Hyderabad Asbestos Cement Products Ltd. v. The Employees Insurance Court & Anr.

KAILASAM, J. These appeals l'l!ise the same question of Jaw and may be dealt with together and can be disposed of by a common judgment.

Civil Appeal No. 652 of 1976 is filed by the Hyderabaci Asbestos u Cement Products Ltd. by certificate granted by the High Court of

Andhra Pradesh by an order dated 2nd April, 1976. The appellant company is a factory situated at Sanatnagar where asbestos sheets are 1. manufactured. The company has Zonal Sales Offices in various States and in th~ State of Andhra Pradesh they have such Zonal Offices at Vijayawada and Visakhapatnam. We are concerned with the Vijay-wada Zonal Office. There are employees in tlie Zonal Office who do the work of canvassing for the sale of products manufactured in the factory located at Sanatnagar. It is contended that the Zonal Offices .are establishments and are not factories, and as such do not fall within the scope of the Employees' State Insurance Act, 1948. The High Court negatived the contention of the appellant.

Civil Appeal No. 900 of 1977 is by a certificate granted by the Andhra Pradesh High Court' to the appellant, M/s. Foods, Fats & Fertilisers Ltd., Tadepalligudem, West Godavari District. The appel-fant is having a factory at Tadepalligudem in West Godavari distrist where rice bran oil, alvitone and cattle food etc. are being manufactured. The appellant is :llso having an administrative and export office at No. 115-B.N. S. C. Bose Road, from where rice bran, textile yarn etc. are ·exported to foreign countries. The administrative work is also carried ·on in. the Madras office in relation to the business of the company. It was contended that the employees of the company at the Madras office .are not employees under_ the Employees' State. Insurance Act, 1948. The High Court of Andhra Pradesh following its decision in W.P. No. 2907 of 1974 against which Civil Appeal No. 652 of 19?6 is preferred, ·dismissed the petition and granted a certificate.

Civil Appeal No. 1314 of 1977 is an appeal by M/s. Union Carbide .(India) Ltd. agaiiist the decision of a Bench of the Calcutta High Court in Matter No. 631 of 1973 by special leave granted by this Court. The appellant is a public limited company carrying on business in the manufacture and sales o.f diverse consumer products such as finished ·batteries, flashlights, Arc carbons, Chemicals and Plastics and also in pesticide and proce6sing and export of shrimp. For carrying on the business of the company the company operates· factories all over India. Right of the manufacturing units have been placed under the Calcutta General Office which is situate at I-Middleton Street, Calcutta. Accord-ing to the appellant, the Calcutta General Office of the company is concerned with managing the affairs of the company in general and with laying down the broad policie.t in respect of the business of the ei1zht factories and falls within the meaning of West Bengal. Shops & Estab-lishments Act. The High Court rejected the plea of the appellant hvld-ing that the employees in question fall under the Employees' State Insurance Act.

Apart from the three appellants, several companies, Valtas Ltd.. Hindustan Lever Ltd., Rallis India Ltd., Merck Sharp and Dahme of India Ltd., and Indian Chemical Industries were all permitted to appear as interveners.

The main contentions that were put forward in these appeals are that the Act maintains a distinction between a factory and an establish-ment and that the Zonal Offices and Branch Offices with which we are concerned in these appeals are in the nature of establishments and cannot be brought within the purview of factories. It was next contended that in order to bring an employee within the scope of the Employees' State Insurance Act, he should not only be an employee within the meaning of section 2(9) of the Act but also that he should be an employee of a factory as defined in section 2(12) of the Act. It was submitted that the scheme of the Act and particularly the charging section, section 38. would indicate that the Act was intended to cover only employees in factories and not employees who are connected with the work of the factocy.

