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The India Jute Company Ltd. Vs. the Regional Director, West Bengal, Region, Employees' State Insurance Corporation and Anr. (09.11.1976 - CALHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberMatter No. 157 of 1973
Judge
Reported inAIR1977Cal258,81CWN459,[1977(34)FLR278]
ActsEmployees' State Insurance Act, 1948 - Sections 2(9) and 38
AppellantThe India Jute Company Ltd.
RespondentThe Regional Director, West Bengal, Region, Employees' State Insurance Corporation and Anr.
Appellant AdvocateP.P. Ginwala, ;P.K. Mullick and ;T.K. Mitra, Advs.
Respondent AdvocateArun K. Dutt and ;D.K. Basu, Advs.
DispositionApplication dismissed
Cases Referred(Lakshman Das v. Employees State In
Excerpt:
- sankar prasad mitra, c.j.1. this matter has been referred to a larger bench by a. n. sen, j. on the 13th august, 1975, under chapter v rule 2, of the original side rules. the petitioner has its registered office at no. 16, strand road in calcutta within the ordinary original civil jurisdiction of this court. the petitioner has a jute factory and a cotton factory at serampore in the district of hooghly, the business of the petitioner is manufacture and sale of jute and cotton textile goods. the petitioner's calcutta office is stated to be a commercial establishment where the petitioner employs clerical and other staff.2. the petitioner has made this application under article 226 of the constitution for a writ in the nature of mandamus commanding the respondents to forbear from giving any.....
Judgment:

Sankar Prasad Mitra, C.J.

1. This matter has been referred to a larger Bench by A. N. Sen, J. on the 13th August, 1975, under Chapter V Rule 2, of the Original Side Rules. The petitioner has its registered office at No. 16, Strand Road in Calcutta within the Ordinary Original Civil Jurisdiction of this Court. The petitioner has a jute factory and a cotton factory at Serampore in the district of Hooghly, The business of the petitioner is manufacture and sale of jute and cotton textile goods. The petitioner's Calcutta office is stated to be a commercial establishment where the petitioner employs clerical and other staff.

2. The petitioner has made this application under Article 226 of the Constitution for a Writ in the nature of mandamus commanding the respondents to forbear from giving any effect to certain directions or orders contained in letters mentioned in the petition Or otherwise applying Or seeking to apply the provisions of The Employees' State Insurance Act, 1948 to the petitioner in respect of persons employed at its registered office or head office at No. 18, Strand Road in Calcutta. The petitioner has also prayed for other reliefs including an interim order of injunction.

3. Before we proceed any further it would be convenient to set out the relevant portions of some of the sections of The Employees' State Insurance Act, 1948, hereinafter called 'the Act'.

4. Sub-sections (2), (3), (4) and (5) of Section 1 of the Act read as follows :--

'(2) It extends to the whole of India.

(3) It shall come into force on such date or dates as the Central Government may, by Notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Act and far different States or different parts thereof.

(4) It shall apply, in the first instance, to all factories (including factories belonging to the Government) other than seasonal factories.

(5) The appropriate Government may, in consultation with the Corporation and where the appropriate Government is a State Government, with the approval of the Central Government, after giving six months' notice of its intention of so doing by notification in the Official Gazette extend the provisions of this Act or any of them, to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise.'

5. The points to be especially noted are (i) by the Central Government's notification in the Official Gazette, date or dates may be appointed for the coming into force, of different provisions of the Act; (ii) the Act shall first apply to all factories including Government factories but not to seasonal factories; and (iii) the State or the Central Government, as the case may be, may by notification in the Official Gazette extend the provisions of the Act or any of them to any other establishment or class of establishments industrial, commercial, agricultural or otherwise except that the State Government's notification has to be made with the Central Government's approval.

6. Section 2(9) of the Act is vital for our purposes. It says :--

' 'Employee' means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and--

(i) who is directly employed by the principal employer on any work or incidental or preliminary to or connected with the work of the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere; 01

[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--]

(a) .....

