New Mangalore Port List.Workers ... vs Reg.Dir.,Esi Corp.,Bangalore

3. Brief facts leading to the filing of this appeal are as follows:- Section 1(5) of the ESI Act enables the appropriate government to issue notification in respect of any other establishment or class of establishments, industrial, commercial, agricultural or otherwise. In exercise of its power under Section 1(5) of the ESI Act, a notification dated 22.1.1986 was issued by the Government of Karnataka to extend the provisions of the ESI Act to certain areas, in and around the city of Mangalore. The said notification specified that the provisions of the Act inter-alia would apply to certain shops and establishments. Appellant-New Mangalore Port Listed Workers Managing Committee, Panambur (for short “Workers Managing Committee”) was established on 1.3.1983. The object of the said Committee was to deploy listed workers for loading and unloading of the import/export of cargo in the Mangalore Port Premises. In accordance with the above notification, ESI Corporation by its letter dated 5.5.1987, directed the appellant to submit Form No.1 saying that the provisions of the ESI Act stood attracted against the appellant. The Committee raised objections, claiming that the appellant is engaged in the loading and unloading operations in the premises of NMPT and that the appellants and their workmen were neither a “shop” nor an “establishment” so as to attract the provisions of the ESI Act. Rejecting the said objections, ESI Corporation issued Show Cause Notice dated 14.8.1987 to the Workers Managing Committee calling upon them to make the contribution. The Appellant approached the ESI Court under Section 75(g) of the ESI Act claiming that the provisions of the ESI Act were not applicable to them as they were governed by the provisions of Major Port Trust Act, 1963 and that the Central Government is the appropriate government with respect to the appellant-Committee. The petition filed by the appellant was dismissed by the ESI Court by the order dated 16.4.1993. Aggrieved by the said order, the appellant filed appeal before the High Court of Karnataka in and by which, the High Court remanded the matter back to the ESI Court, with a direction to frame preliminary issue regarding the applicability of State Government’s notification to the Committee.

4. ESI Court by order dated 31.12.2001, held that the notification of the State Government was not applicable to the Committee as the “appropriate government” to extend the provisions of the ESI Act to the said Committee is the Central Government. Aggrieved by the said order, respondent-Corporation preferred appeal before the High Court of Karnataka. The High Court set aside the findings of the ESI Court and held that the Managing Committee is covered within the purview of the notification issued by the State Government. Aggrieved by the said order, the appellant has filed this appeal by way of special leave.

11. The point to be considered is between 1983 till 15.3.1990 whether the rendering of services of loading and unloading by appellant- Management Committee to NMPT was an integral part of NMPT and whether the State Government is the “appropriate government” to issue the notification.

14. In the result, the appeal is allowed and the impugned judgment dated 5.10.2007 passed by the High Court in Miscellaneous First Appeal No.1379/2002 (ESI) is set aside and the matter is remitted back to the High Court for consideration of the matter afresh in the light of the above discussion and in accordance with law. The High Court shall afford sufficient opportunity to both parties to file additional affidavits/counter affidavits and additional documents if any, and proceed with the matter in accordance with law as expeditiously as possible.

October 28, 2014