For appreciating the contentions of the appellants it is necessary to set out the relevant provisions of the Employees' State Insurance Act. . The object of the enactment is to provide for certain benefits to emplo-yees in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. Section l, sub-section (4) provides that the Act shall apply, in the first instance, to• all factories (including factories belonging to the Government) other than seasonal factories. Section 1 (5) provides tliat the appropriate Government may in consultation with the Corporation and where the appropriate Government is a State Government, with the approval of tlie 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, including) commercial, agricultural or otherwise. While sub-section ( 4) to section 1 provides that the Act shall at the first instance apply to all factories other than seasonal factories, sub-section ( 5) empowers the Government after giving six months' notice by notification in the Official Gazette to extend the provisions of the Act to any establishment or class of establishments. Before the Act is made applicable to an establishment the procedure envisaged under sub-section (5) will have to be followed. It is admitted that the Govern-ment have not issued any notification as provided in sub-section ( 5)' and therefore the Act is not made applicable to any establishment. TI1e plea on behalf of the appellants is that in the circ:umsfances the word "employee" should only be confined to employees who are employed in factories and not to employees who are employed in establishments. The submission is that .employees in Zonal Offices for sale of manufactured' goods and employees in administrative offices are not employees. of the factory. ·

Section 2(9) defines "employee" as follows :

"employee" means any person employed for wages, in or in connection or 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 of or ncidental 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 eJSewhere; or ·· (ii) x x (iii) whose services are temporarily lent or let on hire to the

principal employer by the person with whom the person

whose services are so lent or Jet on hire has entered into a contract of service;

and includes any person employed for wages on any work connected with the administration of the factory or establish-ment 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-

x x x x x The definition as it originally stood under clause (i) applied tci a person employed for wages by a person directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of the factory of establishment, whether such work is done by the employee in the factory or establishment or elsewhere. By an amendment by Act 44 of i 966 the words ".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 the purchase' olf raw m~terials for, or the distribution or sale, of the products of, the factory or establishment; but does not include" for the words "but does not include" were added to (iii). The scope of the word "employee" as defined before the amendment came to be con-sidered by the Sl!preme Court in Nagpur Electric Light & Power Co., Ltd. vs. Regioiwl Director Employees State Insurance Corporation, Etc.(') The company in that case, carried on the work of transforming and transmitting electrical energy. There was dispute between the company and the respondent, Employees' State Insurance Corporation, as to whether certain employ~s of the company like engineers, draughts-men, clerks, accountants, e!c. were employees within the meaning of section 2(9) of the Employees' State Insurance Act The c6urt held that all the employees of the disputed categories clerks or otherwise were employed in connection with the work of the factory. that is to say, with the work of transforming and transmitting electrical power, and a person doing non-manual work can be an employee if he is employed in connection with the work of the factory and the duties-of the administrative staff are also directlv few connected within the work of the factory. The court also held that employees who worked outside the factory but whose duties were connected with the work of the factory were employees wthin the meaning of section 2(9) (i). Discussin~ the scope of the definition of the word "employee" the Court held that the assistant engineers, supervisors, electricians, and overseers are engaged in the erection and maintenance of the electricity supply lines connected with transmission of power. The cable jointer, mistries, linemen, coolies and wiremen are employed for inspection of the supply lines, digging pits, erecting poles, for laying distributioi: mains and service lines ...... The attendants in-charge of the sub-stattons look after the transformation and transmission of power. The motor drivers and cleaners are employed for carrying materials and tower ladders in trucks for maintenance of the supply lines .......... The telephone operators attend to the telephone calls for all the. depa~tments. The_ menial staff is required to do miscellaneous work mcludmg he cleamn~ of the -(ii"ft967]3 SCR P 97, office compound. The motor car staff is employed to look aft~r die cam employed in. the administration section. All tl>ese employees, clencal or otherwise, are employed in connection with the work of the factory, that is to say, in connection with the work of transforming and trans)llittin_g electrical power." The Court proceeded to observe that few employees who work outside the factory have \he[r duties connected with the work of the factory. The Jaw therefore is clear that any employee who is connected with the work of the factory would be an employee under section 2 (9) whether he works within the factory or outside its premises.

