration and is not on regular basis. It is assigned only occasionally. The learned Judge has rightly appreciated this aspect of the matter to hold that the casual labourers occasionally engaged by the respondent are not covered by the definition of “employees” under the Act and quashed the order of the appellant under Section 45(A) of the E.S.I. Act and consequently recovery certificate. No fault can be found with the decision. Hence, the appeal is dismissed. (Smt.R.P. SondurBaldota,J.)