1. These two appeals arise out of applications made by the Employees' State Insurance Corporation, Bombay, to recover from the appellants before us various sums of moneys as employee's contribution to the insurance fund for two different periods.
2. Appeal No. 476 arises out of an Application No. 39 of 1960 whereas Appeal No. 477 arises out of Application No. 130 of 1960. In the first application the claim is Rs. 11,877 for the period commencing from 29 September, 1957 to 31 October, 1959 and in the second the amount claimed is Rs. 5,382.50 for the period commencing from 2 November, 1959 to 30 September, 1960.
3. The allegation is that in one compound the two following factories are working : Usha Dyeing, Bleaching and Printing Mills (Private), Ltd., and Usha Prints (India) (Private), Ltd., and they constitute one factory as defined in Sub-section (12) of S. 2 of the Employees' State Insurance Act, 1948. Usha Dyeing, Bleaching and Printing Mills (Private), Ltd., which we will hereafter call 'the dyeing company' was made opponent 1 and Usha Prints (India) (Private), Ltd., which we will hereafter call 'Usha Prints,' was made opponent 2. It was alleged that opponent 1 paid the employees' contribution in respect of employees of opponent 1 but did not pay the contribution regarding the employees of opponent 2.
4. The entire cause of action was adumbrated in detail in an earlier application, which is Application No. 120 of 1957, in respect of a period commencing from 27 November, 1954 to 28 September, 1957, which was also heard along with these two applications. In that application the dyeing company only was made a party and the Usha Prints was made a party subsequently in 1959. The details of the allegations are to be found in Para. 3 of that petition. It was there alleged that the Usha Prints were situated in the same premises as the dyeing company; that the employees of the Usha Prints are engaged in the work which is ordinarily the part of the work of the dyeing company or is preliminary to that work or is incidental to that work. They keep a common stock of stores and chemicals for both the concerns, that there is a common sizing plant for both the concerns and there are two water-extractors run by power and owned by Usha Prints and are used by both the concerns. In the same premises is carried on the work of ironing by Usha Prints and the rolling of the plain dyed cloth of dyeing company, and packing of the finishing goods is done by Usha Prints. The processes of bleaching, dyeing and printing of both the concerns are continuous and common. Sizing process is also common and that steam was utilized from a boiler for the purpose of Usha Prints for the drying of the printing material.
5. The opponents denied their liability. They admitted that the compound is owned by Lalchand Daulatram, a private partnership, who also originally owned printing and dyeing works as private concerns. Usha Prints was first formed and dyeing company was formed afterwards in 1948. They also stated that there are other private companies also in the same compound but all the four companies are owned by the same family. They however, contended that each of these concerns is a separate concern, that accounts are separately concern, that accounts are separately maintained and the business is separately done. It was said that the boilers in question belong to the dyeing company but steam was purchased by the Usha Prints from the dyeing company, and was conveyed in pipes from the premises of the dyeing company to the premises of the Usha Prints to the printing tables. The steam was discharged under the plates of the printing tables thus heating the plates for the purpose of drying the prints.
6. The learned trial Judge did not accept the contention of the applicant that a water-extractor run by power was used by Usha Prints. The learned Judge held that the steam which was carried under the drying tables was the only power used in the present case. The learned Judge also held that the steam which is transmitted through pipes was not transmitted by means of human or animal agency must be considered to fall within the words 'mechanically transmitted' and, he, therefore, held that Usha Prints was liable for the contribution to the fund. It directed Usha Prints to pay Rs. 11,252 in Application No. 39 of 1960 and Rs. 5,382.50 in Application No. 130 of 1960.
7. Mr. Bal argued that steam by itself can never be regarded as power and if that is so, the premises of Usha Prints do not fall within the meaning of the 'factory' as contained in the Employees' State Insurance Act, 1948. 'Factory' is defined by Clause (12) of S. 2 to mean :
'. . . any premises including the precincts thereof wherein twenty or more persons are working or were working 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 . . .'
8. The question in the present case is whether a manufacturing process is being carried on with the aid of 'power.' There is no doubt - and it is admitted - that manufacturing process is being carried on. It is, however, contended that in the Usha Prints only hand-printing is done and no power is used. The answer that is made on behalf of the applicant is that use of steam for the drying process amounts to the use of power and, therefore, manufacturing process is carried on with the aid of power. We agree that steam by itself cannot be regarded as power. Though gaseous, it is as much tangible as water. It cannot be contended that water by itself can be regarded as power, for its use might make every restaurant and hotel a factory. In each case it is the way in which the steam or the water is used that has to be considered. The case of Doswell v. Cowell (1906) 95 L.T. 38 relied upon by Mr. Jayakar brings out the distinction stated above. In that case steam under pressure was used for injecting water into the boiler which generated the steam and hence it was held that the premises were a factory.
9. The residuary definition, Clause (12) of S. 2 says that the expressions 'manufacturing process' and 'power' shall have the meanings as are assigned to them in the Factories Act, 1948. In order to find whether power is used in Usha Prints, we must go to the definition contained in the Factories Act.
10. Clause (g) of S. 2, of the Factories Act, 1948, defines 'power' to mean :
'... electrical energy or any other form of energy which is mechanically transmitted and is not generated by human or animal agency.'