The question arose whether the employees whose work was t.i sell the products of the. factory would be called employees of the factory and as to whether pers.ons employed purely on the administrative side of the Mills and sale of finished goods could come within the pu;vicw of the definition, of "employee" under section 2(9) of the Act. In (Employees' State Insurance Corporation, Bombay vs. Raman (Chittur Harihar Iyer) (1), Gajendragadkar J., as he then was, held that to satisfy the requirement's of section 2(9) (i) it must be shown that the employee was employed in any work of. or incidental or preliminary to, or connected with the work of the factory. As in the case. of the factory in the present cao<: the work "began with the collection of raw materials and ended wit!' the production of finished articles, it would be difficult (c· accede tc the argument that the work of selling the products of t11e factory was con-nected with the work of the factory. The work of selling canno~ be said to be incidental or preliminary to the work of the factory.'' Jn Employees' State Insurance Corporation with its Regional office at Coimbatore vs. Ganpathia Pillai and Others("), a Bench of the Madras High Court considered the question whether persons employed in J managing agent's office not connected with manufacturing process or with work of factory can be deemed to be employees Iiubk for contri-butions under the Employees' State Insurance Act. Chief Justice Rajamannar held following the decision of the Bombay High Court reported in 1957 Vol. l, L.L.J. 267 (supra) that only persons who J1 are in some manner or other connected with the manufacturing process

cari be said to be employees within the meaning of the definition. Adverting to the words "incidental or preliminary to" the learned Judge l1eld that both the words have to be understood in conjunction with the work of the factory. Accepting the affi!lavit filed on behalf of one of the respondents that he was not attending to the accounts of the factory and that his work was confined to the accounts of the managing agents office, the learned Judge held it cannot be said in any sense th:it he was employed in any work incidental or preliminary to the woric of the factory.

The amendment to section 2.(9) introducing the inclusive definition referred to above was enacted by Act 44 of 1966 which came. into force on 28-1-1968. It may be noted that !he decisions of the Bombay •tnd the Madras High Courts referred to above (supra) were rendered be!..ire the amendment was in~oduced and it appears the amendment '.vasi

(l) [19571 lLLJ P 267 (Born) (2) A.l.R. 1961 Mad P. 176.

introduced for the purpos" of covering cases which were held to be outside the scope of section 2(9) by the two decisions. The amended section includes any perso.n employed for wages on any work connected . with the administration of the factory or any part, department or branch thereof or with the purchase of raw materials or for the distribution or sale of products of the factory. It will be seen that the work connected with the administration of the factory, the purchase of raw materials and the distribution or salo of products are bro.11ght within the ·scope of the definition. After the amendment therefore the plea tliat employ-ment in connection with the administration of the factory or with the purchase of.raw materials or distribution or· sale of products cannot be contended to 'be as not falling within the definition. · -

The contention of the learned counsel for the! appellants is that the word "factory" is confined only to persons who are employed with the manufa.:turing process. - .- - - -

The definition of the word factory is as follows :-

. "factory" -means any premises including . the . precincts · thereof whereon twenty or more persons are emplo; ed or _were employed for wages ·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 or is ordinarily so carried on but does not include a mine subject to the operation . of the Miiies Act, 1952 or a running shed;"

The ward factory is confined to the premises including the precin~ts theroofwhere the manufacturing process is carried on. The submission · OJI behalf of the appellants is that an employee of the factory should not only be an employee falling within the definition of -the:· word "employee" but also an employee of the factory i.e. of a factory as defined in section 2(12). In; support of their plea reference was made· to section 38 of the Act which requires that all employees of the factories should be insured. Section 38 lays down that all employees in factories, ·or establishments to which this Act applies shall be insured in the manner provided by this Act. It was submitted that to fall within the -F charging section 38 employees should be employees in factories and not employees connected with the work o.f the factory. · Anil Dewan. appearing for the Indian Chemical Industries submitted that the words. "employees in factories" are significqnt and that only employees who are employed in the factory are required to be insured and not employees who are employed in connection with the work of the factory. The learned counsel proceeded to point out that the amendment is confined ..,.... onlv to persons employed on any work connected with the administration