(b) Any person so employed whose wages (excluding remuneration for over time work) exceed five hundred rupees a month : Provided that an employee whose wages (excluding remuneration for over time work) exceed five hundred rupees a month at any time after (and not before) the beginning of the contribution period shall continue to be an employee until the end of that period;'

7. The portions of the above sub-section which are in square brackets were introduced by Act 44 of 1966 which came into force with effect from 28 January, 1968.

8. iN the statements of objects and reasons for this amendment in 1966 it is stated : '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.'

9. The petitioner, in the instant case, has administrative staff whose wages (excluding remuneration for over time work) do not exceed Rs. 500.00 a month engaged in sale and distribution of products of the petitioner's factories and other allied functions. They are not employed in any of the factory premises. They are in the petitioner's head office or registered office at No. 16, Strand Road in Calcutta which the petitioner claims to be a commercial establishment. The Employees' State Insurance authorities wanted (o apply the provisions of the Act to the petitioner in respect of the said employees at its registered office or head office. The petitioner's contention is that there has been no notification under Section 1(5) extending the provisions of the Act to the petitioner's commercial establishment at No, 16, Strand Road. And in the absence of such notification the said employees cannot be brought within the purview of the Act.

10. We now come to Section 38 of the Act which is as follows :--

'Subject to the provisions of this Act, all employees in factories or establishments to which this Act applies shall be insured in the manner provided by this Act.'

11. Strong reliance was placed Qn behalf of the petitioner on this section. It was urged that since the Act has not been made to apply to the establishment at 16, Strand Road, no employee in that establishment can be covered by the provisions of the Act.

12. Apart from the above section we may make a passing reference to Sections 73A, 87, 88, 89 and 90 of the Act. These sections respectively provide for (a) the employer's special contribution in lieu Qf contributions payable under Chapter IV, (b) exemption of person or class of persons by the appropriate Government, (c) the Employees State Insurance Corporation's right to make a representation to the appropriate Government against proposals for exemption and (d) exemption of factories or establishments belonging to Government or any local authority.

13. Mr. Ginwalla appearing for the India Jute Co. Ltd., has drawn our attention to the above provisions of the Act and has proceeded to argue that in order that an employee may come within the Act he must be employed in a factory in the sense that he is under the control of authorities attached to the factory. He must be answerable to the factory authorities for works done by him; he must apply to the factory authorities for leave; he must be subject to the standing orders of the factory; his wages must be disbursed by and under the instructions of the factory authorities; his wages must be debited to the factory account; and if any disciplinary action be taken against him, it must be taken by the factory authorities. According to Learned Counsel if these conditions are fulfilled, it does not matter where the employee concerned is working. He has urged that by amending the definition of 'employee' in Section 2(9) in 1966, the operation of the Act has not been extended to those who are not attached to the factory premises at all. Prior to the amendment the employees actually working in the factory that is, the manufacturing process of the factory as well as employees connected with the manufacturing process were 'employees' within the meaning of the Act. After the amendment employees in the administration engaged in sale, distribution or other allied functions would be 'employees' within the Act provided that their work is based on the factory itself and they are controlled by persons in charge of the factory.

14. Mr. Ginwalla has argued that there is a difference between the application of an Act and the interpretation of words used in the Act, These are two different matters which are dealt with in different sections of every Act. The first section of an Act tells us to what things and to what areas it would apply. The second section tells us what meaning is to be given to the words used in the Act in the situations to which the Act is applicable. The functions of these two kinds of the sections are not the same. By altering the definition, says Learned Counsel, the sphere of application of an Act cannot be altered or extended. In the instant case when the Act prescribes that it would apply to factories, it cannot be extended in view of provisions of Section 38 to establishments for which no notification has been issued under Section 1(5).

