Shri A.K. Das vs Employees State Insurance Corporation and Others

K.N. Saikia, J.—The only question involved in this Miscellaneous First Appeal is whether the stated eleven employees working in Sales Department of the Appellant''s company, namely, the Dibrugarh Electric Supply Co. (P) Ltd, were covered by the Employees'' State Insurance Act, 1948 (shortly, ''the Act'') making their employer liable to insure them paying contributions under the said Act.

On a petition filed by the Appellant u/s 75(1)(a) of the Act, considering the nature of their duties, the Employees'' Insurance Court found that they were so covered against which this appeal is preferred.

The first point for consideration is whether the impugned order involves a substantial question of law, u/s 82 of the Act, save as expressly provided in that section, no appeal shall lie from on order of the Employees'' Insurance Court; not an appeal shall lie to the High Court from such an order that involves a substantial question of law.

Mr. Sarma, the learned Counsel for the Appellant, submits. that the impugned order involves a substantial question of law, inasmuch as the employees who worked in Sales Department having nothing to do with generation of electricity, were held to be covered by the Act. This means that Section 38 of the Act was applied to the employees.

It is true that there is a shade of opinion that questions of application of a particular provision of an Act or a particular Rule is itself a question of law under certain circumstances. Considered from that angle whether the employees were covered by the Act under the facts and circumstances of the case may be treated as a question of law. u/s 38 of the Act, subject to the provision of the Act, all employees in factories or establishments to which the Act applies shall be ensured in the manner provided by the Act, The eleven employees have been held to have belonged to the establishment though not to its generating unit. Thus, the application of the provision may be said to be a question of law.

Assuming that this is a substantial question of law, we held that an ''employee'' is defined in Section 2(9) of the Act as follows:

(9). ''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 of, or incidental or preliminary to or connected with the work of, the factory or establishment whet-her such work is done by the employee in the factory or establishment or elsewhere; or

(ii) who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment;

Admittedly the 11 persons, viz. (1) S.K. Ganguli, (2) N.C. Pal, (3) Subrata Roy, (4) B.R. Saikia, (5) Prabin Bhuyan, (6) J.P. Sribastava, (7) B.K. Dutta, (8) K.R.S. Pillai, (9) Bindeswar Prasad, (10) Rammurat Missir, and (11) Man Bahadur Suba were employed by the Appellant; but it is submitted that their function was only to collect electricity bills and they had no direct relation with the generation of electricity or manufacturing process. That by itself, in our opinion, will not take them out of the definition of the ''employee'' since they admittedly belonged to the Appellant''s ''establishment'' to which the Act applied and they were also under the direct control of the Appellant. The word ''establishment'' has not been defined in the Act. Establishment, according to Black''s means a place of business; public or private institution. According to Oxford Dictionary it means an organised body of men maintained for a purpose; a house of business. An establishment is in organisation which employee persons between whom and the establishment the relationship of employee and employer exists Sri Varadarajaswami Transports (Pvt.) Ltd. Vs. Regional Provident Fund Commissioner, Madras and Another, . It means any place where any industry, trade, business or occupation is carried on. The Appellant''s company was such an establishment.

The above being the factual position, we do not find any infirmity in the finding of the Employees'' Insurance Court that the eleven persons were employees of the Appellant''s company for the Act and it was required to insure them paying the contribution under the Act.

This appeal is accordingly found to be without merit and hence it is dismissed. The stay order stands vacated. No order as to costs.