and not employed iri the factory and submitted that the_ :ioplicability should be strictly confined to the employees in factories. The conten-tion put forward, it was pleaded, is more reasonable as the Act thrm1Qh-out maintains a distinction between factory and establishments ar.d it is aroinst the tenor of the Act to bring emoloyees in establisl=ents· within the meaning of employees of the factories. The learned counsel also pointed out that in various firms the employees themselves iire al'ainst their being included within the scope of the Act and the resul-tant position will be that as between two establishments wl1ich are functioning under' the, same conditions one establishment which is con· nected with the sale of finished product of the factories will come within the scope of the Employees' Stare Insurance Act whereas the other establishment would be outside the purview of the Employees' State Insurance Act. On a careful consideration of section 2(9) section 2(12), section 38 and section J9 we are nnable to accept the restricted interpretation sought to be put upon the words "employees in factories". Even before . the amendment the word "employee" included persons connected with the work of the factory. The Supreme Court has laid down that a person employed in connecton with the work of the factory would. fall within the definition as it stood before tl1e amendment and it may not be open to the learned counsel to contend that it is only employees that are employed in the factory that would fall witJ1in the definition. The definition before the amendment as welf as after the amendment would include not only persons employed in the factory but also in connection with the work of the factory. Thns section 39 of the Ac~ makes the position clear. It provides that the contribution payable nnder the Act is in respect of an employee. It is not confined only to employees in factories. We see no justification for reading the words employees in factories in section 38 as meaning persons employed in factories only. We we nnable to accept the contention that the employees that are required to be insured under the Act are only those employed in factories defined under section 2 (12) of the Act.

It was submitted that the test as to whether an employee is an employee "in a factory" is the test of not physical presence or absence outside the precincts of the factory but the test is whether he is under the control of the factory and is on the factory wage roll, or other similar tests. We are unable to accept the contention for on a reading of the relevant sections it is clear that the word "employee" would include not only persons employed in the factory bnt also persons con-nected with the work of the factory. The employee may be workmg within the factory or outside the factory or may be employed for admi-nistrative purposes or for purchase of raw materials or for sale of !lie finished goods all such employees are included within the definition o[ "employee". A recent decision of the Bench of the Madras High Court in W.Ps 144-149 and 331 of 1971 dated 14th October, 1976 has also taken a similar view. We a~ree with the view taken by the judgments of the Andhra High Court and of the Calcutta High Court and dismiss these appeals with costs.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 652 of 1976. From the Judgment and Order dated 5-12-1975 of the Andhra Pradesh High Court in Writ Petition No. 2907 /74 and Civil Appeal No. 1314 of 1977 Appeal by Special Leave from the Judgment and Order dated 9-11-1976 of the Calcutta High Court in Matter No. 631 of 1973 and Civil Appeal No. 900 of 1977 From the Judgment and Order dated 21-6-1976 of the Andhra Pradesh High Court in Writ Appeal No. 286/76 and·

CMP Nos. 8014/76 and 7030, 7853, 7854 and 12195 of 1977.

Sachin Choudhary and Naunit Lal for the Appellant in CA 652/76. Shanker Chose and D. N. Gupta for the Appeallant in CA 1314/77. Naunit Lal, Kai/ash Vasudev and Miss Manju Jetley for the Appel-fant in C.A. 900 of 1977.

G. P. Pai, O. C. Mathur and D. N. Mishra for the Jntervcner-Voltas. Sachin Choudhary, Anil Diwan, 0. C. Mathur and D. N. Mishra for the Intyrvener in Hindustan Lever.

0. C. Mathur, D. C. Shroff and D. N. Mishra for lntervener-Rallia India Ltd.

Anil Diwan, D. C. Shroff and 0. C. Mathur for the Inlerl'encr-Merch Shop & Dhome of India.

D. C. Shroff and I. N. Shroff for the Intervener-LC.I. (India) P. Ltd. .

S. N. Kacker, Sol. Genl., K. N. Bhat and Girish Chandra for Respondent No. 2 in CA 652/76 and RR in CA No. 1414 and 900/77.