15. Reliance has been placed by Counsel on a number of decisions. In Employees' State Insurance Corporation v. Ganpatjya : (1961)ILLJ593Mad , a Division Bench of the Madras High Court was considering Sections 2(9)(i) , 38 and 39 of the Act before its amendment. The Madras High Court has said that persons employed in the Managing Agent's office of a mill which is concerned purely with the administrative side of the mill and the sale of finished products, and who are not in any way connected with the manufacturing process or with the work qf the factory, are not 'employees' within the meaning of Section 2(9)(i). Hence they are not liable to pay contributions under the Act. The Madras High Court in this case has followed a Division Bench of the Bombay High Court in Employees State Insurance Corporation Bombay v. Ramao, (1957) 1 Lab LJ 267. The question raised in that case was whether a person employed in the administrative office of J. K. Chemicals Ltd. was an 'employee' within the meaning of the Act. The Bombay High Court observed : 'Nevertheless, before the respondent can be said to be an employee within the meaning of Section 2(9)(i), it must be shown that he has been employed On any work, of or incidental or preliminary to, or connected with the work of the factory. It is necessary to emphasise that on the fates admitted in this case it is not shown that the work of the factory was to sell the products of the factory. The work of the factory in the present case began with the collection of raw materials and ended with the production of finished articles. If that be so, it would be difficult to accede to the argument that the work of selling the products of the factory was connected with the work of the factory. The work of selling cannot be said to be incidental or preliminary to the work of the factory. It is obviously not preliminary, and it cannot be incidental in that case. It is true that the expression 'connection with' may be larger in its denota-tion than 'incidental' or 'preliminary. But this expression also must be construed in the light of the facts as to which there is to dispute in the present case.'

16. From these two judgments, Mr. Gin-walla submits, it is clear that persons connected with sale and distribution of products of the factory were not employees within the meaning of the Act before the amendment. The amendment has brought them within the definition; but their work must be under the control and supervision of those who run the factory.

17. In support of his above contention Mr. Ginwalla referred to the Supreme Court's decision in the Nagpur Electric Light and Power Co. Ltd. v. Regional Director Employees' State Insurance Corporation : (1967)IILLJ40SC , The Supreme Court has said that if some of the employees work outside the factory, but their duties are connected with the work of the factory they are employees within the meaning of Section 2(9)(i). Tn the case before the Supreme Court some employees were employed in sub-stations. The sub-stations were not independent factories. The Sub-stations attended to work dircetly connected with the work of the factory. They were, therefore, employees under Section 2(9)(i).

18. Learned Counsel has urged that before the amendment of 1966 the law clearly was that a person directly employed on any work of or incidental or preliminary to or connected with the work of the factory was an employee within the Act But a person employed on any work connected with the administration of the factory or any part, department or branch thereof or the distribution or sale of the products of the factory was not an employee.

19. To appreciate the scope of the 1966 amendment, argues Counsel for the applicant, one has to remember what Lord Coke said in Heydon's case (1584) 3 Co. Rep. 7b, According to Lord Coke one has to examine (a) what was the law before the Act was passed; (b) what was the mischief or defect for which the law had not provided; (c) what remedy Parliament had appointed; and (d) the reason of the remedy.

20. If we apply these principles to the instant case, we find that before the amendment Courts took the view that persons con-nected with the administration of a factory were not 'employees'. The work of a factory commenced with the collection of raw materials and ended in the manufacture of goods. Persons employed in the sale or distribution of the factory's products were not employees under the Act even though they were employees of the factory itself. The amendment, according to Mr. Ginwalla, was necessary for remedying this situation. The amendment is intended to meet the difficulties of covering the administrative staff of the factory which were pointed out by the Bombay and Madras High Courts.

21. Mr. Ginwalla also submitted that if an extended meaning be given to the word 'employee, it would result in discrimination between one class of employees and another. In the Head Office of a Company situated away from the factory there may be administrative staff engaged in sale or distribution of factory products as well as administrative staff engaged in maintenance of share register, keeping d accounts and similar other types of work. The first category of employees would be covered by the Act and the second category would remain outside the Act.

22. Since rights under Art, 14 are now suspended it is not open to Mr. Ginwalla to take this point until the emergency is lifted. In any event, this is in our opinion a case of reasonable classification having a nexus to the object and purpose of the Act viz. to provide benefits in case of sickness, maternity and employment injury to a class of employees covered by the Act for whom, according to Parliament, special provisions should be made.