11. The question is whether the present case falls within this definition. Mr. Bal plausibly argued that steam like water is a tangible thing which can be seen and felt by any one and every one. Mere use of steam or water cannot be regarded as use of power even if it is used for the manufacturing process. We agree that if that were so, the case would clearly have been out of the Act. On the other hand, one must bear in mind that the word 'power' includes any other form of energy which must be transmitted mechanically. It cannot be gainsaid, and would be proved to be so, by any elementary book of science that heat is always considered to be a form of energy. In the present case the heat energy is transmitted to the drying tables through the vehicle of steam, though it need not always be so. Even (hot) air can transmit heat for the same purpose. In the present case, a boiler is used to generate steam and the pressure in the boiler drives the hot steam through pipes to the drying tables. Since steam in the boiler is not generated by human agency, the only question is whether it is transmitted mechanically. According to science of elementary mechanics, mechanical process of transmission may consist of a sudden or steady pull from the front or a sudden or steady push from behind. In the present case, if constant pressure is maintained in the boiler which transmits the steam and along with it the heat energy to the printing tables, then it follows that the definition is satisfied.
12. It is true that in the application there was nothing to show the capacity of the boiler or the pressure under which it worked. But some of the admissions made by the opponents clearly showed that boiler was being worked not only for the Usha Prints but also for dyeing company. It could not, therefore, have been a small boiler. In order that effective justice may be done, we thought it proper to take additional evidence under our powers under order XLI, rule 27, of the Civil Procedure Code, and we, therefore, called upon the appellants to produce one of the directors and the boiler attendant to give evidence in Court. We also directed the appellants to produce the licence or licences in respect of the boilers utilized by the dyeing company.
13. Mr. Om Prakash Mehra, one of the directors of Usha Prints, gave evidence and he said steam is led to Usha Prints by means of pipes but the boiler belongs to the dyeing company and that the boiler is licensed by the boiler inspector. The Usha Dyeing Company employs a boiler attendant and that the pressure in the boiler was known only to the attendant. The boiler attendant, Kalamiya Aminalla, produced the licences for the three boilers in use and said that the pressure of the boilers can be over 100 lb. But the usual working pressure is about 80 or 85 lb. This statement is confirmed by the licences which we have exhibited as Exs. 1, 2 and 3 in appeal. We must, therefore, hold that power is used in the manufacturing process and accordingly the appellants are liable to contribute towards the employees' insurance fund.
14. There was a second branch of argument of Mr. Jayakar which did not require the consideration whether the heat of the steam was power employed in the Usha Prints. It was alleged in the application as mentioned earlier that the printing work of Usha Prints was ironed in the same premises and it is argued that since electrical power is used for that purpose, even if we had not rejected the earlier contention, Usha Prints must fall within the definition of the word 'factory' as contained in the present Act. In this connexion Mr. Jugalkishore Lalchand admitted in his evidence that ironing of the Usha Prints was done by a contractor and it is done by electrical iron. He also admitted in further cross-examination that the sketch produced by the inspector correctly represented the departments of the Usha Prints and the dyeing company.
15. Now, the sketch is given at p. 37 of the record which shows that one particular shed has got three sections entrance to each of which is common. In the first section ironing work is done for Usha Prints, in the second section which is in the centre the dyeing cloth of Usha Dyeing Company is rolled and in the third section the finished goods of Usha Prints are packed. It may be that for the sake of convenience different sheds are made but that does not necessarily show that these are completely disconnected processes. Both the ironing and packing for Usha Prints are done in the same shed and we do not see why we should regard it as a separate process belonging to a separate person.
16. It is very vehemently argued by Mr. Bal that the ironing is done by a special contractor who does not only the ironing of Usha Prints but also of others and, therefore, it cannot be regarded as a department of Usha Prints. Even assuming that for the sake of convenience a private contractor is employed, even so it is impossible to hold that the ironing department is not a part and parcel of Usha Prints. In a large number of factories for great many reasons contractors are employed to do certain portion of the work but they are directly under the supervision of the managers of the factory. Unless clear proof were afforded which showed that this contractor had nothing to do with the Usha Prints, that he was never under the control of the managers of the Usha Prints and he was so completely an independent contractor that he must be regarded as separate entity, inference must necessarily be that the ironing department is a part and parcel of the Usha Prints. As admitted, Usha Prints uses electrical energy for the purpose of ironing and though ordinarily mere use of electrical energy may not be regarded as bringing the case under the Act, since the Factories Act defines the word 'power' to mean electrical energy, the use of this energy for any process, though not for driving any machinery, must bring the case within the definition. On this ground also we must hold that the appellants are liable to make the contribution.
17. It was argued by Mr. Bal that to call upon them to contribute to the fund for such a long period after so many years would be doing injustice since they have not recovered these contributions from their employees. In our view, that does not alter the question of liability if the appellant is liable in law. Even otherwise, the first application was made in 1957 for the period commencing from 27 November, 1954 to 28 September, 1957, first against the Usha Dyeing Company, and later on against the Usha Prints. The appellants had notice that a claim was being made against them for contribution under the Act. It is not, therefore, as if the appellants have been taken by surprise when the present applications were made for the period commencing from 29 September, 1957 to 31 October, 1959. Under these circumstances, in our view, there is no such injustice that the Court should dismiss these applications only on the ground of delay. The question that the delay was wrongly condoned by the trial Judge has not even been argued before us.
18. In the result, the appeals fail and are dismissed with costs.