Case: The Regional Director Employees State Insurance Corporation Vs. M/S. Eastern Engineering Company

1. This Appeal is directed against the judgment and order dated 5th April, 1991 passed by the learned Judge, Employees Insurance Court, Bombay in Application (ESI) No. 146 of 1984 which was filed under section 75 of the Employees State Insurance Act, 1948 (hereinafter referred to as The Act). The appellant is the opponent in the said Application. The respondent/Engineering Company and partnership firm has filed the Application challenging the order dated 7th April, 1984 directing the applicant to pay Rs.27,893.75 by way of contribution towards the employees of the said establishment. The said order was confirmed by the opponent Corporation by another order dated 30th August, 1984, which were challenged under section 75 of the Act.2. It is the case of the respondent that they are only the commission agent, who keep the goods or machinery in the godown and are not concerned with sale of goods or any other commercial transactions. The respondent had godown at Dadar and Sion to preserve the old record and furniture, so also the respondent is not a shop and number of employees working is also less to call it as a shop or establishment. The appellant/Corporation sent letter on 16th August, 1982 that the respondent company is covered for E.S.I. Contribution, which is denied by theThe appellant/Corporation passed the order demanding the amount of contribution of Rs.27893.70 and therefore, thefiled an application under section 75 of the E.S.I. Act challenging the legality of the said order. The appellant/Corporation filed reply to the Application and asserted that the establishment of the respondent is a shop and relied on the report of the inspector who had visited the establishment on 8th January, 1981 and justified its order of demand of contribution. The learned Judge of Employees Insurance Court, Mumbai framed issues. Both the parties tendered evidence by examining their respective witnesses and presented the documents. The learned Judge, after considering documentary and oral evidence, allowed the Application and set side the order dated 30th August, 1984 directing theto pay the contribution. Hence this Appeal.

Reasoning:
14. Thus, the distinction between Sections 2(9) and 2(10) is mainly wage based and the ceiling is placed on the basis of amount of wages earned by the employee. If that yardstick is applied, then we may get two types of employees in one establishment or factory. There may be different pay scales or increase in wages due to increment because of experience, skill etc. There can be skilled or unskilled workers. There may be freshers or experienced workers. On that basis, the wages may differ. However, some of these employees may be getting wages below the ceiling and some above the ceiling. However, they all are getting wages and not salary. Therefore, they all are to be considered as employees.15. This is supported by further sub section, i.e., Section 2(10) of the Act wherein the term exempted employee is defined an employee who is not liable under this Act to pay the employees contribution. That means, though he is an employee under the Act, he is that class of employee may be drawing salary or wages but above the ceiling hence is not liable to pay the employees contribution and, therefore, will not get the medical benefits under the Scheme as they are getting better payment. The legislature has thoughtfully considered the possibility of difference in the wages of the employees working under the same factory or establishment and the employees, who are getting salary less than prescribed wages, are categorized and defined under Section 2(9) of the Act. For those employees, it is obligation on the part of the employer to pay the contribution on their behalf. Section 2(9) does not only define the employees on the basis of wages but it also further defines and covers the class of employees on the basis of relationship with the employer, i.e., contractual workers who are having a temporary service and so also the employees working in other department and branches.d Counsel for the ESIC argued by giving example that the employer has to pay the contribution of the workers who are earning less than Rs.1,000/but for the application of the Act, the minimum number of employees should be 20.Thus, out of 20, there may be two employees who are drawing less than Rs.1,000/or there may be 18 employees who are drawing less thanfor those employees only the employer is required to pay the contribution. For applicability of the Act, if such criterion of 20 employees earning less than Rs.1000/is applied, then it is very easy for the employer to giveto the scheme, just by paying wages of Rs.1,001/to one or more employees. Such situation is not contemplated under the Act, as it will defeat the object of the Act.18. In the case of Employees State Insurance Corporation vs. M/s. M.M. SuriAssociates (supra), the Honble Supreme Court held that 20 or more persons should be those who fall under the definition of employee as given in Section 2(9) of the Act. The Supreme Court observed that though 6 to 7 persons drawing wages less than prescribed ceiling of the wages and other employees drawing above that ceiling and though the number is 20 or more, the scheme cannot be applied, as the definition of number of 20 employees under section 2(9) of the Act is not complete. The Supreme Court has considered the earlier rulings in the case of Regional Director, Employees State Insurance Corporation, Trichur vs, Ramanuja Match Industries, AIR 1985 SC 278  . In that case, the question before the Court was whether a partner of the firm is an employee and it was answered No because he