23. This application has been heard along with several other applications of other employers who had also challenged orders or directions of the State Insurance Corporation with a view to bringing administrative staff engaged by them who are connected with sale or distribution of factory products within the scope of the Act. We have heard arguments of Learned Counsel appearing on behalf of the othew employers as well. And it would be convenient to note briefly the points raised by them in this connection. Mr. Ajit Roy Mukherjee appeared for the petitioner in Matter No. 320 of 1974 (Hindusthan Lever Ltd, v. Employees' State Insurance Corporation). Mr. Mukherjees grievance is that the State Insurance Corporation authorities are trying to extend the operation of the Act to establishments other than factories where no manufacturing process is going on. They are doing it to circumvent the provisions of Section 1(5) of the Act. Mr. Mukherjee has referred to Chapter V of the Act on the benefits that the employees would derive if they come within the Act, e. g. sickness, maternity, disablement, medical and funeral benefits. Under Section 59-A there are provisions for medical benefit by the Corporation in lieu of the State Government. The State Government has to share the cost of. such benefit in such proportion as may be agreed upon between the State Government and the Corporation. The State Government, therefore, is vitally interested in the extension of the scheme which affects its own budget; but the role of the State Government would be completely ignored if the Corporation is allowed to extend the operation of the Act in the manner it had been seeking to do. Mr. Mukherjee has also adopted the arguments of Mr. Ginwalla.

24. The answer to the point raised by Mr. Mukherjee is that the State Government is a party to some of the applications before us and in spite of notice being served it has not either chosen to appear or make its submissions to this Court e. g. in Matter No. 452 of 1965 (Tarun Kumar Chatterjee v. State of West Bengal) the State Government is the respondent No. 1; in Matter No. 343 of 1970 (Gestetner Duplicators Private Ltd. v. Employees' State Insurance Corporation) the State Governmant is the respondent No. 3; and in Matter No. 672 of 1978 (Subrata Mukherjee v. State of West Bengal) the State Government is the respondent No. 1. In aone of these matters the State of West Bengal has opposed the extension of the Act to administrative staff employed outside the factory premises in the Head Office or any other Branch of Commercial Establishments but engaged in sale or distribution of factory products. In fact, if upon construction of the relevant provisions of the Statute such extension is justified, we do not see how the State Government can oppose it.

25. In Matter No. 343 of 1970 (Cal) (Gestetner Duplicators Private Ltd. v. Employees State Insurance Corporation) Mr. J. N. Chose has appeared for the petitioners. His contention is that the Act contemplates two kinds of workers, namely, (1) workers in a factory, and (2) workers in establishments. The workers in a factory may come within the Ant; but tbe workers in an establishment cannot get the benefit of the Act unless a notification is made under Section 1(5). The definition of 'factory' is any premises or part of a premises where a manufacturing process is carried on with the aid of power or is ordinarily so carried. It is significant that in 1966 the definition of 'employee' in Section 2(9) was amended in the manner hereinbefore mentioned; but the definition of 'factory' in Section 2(12) was left untouched. This shows that Parliament did not intend to alter the connotation of the word 'factory'. And by the amendment of 1966 Parliament brought within the purview of the Act only those persons who were connected with the administration of factory (where the manufacturing process was going on) or any part, department or branch thereof or with the purchase of raw materials for or distribution or sale of the products of the factory. In other words, these persons must be engaged in administrative work under the control of the factory augh-orities.

26. In Matter No. 452 of 1965 (Cal) (Tarun Kumar Chatterjee v. State of West Bengal) Mr. P. Sanyal appeared for the petitioners. He has submitted to us that Section 38 of the Act refers to two types of employees, namely, employees in factories and employees in establishments. If we try to bring employees in establishments within the scope of the amended definition of Section 2(9), tbe provisions of Section 1(5) would have to be wholly ignored. The Court has to construe a statute as a whole and avoid inconsistencies. According to Mr. Sauyal the interpretation of Section 2(9) which the State Insurance Corporation is pressing for would be raconsistept with the provisions of Section 1(5).

27. There have been quite a few decisions of different High Courts including our own both before the amendment of 1966 and after the amendment. It is not necessary for us to be exhaustive; but we may usefully refer to some of these decisions.

