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Salem Malai Murasu Vs. Employees State Insurance Corporation Through the Manager and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Reported in(1975)1MLJ242
AppellantSalem Malai Murasu
RespondentEmployees State Insurance Corporation Through the Manager and anr.
Cases ReferredLimited v. E.S.I. Corporation
Excerpt:
- - 8. accordingly these appeals fail and are dismissed, with costs one set......act, 1948. one was filed by the employees' state insurance corporation and the other by salem malai murasu. both substantially raise the same question, viz., whether salem malai murasu (the appellant in these appeals) was liable to pay employees contribution for the period 1st april, 1960 to 30th june, 1964, in respect of the publishing or managerial section. malai murasu is engaged in the publication of the tamil daily malai murasu . it has three departments, (1) editorial, (2) printing and (3) publishing, or managerial. its offices are located at no. 6, tiruchi main road, salem-1 the insurance court held that malai murasu was liable to pay the contribution demanded and these two appeals have been preferred by salem malai murasu.2. one of the defences of malai murasu was that the.....
Judgment:

K.S. Venkataraman, J.

1. These two appeals arise out of a common order dated 26th December, 1970 of the Employees' Insurance Court (District Court) Salem in respect of two applications filed under Section 75 (2) of the Employees' State Insurance Act, 1948. One was filed by the Employees' State Insurance Corporation and the other by Salem Malai Murasu. Both substantially raise the same question, viz., whether Salem Malai Murasu (the appellant in these appeals) was liable to pay employees contribution for the period 1st April, 1960 to 30th June, 1964, in respect of the Publishing or Managerial Section. Malai Murasu is engaged in the publication of the Tamil Daily Malai Murasu . It has three departments, (1) Editorial, (2) Printing and (3) Publishing, or Managerial. Its offices are located at No. 6, Tiruchi Main Road, Salem-1 The Insurance Court held that Malai Murasu was liable to pay the contribution demanded and these two appeals have been preferred by Salem Malai Murasu.

2. One of the defences of Malai Murasu was that the claim of the Corporation to levy contribution was time-barred. Here, it is necessary to mention that a new provision, Section 77 (1-A) was added by Act XLIV of 1966 with effect from 28th January, 1968 and it says that every application under Section 75 (2) shall be made within three years from the date on which the cause of action arose. Here, E. I. A. No. 2 of 1966 had been filed by the Corporation before 28th January, 1968 and so, this provision would not apply. But, the appellant' s contention was that the claim was time-barred under Rule 17 of the Rules framed under the Act. That Rule ran thus:

Every application to the Court shall be brought within twelve months from the date on which the cause of action arose or, as the case may be, the claim became due ;

3. The contention of Malai Murasu before the Insurance Court was that a major portion of the claim, if not the whole claim, had arisen more than 12 months before the date of the application. But, Rule 17 of the Rules was held to be ultra vires in a Bench decision of this Court in Solar Works v. E. S. I. Corporation, Madras : (1963)IILLJ597Mad , the ground of the decision being that the Act itself did not expressly permit the Government to publish any rules regarding limitation. The same view was taken by a Bench of the Bombay High Court in Employees' State Insurance Corporation v. Bharat Barrel and Drum Manufacturing Company : (1967)ILLJ625Bom , and that was affirmed by the Supreme Court in Bharat Barrel and Drum Manufacturing Company Private Limited v. Employees' State Insurance Corporation : (1971)IILLJ647SC . These decisions have been noticed in the decision of Kailasam and N. S. Ramaswami, JJ-, in Dhala Tanning Company v. E.S.I. Corporation : (1974)1MLJ71 . The above decision also holds that Article 137 of the Limitation Act, 1963 will not be applicable to an application under Section 75 (2) of the Act, because the Insurance Court which is a statutory body is not a regular Court. In view of these decisions, Sri K. Ramaswami, learned Counsel appearing for the appellants, has to concede that there is no specific article of limitation applicable at all and therefore, he does not press the point of limitation.

