IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25 - 7 - 2011 CORAM THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO and THE HONOURABLE MR. JUSTICE M. VENUGOPAL Writ Appeal No. 1082 of 2011 1. The Manager Local Office (Salem) ESI Corporation 14/13 (Upstairs) Kalaimagal Street Swarnapuri, Salem 2. The Deputy Director (Inspection) ESI Corporation 143 Sterling Road Chennai ... Appellants vs. M/s Narasus Coffee Company 16 Court Road Johnsonpet PB No. 701, Salem Rep. by its Managing Partner ... Respondents Appeal filed under Clause 15 of the Letters Patent against the order dated 18.9.2009 made in W.P. No.16865 of 2003. Writ Petition presented under Article 226 of the constitution of India for issuance of a Writ of Prohibition prohibiting the respondents 1 and 2 from enforcing provisions of the ESI Act to the Petitioner's head office and outlets situated in Tamilnadu and Pondicherry. For Appellant : Mr. M. Venkatachalapaty, SC for Mr. G. Bharadwaj For Respondent : Mr. S. Ravindran for M/s T.S. Gopalan & Co. JUDGMENT (Delivered by ELIPE DHARMA RAO, J.) The present writ appeal is preferred against the order of the learned single Judge dated 18.9.2009 passed in W.P. No. 16865 of 2003 whereunder the writ petition filed by the respondent prohibiting the authorities from enforcing the provisions of the Employees' State Insurance Act (in short, "the Act") to the petitioner's head office and outlets situated in Tamil Nadu and Pondicherry, was allowed. https://hcservices.ecourts.gov.in/hcservices/ 2. The respondent firm carries on the business of manufacture and sale of coffee. The manufacturing process involves roasting of coffee seeds, grinding them into powder, blending and packing. The manufactured coffee is being sold through a network of branches in the State of Tamil Nadu and Pondicherry. According to the respondent, the above establishments carrying the manufacturing of products are seasonal factories within the meaning of Section 2(19A) of the Act. The second appellant by issuing notice dated 13.7.1993, sought to cover the respondent's establishment under the provisions of the Act and thereby directed the respondent to pay contribution for the period from 16.5.1990 to March, 1991 at Rs.1,55,995 on a total wages of Rs.21,51,637.18 and contribution of Rs.6,252/- towards repairs and maintenance of buildings at Rs.86,369.71. Thereafter, the 2nd appellant by order dated 25.7.1994, issued under Section 45A of the Act directing the respondent to pay contribution of Rs.1,62,256/- within a period of 15 days. Against the aforesaid action of the appellants, the respondent referred W.P. Nos. 14965 & 14966 of 1994. By order dated 17.02.1997, this Court held that the provisions of the ESI Act are not applicable to the respondent and accordingly, allowed the writ petitions. Relying on the aforesaid decision, the respondent firm sought for prohibition prohibiting the appellants from enforcing the provisions of the ESI Act. 3. The stand of the appellant Corporation before the learned single Judge was that when there was an efficacious alternative remedy under Section 75 of the ESI Act, the writ petition should not be entertained. It was also contended that the earlier decision was relating to the factories of the respondent under Section 2(12) of the Act, whereas under the present Proceedings, the respondent's Head Office and other Branches have been included as an Establishment under Section 1(5) of the Act. 4. On the aforesaid contentions raised, the learned single Judge by following the earlier decision of this Court dated 17.02.1997 in W.P. Nos. 14965 of 1994 and 14966 of 1996, held that the present respondent firm cannot be brought under the purview of the ESI Act. Aggrieved by the said order, the present writ appeal has been preferred by the ESI. 5. Learned Senior Counsel appearing for the appellant contended that the writ of Prohibition is not maintainable as against the ESI Corporation, which is not a Tribunal. He further contended when there was alternative remedy under Section 75 of the Act, the respondent has invoked the extra-jurisdiction of this Court under Article 226 of the Constitution of India and the learned single Judge ought not to have passed the impugned order. He further contended that the decision relied on by the learned single Judge in the impugned order is distinguishable to the facts of the present case inasmuch as in the case on hand, the levy of contribution was on the Head Office and other Branch Offices throughout Tamil Nadu, and not https://hcservices.ecourts.gov.in/hcservices/ to the factory at Salem, which was covered under Section 1(5) of the Act as Establishment. 