1. This is an appeal under Sub-section (2) of Section 82 of the Employee's State Insurance Act No. 34 of 1948 (hereinafter called the Act) against the order dated 1-6-1959 passed by the Employee's Insurance Court.
2. The petitioner Inayat Hussain claims to be a co-owner of the land measuring 586 Bighas in Ujjain Tehsil having 1/3rd share therein. He further claimed an interest to the extent of two paisa in a rupee (i.e. 1/32) in the Nazarali Mills with compound, Madhav Cotton Press and houses located at what is called 'Bhuri Ka Adda'. The interest of the petitioner which he has admittedly claimed as a co-owner of the Mills and of the land aforesaid was attached by the Tehsildar Ujjain for realisation of the employers' and employee's contribution payable under Section 40 of the Act.
3. And the short question for consideration in this appeal is whether the appellant Inayat Hussain falls in the category of Employers' as defined in the Act.
4. The appellant's contention is that although he had been managing the affairs of the Mills under the instructions of and along with his deceased father Seth Lukmanbhai upto the year 1938 both before the appointment of a receiver in 1936 and even later till 9-12-1938 when he was ousted forcibly from management by the then receiver Shri Baburao Suryavanshi and that thereafter the appellant had never acted in employing any one in the said Mills and was never in management which was in the hand of another co-owner Seth Mohammad Hussainbhai and that consequently the appellant was not an employer and consequently was not liable to pay the contribution aforesaid and that his share in the land as well as in the Mills including their premises etc. could not have been attached.
5. This contention was put forth by him before, the Employee's State Insurance Court by means of an application dated 25-4-1949. The said court after giving a hearing to the appellant as well as Employees' State Insurance Corporation overruled his contention and held that the appellant fell within the definition of the term 'Principal Employer' as defined in the Act and that consequently his property and his interest could be attached and sold for the realisation of the employers' and employees' contribution payable under Section 40 of the Act. Consequently hisapplication containing the aforesaid objection was dismissed.
6. In this appeal the same contention is reiterated.
7. The only question to be considered in this appeal, therefore, is whether the appellant can be called 'the principal employer' since under Section 40 such person is liable to pay the contribution. That term as defined in Section 2(17) is as follows :
' 'principal employer' means :
(i) in a factory, the owner or occupier of the factory and includes the managing agent of such owner or occupier, the legal representative of a deceased owner or occupier, and where a person has been named as the manager of the factory under Clause (e) of Sub-section (1) of Section 9 of the Factories Act, 1934 (XXV of 1934), the person so named;
(ii) in any establishment under the control of any department of any Government in India, the authority appointed by such Government in this behalf or where no authority is so appointed, the head of the Department;
(iii) in any other establishment, any person responsible for the supervision and control of the establishment.'
8. It is clear from this very comprehensive definition that the principal employer includes the owner. It is not disputed by the appellant that he is one of the owners of the Nazarali Mills and he admittedly owns 1/32th share in the properties of the Mills. The Collector acting under Section 5 of the Revenue Recovery Act read with Section 73 of the Act in question had directed attachment of the properties of the Mills for the recovery of the contribution which had remained unpaid by his order dated 14-11-1958. The appellant's objection to such attachment could only succeed in case he is not an employer liable to pay the contribution. But as indicated above he as an admitted owner is an employer. Consequently the objection is clearly untenable. The Court below was therefore right in rejecting the same.
9. Mr. Sanghi for the appellant contended that it would be unfortunate in case the person who is not at all in the management is considered to be the employer when he has nothing to do with the matter of employment.
10. In our opinion this contention does not take sufficient account of the definition clause of the term 'principal employer' and the liability created by Section 40 of the Act of such a person. Since the term includes an owner it is not correct for the appellant to say that he is not liable to pay the contribution although he is the owner.
11. The appeal is therefore without force and is dismissed with costs.
12.Krishnan, J. I agree.