4. The other substantial defence put forth by Malai Murasu was that the staff employed in the publishing or managerial department would not fall within the definition of 'employee' under Section 2 (9) of the Act, as it stood before it was amended by Act XLIV of 1966 with effect from 28th January, 1968. The original definition so far as it is relevant ran thus:

'employee' means any person employed for wages in or in connection with the work of a factory or establishment to which the Act applies....

The amendment carried out by Act XLIV of 1966 was as follows:

and includes any person employed for wages on any work connected with the administration of the factory or establishment or any part, department or branch thereof or with the purchase of raw materials for, or the distribution or sale of the products of, the factory or establishment; but does; not include....

5. The amendment does not purport to be retrospective and will only be effective from the date on which it took effect, i.e., 28th January, 1968. There-; fore, we have to decide the question on the definition as it stood before 28th January, 1968. Now, the business of Malai Murasu was to publish the Daily Malai Murasu and obviously the staff engaged in publishing it and the managerial staff connected with the publication would fall within the definition of 'employee'. Their work was connected with the work of the factory. In paragraph 16, the Insurance Court has dealt with the question and pointed, out that they are connected with the work of the factory. Sri Ramaswami is not in a position to attack that finding. But, he puts forth an ingenious argument based on the very amendment effected by Act XLIV of 1966. In this connection he refers to a decision of Ramaprasada Rao., J., in Mettur Beard sell Limited v. E.S.I. Corporation : (1973)2MLJ195 , wherein the learned Judge held that the Act was not declaratory of the law and on the other hand expanded the original' definition of 'employee'. The contention before the learned Judge on behalf of the State Employees' Insurance Corporation was that the amending Act was only declaratory and that the position even before the amendment was the-same as indicated in the Amending Act. It was that contention which the learned Judge repelled and in that connection the learned Judge quoted, from the statement of objects and reasons when the bill was introduced in the Legislature. He observed:

There is a distinction between clarification and amendment. If Parliament really intended that they should declare the pre-existing law by making clear, a situation which was ambiguous, then they should have said so while setting out the objects arid reasons for the amendment. On the other hand, when the Bill came up in the Legislature for expanding this definition, it was stated in the statement of objects and reasons:

Experience of the administration of the Act has disclosed certain difficulties in its working. The object of the present Bill is to remove such difficulties and to make the administration of the Act simpler. The major amendments proposed in the Bill are indicated below:

(b) the existing definition of the term 'employee' does not cover administrative staff engaged in sale, distribution and other allied functions. The definition is being amended to cover such employees..I am unable, therefore, to agree with the learned Counsel for the respondent that by reason of the amendment what was not clear was made fully clear, but according to me, there was no ambiguity in the quondam definition of 'employee' and by reason of adding the additional paragraph in 1966, there has been an expansion of the definition and not a clarification of it as suggested and as assumed....

6. The argument of Sri K. Ramaswami, is that in the view of the Legislature, as disclosed in the statement of objects and reasons, the administrative staff engaged in sale, distribution and other functions, was not meant to come within the original definition of employee. This however, is not a correct reading of the statement of objects and reasons.

7. The question for decision of the Court is whether on the materials available, the publishing and the managerial staff would fall within the definition of 'employee' as it stood before 28th January, 1968. I have pointed out that they would come within the provision of the Act, as it stood before 28th January, 1968. That position cannot, in any way be altered by the amending Act. The amending Act widens the definition of 'employee' so as to bring in within is scope even people who were not formerly within the definition of 'employee'. It was not the other way round. To put it from another angle, supposing this question had arisen for decision of the Court before the amending Act itself came into force, the answer would have been that the staff in question came within the definition of 'employee' and that result has not, in any way, been intended to be altered by the amending Act. In the case before Ramaprasada Rao., J. the persons did not come within the definition of 'employee' as it stood before 28th January, 1968 and the learned Judge merely repelled the contention of the Insurance Corporation that the amending Act was meant to apply retrospectively so as to make such staff fall within the definition of 'employee' as amended.

8. Accordingly these appeals fail and are dismissed, with costs one set. Counsel's fee Rs. 100.


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