6. Learned counsel appearing for the Respondent submitted that as against the decision relied on by the learned single Judge in W.P. No. 14966 of 1994, W.A. No. 1410 of 2001 was preferred by the ESI Corporation and the same was dismissed confirming the order of the learned single Judge and, therefore, the impugned order does not call for any interference. 7. Heard the learned counsel appearing for the parties and perused the records. 8. The point for consideration is whether the order passed in the earlier round of litigation by this Court is covered by the facts and circumstances stated in the present Inspection report based on which a notice was given. 9. In order to appreciate contentions raised by the learned Senior Counsel for the appellants, we have carefully gone through various provisions of the Employees' State Insurance Act. The Act was enacted to provide certain benefits to employees in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. The Act although extends to the whole of India but in terms of sub-section (3) of Section 1 of the Act, it may come into force on such date or dates as the Central Government may, notifying in the Official Gazette, appoint and different dates may be appointed for different provisions of the Act and for different States or for different parts thereof. However, sub-section (4) of Section 1 states that the Act at the first instance, shall apply to all factories other than seasonal factories provided that nothing contained in this sub-section shall apply to a factory or establishment belonging to or under the control of the Government whose employees are otherwise in receipt of benefits substantially similar or superior to the benefits provided under this Act. 10. “Factory” is defined under Section 2(12) of the Act which reads as under: “2. (12) ‘factory’ means any premises including the precincts thereof— (a) whereon ten or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on, or (b) whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on https://hcservices.ecourts.gov.in/hcservices/ without the aid of power or is ordinarily so carried on, but does not include a mine subject to the operation of the Mines Act, 1952 (35 of 1952) or a railway running shed;” 11. Section 40 of the Act enjoins a duty upon the principal employer to pay contribution at the first instance. Section 41 provides for recovery of contribution. Section 42 provides for general provisions as to payment of contributions whereas Section 43 provides for method of payment of contribution. Sections 44 and 45, which are relevant for these matters, read as under: “44. Employers to furnish returns and maintain registers in certain cases.— (1) Every principal and immediate employer shall submit to the Corporation or to such officer of the Corporation as it may direct such returns in such form and containing such particulars relating to persons employed by him or to any factory or establishment in respect of which he is the principal or immediate employer as may be specified in regulations made in this behalf. (2) Where in respect of any factory or establishment the Corporation has reason to believe that a return should have been submitted under sub- section (1) but has not been so submitted, the Corporation may require any person in charge of the factory or establishment to furnish such particulars as it may consider necessary for the purpose of enabling the Corporation to decide whether the factory or establishment is a factory or establishment to which this Act applies. (3) Every principal and immediate employer shall maintain such registers or records in respect of his factory or establishment as may be required by regulations made in this behalf." 12. Coming to the contentions raised, the contention of the learned Senior Counsel for the appellants is that the Head Office and the Branch Offices of the respondent firm do not come under 'factory' because as Office, they carry on the business throughout the year and, therefore, it comes within the purview of the ESI Act. On the contra, the stand of the respondent firm is that as this Court by the order passed in the writ petition as well as in the writ appeal had already held that the provisions of the ESI Act would not be applicable to the respondent, the appellants have no jurisdiction to issue fresh notice. https://hcservices.ecourts.gov.in/hcservices/ 13. Coming to the facts of the case, the appellant Corporation on the basis of the Inspection Report dated 21.01.2003, has issued a notice dated 06.3.2003 informing the respondent firm that it comes under the purview of Section 1(5) of the Act w.e.f. 01.4.2002 and had allotted Code No.51-73722-09. By another communication addressed on the same day, the appellant Corporation has called upon the respondent firm to make contribution for the employees in the Head Office and the branches. The respondent firm replied by stating that in view of the order on 17.02.1997 passed by this Court in the earlier Writ Petitions, they are not liable to pay any contribution. In the reply, it is nowhere denied by the respondent firm that it does not come under the purview of Section 1(5) of the Act and they had not stated their stand with regard to the Head Office. All they have stated is only in respect of the Factory at Salem, which was excluded by the earlier decision of this Court. 