28. Let us first glance at a few decisions before the amendment of 1966 came into force on the 28th January 1968, apart from the ones we have already noted. In F. M. A. No. 143 to 170 of 1959 (Gal) (Ramapati Chowdhury v. E. S. I. Corporation) a Division Bench of our Court took the view that employees of Structural Engineers at the Head Office in Calcutta, the factory being in How-rah, engaged in departments dealing with accounts, costing, estimating, drawing, record or general departments were engaged in works preliminary or incidental to or connected with the work of the factory and were within the definition qf 'employees' as given in Section 2(9).

29. A Division Bench of the Punjab High Court in Charan Singh and Sons v. E. S. I. Corporation , dissented from the Madras High Court's judgment in E. S. I. Corporation v. Ganpatiya, : (1961)ILLJ593Mad , which we have noted above. The Punjab High Court held that a person working as Accountant would also be included in the number of persons necessary to make the premises a factory. The definition of 'factory', according to the Punjab High Court, clearly envisages the inclusion of persons other than those engaged on the actual manufacturing process and the work of accounting and work connected with the sale and distribution of the products of the factory are matters incidental or preliminary to or connected with the work of the factory. This was the case of an Electric Supply Company. The Punjab High Court in its judgment has also dealt with the line staff of the Company. Its view is that though the work of the line staff, that is, persons who apparently are kept somewhere in waiting and who go out from time to time when calls are received from consumers for the purposes of' putting things right is almost entirely done outside the premises which constitute the factory but they still fall within the definition of 'employee' in Section 2(9)(i).

30. Such persons being directly employed by the principal employer and their work being incidental to or connected with the work of the factory, are employees whether they work inside or outside the factory premises, in the light of the closing words 'whether such work is done by the employee in the factory or establishment or elsewhere' in Clause (i) of Section 2(9).

31. In Birla Cotton Spinning and Weaving Mills Ltd. v. E. S. I. Corporation, : AIR1970Delhi167 , the workers employed by a textile manufacturing company to work outside the factory but in close connection with the work carried on in the factory were held to be 'employees' within the meaning of Section 2(9). This was also the decision of a Division Bench. The Delhi High Court's view was that the work of employees in administrative offices of the company together with the manufacturing process constituted the work of production in which the Company was engaged. The Delhi High Court said that when the manufacturing process carried on in the factory would not in itself result in the production of goods without the help of employees in the administrative office, the work done in the office of the factory must be said to be connected with the work of the factory.

32. It is clear, therefore, that before the amendment there were conflicting decisions by different High Courts. The Bombay and Madras High Courts sought to give a restricted meaning to the word 'employee'; but the Calcutta, the Punjab and the Delhi High Courts were seeking to give it an extended meaning. It was doubtful whether administrative staff connected with purchase of raw materials or sale and distribution of factory products whether engaged in the factory premises or elsewhere could be covered by the definition of 'employee'. It is in this context that we have to examine the scope of the 1966 amendment

33. After the amendment there has been fairly a large number of decisions and we may refer to a few of them. Let us first take the decisions of High Courts other than ours. Our attention has been drawn to the judgments of the Delhi High Cqurt in (a) Grand Iron Works v. E. S. I. Corporation, (1970) 38 FJR 368 and (b) Hindusthan Lever Ltd. v. E. S. I. Corporation, (1973) 1 Lab LJ 259 : (1973 Lab IC 706); the Madras High Court in (a) Hemalata Textile Mills v. E. S. I. Corporation, (1975) 31 Fac LR 237 (Mad) and (b) E. S. I. Corporation v. Prabhulal Brothers, (1973) 1 Lab LJ 304 : (1974 Lab IC 701) (Mad); the Kerala High Court in Regional Director, E. S. I. v. Ruby Rubber Works, ILR (1974) 2 Ker 536; and the Andhra Pradesh High Court in Hyderabad Asbestos Cement Products Ltd. v. E. S. I. Corporation (FB), (1976) 32 Fac LR 255 : (1976 Lab IC 868).

34. In all these judgments more or less the same approaches have been made to the scope and effect of the 1966 amendment. We intend to refer particularly to the Judgments of Division Bench of the Kerala High Court and the Full Bench Judgment of the Andhra Pradesh High Court. The Kerala High Court has made the following observations :

1. 'In the light of the definition of Section 2(9) we find no difficulty in holding that employees in the sales depots of the respondents are employees within the meaning of the Act'. (page 544).