was not drawing wages. Thus, the Court in the case of M.M. Suri has mainly applied the yardstick of wages which is defined under section 2(22) of the Act. In the said case, the Honble Supreme Court has also relied on the case of Employees State Insurance Corporation vs. Apex Engineering Pvt. Ltd., (1998) 1 SCC 86 wherein the judgment of the Bombay High Court holding that the Managing Director of thewas not an employee within the meaning of Section 2(9) of the Act was reversed. The directions given in the case of ESIC vs. Apex Engineering Pvt. Ltd. were reproduced by the Honble Supreme Court in the case of M.M. Suri. Considering those directions, what is important is that the persons should be employed on wages on any work connected with the work of the factory or establishment. In the case of M.M. Suri (supra), the Honble Supreme also specifically reproduced the finding given by the Honble Supreme Court in the case of Regional Director, Employees State Insurance Corporation, Trichur vs. Ramanuja Match Industries (supra) wherein it is observed thus:We do not doubt that beneficial legislations should have liberal construction with a view to implementing the legislative intent but where such beneficial legislation has a scheme of its own there is no warrant for the Court to travel beyond the scheme and extend the scope of the statute on the pretext of extending the statutory benefit to those who are not covered by the scheme.This proposition of law cannot be disputed, as it is a settled principal of law.19. In the said case, there were 5 officers and the number of workers were admittedly less than 20, therefore, the Supreme Court in the last paragraph of the said judgment has observed that In the present case, there is no dispute that as per the notification in question, establishment of respondent is a shop and number of employees falling within the definition of Section 2 (9) of the Act are less than 20, We, therefore, uphold the impugned judgment of the High Court that since in the establishment of the respondent, the employees number less than 20 the notification dated September 30, 1988 extending the Act to the establishment of the respondent is not applicable.20. In the judgment of M.M. Suri (supra), the Honble Supreme Court has referred and relied on the judmgent of Regional Director, Employees State Insurance Corporation, Trichur vs. Ramanuja Match Industries (supra) and ESIC vs. Apex Engineering Pvt. Ltd. (supra). As mentioned earlier, the issue was whether the partner can be covered under the definition of employee and so also whether the Managing Director can be considered as an employee. In the case of Employees State Insurance Corporation, Trichur vs. Ramanuja Match Industries (supra), he, being the partner though drawing the wages lesser than the ceiling, the partners were not the employees and rather they were the proprietors of the firm and if the number of the partners is deducted, then the total number of employees would be less than twenty. However, in the case ESIC vs. Apex Engineering Pvt. Ltd. (supra), the Supreme Court allowed the Appeal of ESIC and held that as the Managing Director remained within the permissible limits of wages as per Section 2(9) of the Act and hence it reaches the figure of twenty. Thus all the requisite conditions for applicability of the term employee as defined by the Act stood satisfied in the case."21. In the case of M.M. Suri (supra), the Honble Supreme Court also relied on the judgment of Division Bench of the Andhra Pradesh High Court in Andhra Pradesh State Electricity Board, Nellore v. Employees State Insurance Corporation, Hyderabad, (1997) Lab.I.C. 1107. In the said judgment, the Division Bench has expressed that wider meaning is to be given to definition of wages while considering Section 2(9) of the Act and it also referred Section 2(12), i.e., of the factory and Division Bench held that in the said defining clause, stress was given on the word persons and thus for the applicability of the Act, only criteria is to see if the establishment has 20 or more persons in its employment. The Supreme Court in M.M. Suris case further observed that the definition of factory has changed by Amendment Act 44 of 1966 and it was further substituted by the words "the persons employed for wages" and the word wages is specifically introduced in the Section and defined under Section 2(22) of the Act. The Honble Supreme Court in M.M. Suri has concluded that In our view, therefore, the Act would apply to an establishment only when number of employees is 20 or more and all those employees answer the description of employee contained in Section 2(9) of the Act., though the learned counsel for the appellant has argued that as per the definition under section 1(3) of the Act, it is made applicable to the establishment wherein 20 employees are employed on wages, irrespective of their wages either below or above ceiling and hence the definition of Factory or Establishment is fulfilled, cannot be accepted.These submissions are though found very impressive and compelling, in view of the judgment and ratio laid down in the case of M.M. Suri, no another view can be taken and the submissions of learned counsel cannot be accepted on this point.23. However, in the present case, the Act is applicable in view of different set of facts which I address hereafter. In the present case, the factory inspector has visited on 8th January, 1981 and he prepared his report on the same day in which he has incorporated the number of employees as per wage register from January 1978 to December 1980 and muster roll from January 1978 to January 1981.The counsel for the respondent tried to explain these figures that these figures are given at the instance and