14. From the materials on record, it is seen that after replying to the notice dated 06.3.2003, the respondent has approached this Court by way of writ petition and the learned single Judge without considering the facts and the changed circumstances in the present case, by following the earlier decision, has allowed the writ petition. In the reply, the respondent has not stated anything about the employees at the Head Office and the Branches Offices. On the other hand, they had relied only on the earlier decision. It is seen from the materials produced that at present, the respondent has enlarged its business by opening more branches all over the State. Further, prima facie, the employees of the Head Office could not be stated as seasonal employees as they would be doing their office duty throughout the year. The facts of the earlier case in 1997 was different to the facts of the present case. 15. In (2007) 1 SCC 705 (Srinivasa Rice Mills v. ESI Corporation), in a similar set of facts, the Supreme Court observed as follows:- "32. We have noticed hereinbefore the findings of the learned Employees' Insurance Court. It has proceeded on the basis that the rice mill is a factory. We will also presume that it was not a seasonal factory. Even otherwise, when the provisions of the Act are extended by issuance of notification, recourse cannot be taken to sub-section (4) of Section 1 of the Act." On arriving at such a conclusion and finding that the respondent firm was not given opportunity to state its stand as it had not replied earlier, the Supreme Court directed as follows :- "33. We, therefore, are of the opinion that having regard to the facts and circumstances of this case the interest of justice would be subserved if the appellants are given an opportunity of hearing. Keeping in view the fact that the appellants now know the allegations made against them, no fresh notice need be served. The appellants may file their returns https://hcservices.ecourts.gov.in/hcservices/ and also all other books of accounts before the authorities under the Act within six weeks from date. The authorities shall give an opportunity of hearing to them and determine the question as to whether a jurisdictional fact existed for application of the provisions of the Act in cases of the respective employers. In the event, it is found, upon perusal of all the documents whereupon the employers may rely upon and on the basis of such information as may be sought for or directed to be furnished by the authority to the employer and upon hearing them that the provisions of the Act apply or not the authorities may proceed as against them as is permissible in law." 16. In the present case, the learned single Judge without considering the changed circumstances, by simply following the earlier decision of this Court, has allowed the writ petition. The learned single Judge has failed to consider the facts of the present case in its proper perspective. In view of the above, the order of the learned single Judge cannot be sustained. 17. To give finality to this litigation, we consider it appropriate to set aside the order of the learned single Judge directing the appellants to give an opportunity to the respondent. Accordingly, whatever materials the respondent is having may be placed before the authority for consideration and the appellants, on consideration of the same, is directed to pass appropriate orders in accordance with law. Accordingly, the writ appeal is allowed with the above direction. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gri To 1. The Manager Local Office (Salem) ESI Corporation 14/13 (Upstairs) Kalaimagal Street Swarnapuri, Salem https://hcservices.ecourts.gov.in/hcservices/ 2. The Deputy Director (Inspection) ESI Corporation 143 Sterling Road Chennai +1 CC to M/s.G.Bharadwaj, Advocate, S.R.No.45240 +1 CC to Mr/s.T.S.Gopalan and Co, Advocate, S.R.No.44774 W.A. No. 1082 of 2011 RS(CO) SRA(19/8/2011) https://hcservices.ecourts.gov.in/hcservices/