2. 'It is evident that the object of the Amendment Act 44 of 1966 was to bring within the scope of coverage a class of employees who would not otherwise be covered by that Act. That being the case, unless the definition is given its full meaning in the operative provisions such as Sections 38, 39 and 40, the amendment would make no sense. The purpose of the amendment may otherwise be defeated and the inclusive part of the definition may be rendered otiose.' (P. 546).

3. 'The term 'in' in Section 38 was evidently not intended to indicate the nexus between the 'employee' and the 'factory' by mere location. It was not the physical presence in the factory premises or working in the factory premises that was postulated, but a rational connection between the factory and the employment. The scope of such rational connection must necessarily depend upon the definition of the term 'employee' and when that is enlarged to cover not only those en-gaged in or in connection with the work of the factory, but also those who are engaged in the work of the distribution or sale of the products of the factory necessarily the nexus indicated by the amended definition is to be reflected in the term 'in' under Section 38 of the Act. In other words, those working in sales depots are also to he found to be employees in factories in the light of the definition of the term 'employee' in Section 2(9).' (page 547).

4. 'Therefore, if by the definition, certain classes of employees such as those in sales depots of factories are defined as employees of factories, it is Section 1(4) that is to be applied to them and not Section 1(5). Hence there is no necessity of a notification under Section 1(5) to extend the coverage of the Act to such classes of employees. We do not think that there is any difficulty in construing the provisions of the Act in this manner.' (page 548).

35. The Division Bench of the Kerala High Court, therefore, is clearly of the view that persons working in the sales depots of a factory who are engaged in distribution or sale of the products of the factory are within the amended definition of Section 2(9). In reaching this conclusion the Kerala High Court has considered also the provisions of Section 38, Section 1(4) and Section 1(5) of the Act.

36. The Andhra Pradesh High Court's Full Bench has made the following observations :--

1. 'The question on which we have to express an opinion is whether the employees of the petitioner-Company in its Zonal Sales office at Vijayawada are covered by the E. S. I. Act of 1948. In other words, the question is whether the employees of. the Zonal Sales Office at Vijayawada are liable to be insured as per the provisions of Chapter IV of the E. S. I. Act' (Page 257 of 32 Fac LR) : (at p. 870 of 1976 Lab IC).

2. 'The main argument of Shri K. Srinivasa Murthy for the petitioner is based upon Section 38 of the Act and the definitions of 'employees' and 'factory' defined in the Act. (page 258) (of 32 Fac LR) ; (at p. 871 of 1976 Lab IC).

3. 'After the amendment, any person employed for wages on any work connected with the distribution or sale of the products of the factory Qr establishment also becomes an 'employee'.

This takes us to the question whether the employees of the Sales Office at Vijayawada can be said to be employed in a factory or an establishment. As admittedly there is no notification under Section 1(5) of the Act covering the Sales Office as an establishment coming under the purview of the Act, the only question is whether they are employees in a 'factory'. (Page 260) (of 32 Fac LR) : (at p. 872 of 1976 Lab IC).

4. 'Section 38 states that 'subject to the provisions of this Act, all employees in factories or establishments to which this Act applies shall be insured in the manner provided by this Act.' No doubt the words used viz. 'employees in factories' render some apparent substance to the argument of the Learned Counsel for the petitioner. But it cannot be ignored that Section 38 is made subject to the provisions of the Act. Section 2 containing the definition is also a provision of the Act. The words 'employees' and 'factory' occurring in Section 38 of the Act must be understood in the light of their definitions in Section 2(9) and Section 2(12) of the Act. Considerable stress was laid by the learned Counsel fin the ground that the words used in Section 38 are not 'all employees of factories', but 'all employees in factories' and having regard to the definition of a 'factory', the Sales Personnel at Vijayawada Office who are working elsewhere other than in the premises of the factory, are excluded. Granting that the argument is plausible having regard to the language employed in Section 38, still the Court cannot ignore the amended definition of an 'employee' and the purpose behind it. We must construe Section 38 of the Act in a manner to give effect to the legislative intendment in amending Section 2(9) of the Act. A Court must avoid any interpretation which would defeat the purpose of the amendment. The various provisions have to be construed harmoniously with a view to give effect to the legislative intendment evidenced by the amended definition of Section 2(9) of the Act.' (Pages 262 to 263) (of 32 Fac LR) : (at pp. 874, 75 of 1976 Lab IC).