insistence of the factory inspector. He submitted that the respondent company is working as Commission agent at Mumbai having various branches at Jamshedpur, Delhi, Kolkatta and has got independent factory at Bangalore. He submitted that the number of employees who are working at the office at Mumbai, Delhi, Kolkata and Jamshedpur are mentioned and therefore, the number of these employees cannot be taken into account.25. My attention is drawn by the learned counsel for the appellant to Form No.which is Employers Registration Form RegulationThis form was filled in by the Accountant of the respondent and where the same figures of the attendance of the employees and wage roll of the employees is shown in the year 1980. Thus, the figures mentioned in the report of the factory inspector cannot be disputed. So far as counting the number of employees in the branches is concerned, Section 2(9) is very clear.26. Thus, as per the Act, the employees from all the branches are also to be taken into account for the purpose of definition of the employees. Moreover, in the evidence of Shekhar Hovaya Shetty, the witness for the applicant, who is the Chartered Accountant of the respondent, has given evidence and he has specifically mentioned that the companys independent factory situates at Bangalore in which the company manufactures pressed sheet metal components and celing jobs. Bangalore factory started in the yearand the employees of the Bangalore office are not mentioned in the submission to the factory inspector. Thus, as per his evidence, there may be less employees working at Mumbai office alone which is a HUB but the employees working in the branches, excluding Bangalore, if taken into account, the figure goes above 20 and therefore, ESI Act is applicable to this respondent.27. The appellant has taken defence that some workers in the factory are drawing wages above ceiling, i.e., then ceiling was Rs.The trial Court has committed error in putting burden to prove this fact on the respondent/Corporation. The learned Judge of Employees Insurance Court has stated that the Corporation has failed to discharge the burden on the point that 20 workers in the establishment were drawing salary below the ceiling. The burden in fact lies not on the Corporation but on theitself. The persons are in employment of the appellant and hence the fact that how much wages are paid to each of them is within the knowledge of the appellant. The Corporation when alleges that the number is 20 and they are in employment of the appellant and therefore, demands contribution, then the onus lies on the appellant to come forward and adduce evidence and show that some of the workers are paid wages above the ceiling and hence E.S.I. Act is not applicable to the appellant. The burden should be put on the person who asserts and the fact is within whose knowledge. A person may claim certain things on the basis of certain physical facts. The burden is on the Corporation to show that 20 persons were employed in the premises when it was inspected by their officer. When it is shown that the persons are 20 and it is claimed that they are drawing the wages below the ceiling, it is not possible for the Corporation to prove this fact that they are below the ceiling, as the Corporation is not the employer of these persons. About the wages and payment, the knowledge is not with the corporation but being the employer, with the appellant. Therefore, onus shifts on the appellant to prove that some of these 20 employees were drawing wages below Rs.The documentary proof of the payments and receipts of the same is with the appellant and, therefore, those things should have been produced before the learned Judge at the time of evidence by the appellant. Thus finding given by the learned Judge of Employees Insurance Court is wrong and deserves to be set aside.28. So far as coverage is concerned, the applicant admittedly is not involved in the manufacturing activities in Mumbai or other branches except Bangalore. It is considered as a shop, hence, covered under the Act. The shop is not included in the Act but by Government Notification No,dated 18th September, 1978, the Government of Maharashtra has enhanced the coverage of the ESI Act to the establishment wherein hotels, restaurants, shops, cinemas, newspaper establishments are also included. Clause No. 3 of the Schedule of the said Notification is very relevant for the purpose of of application and coverage of the Act.29. In the case of Bangalore Turf Club Limited (supra), the issue before the Court was whether Race Club is an establishment for the purposes of E.S.I. Act and whether the Turf Clubs fall within the scope of the definition of word shop as categorized in the notifications. In the said judgment, the Honble Supreme Court while considering the object of E.S.I. Act has held that E.S.I. Act should receive a liberal and beneficial construction so as to achieve legislative purpose without doing violence to the language of the enactment and the Act was enacted to provide certain benefits to employees in case of sickness, maternity in case of female employees, employment injury and to make provision in certain other matters in relation thereto. It is further held as under:The test of finding out whether professional activity falls within the meaning of the expression establishment is whether the activity is systematically and habitually undertaken for production or distribution of the goods or services to the community with the help of employees in the manner of a trade or business in such an undertaking. If a systematic economic or commercial activity is carried on in the premises, it would follow that the establishment at which such an activity is carried on is a shop.