1 72 fa 1182.10.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1182 OF 2010 Employees State Insurance Corporation ..Appellant. Vs. Maker Chamber VI premises Co-op. Society Ltd. ..Respondents. Mr.P.M.Palshikar for appellant. Mr.R.L.Nerlekar for respondents. CORAM : K.K.TATED, J. DATED : 12/01/2011. PC: 1 Heard learned counsel for parties. 2 This appeal is preferred by original opponent against the judgment dated 13th July, 2009 passed by the Employees Insurance Court, Mumbai in Application (ESI) No.39 of 1999. 3 A few facts of the matter are as under: The respondents is a Co-operative Society registered under Maharashtra Co-operative Societies Act, 1960. The respondents-society is not engaged in any business activities. The respondents-society is not carrying out any manufacturing process with or without power, nor does it provide any commercial service either to gains or profits. Therefore, the 2 72 fa 1182.10.doc respondents-society is not covered under the Factories Act, 1948 or under the Bombay Shops and Establishment Act, 1948. Respondents-society is managed by the Executive Committee, who are the honorary members and the Executive Committee is elected every three years as per the requirement of the Maharashtra Co-operative Societies Act, 1960. The manager of the respondents-society looks after the day to day maintenance activities of the building and statutory requirements of the respondents. 4 The respondents have received a letter dated 6th September, 1993 from the appellant intimating that the respondent-society falls under the provisions of section 1 (5) of the Employees State Insurance Act with effect from 23rd June, 1993 provisionally. The respondents have granted code no.31-32879-102. Therefore, the respondents by their letter dated 23rd September, 1993 intimated to the appellant that the provisions of Employees State Insurance Act do not apply to them. 5 After the letter of the respondents dated 29th September, 1993 the Inspector of the appellant visited the premises of the respondents and submitted a report dated 13th December, 1995. The respondent with a view to avoid imposition of penalty and fine and also prosecution by the appellant, without prejudice to 3 72 fa 1182.10.doc its rights and contentions, expressed their readiness to implement the Act under protest with a condition that the appellant will refund back the amount of contribution in the event of the decision by the court to the effect that the Employees State Insurance Act is not applicable to the respondents-society. 6 In view of these facts and circumstances, the respondents accordingly implemented the provisions of Employees State Insurance Act right from June, 1993 in respect of the persons employed through the contractor. 7 The respondents preferred an Application (ESI) no.39 of 1999 before the Employees Insurance Court challenging the appellant’s notice dated 6th September, 1993 issued under section 1 (5) of the Employees State Insurance Act. The main contention raised by the respondents in their application that action of the appellant-corporation covering the respondents under the Act vide notice dated 6th September, 1993 and report dated 13th December, 1995 is illegal and therefore, the same is liable to be set aside. 8 The Employees Insurance Court by its order dated 13th July, 2009 declared that the respondents-society is not coverable under the provisions of the Employees State Insurance Act as per the notification dated 18th September, 1978 issued by the 4 72 fa 1182.10.doc Government of Maharashtra. The Employees Insurance Court mainly relied on following judgments: 1 Kiran Industrial Premises Co-operative Society Ltd. vs. Janata Kamgar Union & ors. reported in 2001-I- CLR-1046 (Bombay High Court). 2 Unreported Judgment of the Bombay High Court, in First Appeal No. 503 of 1990, 3 2001-I-LLJ-1413 (SC) (DB) in the case of Management of SOM Vihar Apartment Owners Housing Maintenance Society Ltd. Vs. Workmen C/o. Indian Engineering and General Mazdoor. 4 1997-II-CLR-1075 (Bombay High Court) in the case of Backbay Premises Co-operative Society Ltd. Vs. Union of India and others. 5 2008-LLR-1185 (Bombay High Court) in the case of Jagvatibai S.Taak (Smt.) M/s. S.D.Paithane, Presiding Officer, VIII Labour Court, Mumbai and Anr. 6 2008-LLR-362 (Bombay High Court) in the case of Regional Director, ESI Corporation vs. Tulsiani Chambers Premises Co-operative Society. 7 2008-LLR-54 (Karnataka High Court) in the case of Prema Govinda (Smt.) vs. Karnataka Small Scale Industries Association, Bangalore. 5 72 fa 1182.10.doc 8 2008-1-CLR 217 (Bombay High Court) in the case of Regional Director, ESI Corporation vs. Dalamal Towers Premises Co-op. Society Ltd. 9 The learned counsel appearing on behalf of appellant- corporation submits that the learned Judge failed to appreciate that the employees employed by the respondents are rendering economic services and those services are in demand and therefore the respondents fall within the ambit of “shop” notified by the State Government. He further submits that Employees State Insurance Court erred on relying on the authorities submitted by the respondents for deciding the controversy in the present case. 10 In the above mentioned facts and submissions, the question arising in the present appeal is ‘whether the trial court was right in holding that the respondents/original applicants are not covered under the provisions of the Employees State Insurance Act as per the notification dated 18th September, 1978 issued by the Government of Maharashtra?.’ 11 I heard both the sides at length. 12 The learned counsel appearing on behalf of respondents submitted that the issue involved in this case is already covered by several judgments of this court. He relies on the judgment passed by this court (Coram: Anoop V. Mohta, J.) dated 2nd 6 72 fa 1182.10.doc November, 2007 in group of First Appeal No.844 of 2004, 510 of 2006, 309 of 2006, 823 of 2006, 724 of 2004, 742 of 2004 and 2019 of 2006. He also relies on judgment dated 16th March, 1995 passed by this court in First Appeal No.508 of 1990 (ESI Corporation vs. Adhyaru Industrial Premises Co-operative Society Ltd.). He submits that in those cases also the appellant issued notices to the Co-operative society holding that they are covered by Employees State Insurance Act. The learned counsel appearing on behalf of appellant is not disputing this fact. He also agreed that the Judgment dated 2nd November, 2007 passed by this court (Coram: Anup V.Mohta, J.) fully covers the issue involved in the present First Appeal. 13 In view of the submissions made by both the counsel on behalf of respective parties and the judgment of this court dated 2nd November, 2007, I can safely hold that the appeal preferred by Employees State Insurance Corporation against the order dated 13th July, 2009 passed by learned Judge, Employees Insurance Court, Mumbai in Application (ESI) No.39 of 1999 is liable to dismissed. 14 Appeal is dismissed at the stage of admission itself. 15 No order as to costs. (K.K.Tated, J.)