5. '..... We find no difficulty in holding that Section 38 of the Act should be understood to take in all persons employed in the Sales Office of the petitioner-company at Vijayawada. For, it cannot be disputed that they are persons employed for wages on a work connected with the distribution or sale of the products of the factory. They are employees in factories to which the Act applies and shall be insured in the manner provided by the Act. No doubt the word 'factory' defined in the Act states that 'factory' means any premises including the precincts etc. To construe the expression 'factory' in Section 38 of the Act as only meaning the premises or the precincts thereof would not give effect to the legislative intendment in amending the word 'employee' as defined in the Act. (Page 263) (of 32 Fac LR) : (at p. 875 of 1976 Lab IC).

6. 'We, therefore, opine that the employees of the Sales Establishment at Vijayawada are employees in a factory within the meaning of Section 38 and therefore entitled to the benefits of Chapter IV of the Act. This conclusion we have come to on a consideration of the facts and the relevant provisions of the E. S. I. Act, unhampered by a consideration of any of the authorities cited before us.' (Page 264) (of 32 Fac LR) : (at p. 875 of 1976 Lab IC).

37. The Full Bench of the Andhra Pra-desh High Court, therefore, repelled more or less the same arguments which were advanced before us on behalf of the applicant and gave effect to the legislative intendment of the Amendment of 1966. The Andhra Pra-desh High Court has held that the employees in the Sales Office situated away from the factory can also be 'employees' within the meaning of the Act.

38. Let us now refer to the decisions of our own Court after the amendment of 1966. Our attention has been drawn to the judgments of T. K. Basu, J. in Matter No. 738 of 1968 (Ramaprasad Chatterjee v. E. S. I. Corporation); S. C. Deb, J. in Matter No. 176 of 1970 (Castrol Ltd. v. E. S- I. Corporation); Sabyasachi Mukharji, J. in Matter No. 33 of 1969 (Saktiranjan Roy v. E. S. I. Corporation) (1974) 29 FLR 275 at 277; and the Division Bench consisting of my learned brother S. K. Datta, J. and myself in Appeal No. 119 o( 1974 (Lakshman Das v. Employees State In-surance).

39. In all these decisions the amended definition has been given an extended meaning. In the case before the Division Bench I have, with the concurrence of S. K. Datta, J., said :

'There seems to be no room for doubt that a person employed for wages would be an employee within the meaning of the said Act if he does any work connected with,

(a) the administration of a factory or establishment or any part, department or Branch thereof; or

(b) with the purchase of raw materials for a factory or establishment or any part, department or branch thereof; or

(c) the distribution or sale of products of a factory or establishment or any part, department or branch thereof.'

40. From a review of the aforesaid deci-sions it is clear that the amended definition is an exhaustive one. It is a beneficial piece of legislation and it has to be given a meaning that would give benefit to those for whom it is intended. After the amendment the adminstrative staff engaged in purchase of law materials or the distribution or sale of the products of a factory whether the work is done in the factory or elsewhere would be 'employees' within the Act. Section 38 of the Act does not appear to us to be an impediment. This section opens with the wrods 'subject to the provisions of this Act.' These words bring within their scope the amended definition of 'employee'. There is, therefore, no difficulty in covering employees who are not actually working in the factory premises provided that they do any type of work specified in Section 2(9) as it now stands.

41. In this view of the matter the petitioner's employees in the registered office or head office at No. 16, Strand Road in Calcutta who are engaged in types of work referred to in Section 2(9) of the Act are employees within the Act.

42. In the result, this application is dismissed. The rule is discharged. Interim orders, if any, are vacated.

43. There would be no order as to costs.

Sabyasachi Mukharji, J.

44. I agree.

Salil Kumar Datta, J.

45. I agree.


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