Tiffany''s Bar and Restaurant vs Regional Director, E.S.I.C.

Venkatachala, J.—M/s. Tiffany''s Bar and Restaurant which is the appellant in this Appeal filed u/s 82 of the Employees'' State Insurance Act, 1948 (''the Act'', for short) has questioned the order dated September 23, 1991 made by the Employees'' Insurance Court (for short, the Court) upholding the liability of the appellant to pay contribution of Rs. 3,107.35 in respect of wages paid by it to the band boys who had been engaged during the years 1985-86 and 1986-87 for playing during its certain business hours in deciding the ESI Application No. 80 of 1988 made before it by the appellant.

The short question which came up for consideration by the Insurance Court was whether the band boys for whom the appellant was paying wages for the music played by them in its Bar & Restaurant, could be regarded as employees within the meaning of Section 2(9) of the ESI Act so as to make the appellant liable to pay contribution under the Act. That question has been answered by the Insurance Court in the affirmative on the basis of the evidence as to the work carried on by the band boys in relation to the appellant-establishment M/s Tiffany''s Bar & Restaurant. The evidence of a partner of the appellant-firm P. C. K. Thakaran-AW-1, read thus :

"During the period for which the ESI contribution is claimed, the music was being played in the restaurant by a set of Band Boys. The Band Boys are not our employees. The leader of the Band Boys brings the Band Boys to the restaurant. The leader brings different Band Boys on different occasions. We go on changing the Band Boys once in two or three months when their performance is not good. The Band Boys play the music only between 7 pm. to 10.30 or 11 pm. We do not charge the customers for the music arranged at the time of dinner."

and during his cross-examination, his evidence read thus :

"The Band Boys play the music in the premises of Tiffanys Bar & Restaurant. The music is played almost everyday. The payment is made to the Band Master. It is true the timings of music are given by us. The Band Master and the Band Boys come to our restaurant with my knowledge."

The said evidence has come to be considered in examining the question before the Insurance Court on the basis of what was said by a Division Bench of this Court in Escorts Ltd. Vs. Regional Director, ESIC, In dealing with the word ''employee'' as defined in Section 2(9) and words ''Preliminary'' and ''incidental'' occurring thereunder, it was observed by this Court thus :

"The definitional-net is kept, designedly wide and comprehensive to promote the beneficent objects of the legislation. There need not be a direct master-servant nexus. Any person engaged by or through an "immediate-employer" such as a contractor, would also inter alia, become employee if he is employed on the premises of the factory on work which is preliminary to the work carried on or incidental to the purposes of the factory. The expression "preliminary" or "incidental", consistent with the objectives and purposes of this piece of beneficent and social welfare legislation must receive a liberal, and not a restrictive, construction so as to promote the social objectives."

The said evidence and the view taken by this court in the case of M/s. Escorts Ltd. (Supra) as to an ''employee'' to come within the meaning of section 2(9) of the Act, has made the Insurance Court to reach the conclusion that the band-boys employed by the appellant-restaurant through a leader who is an immediate employer for playing music for the purpose of improving its business-being music is preliminary or incidental and is connected with the business of the Bar and Restaurant of the appellant, and, as such, the band boys are employees within the meaning of Section 2(9)(ii) of the Act and the amounts paid to them are wages as defined u/s 2(2) of the Act. The conclusion so reached by the Insurance Court has made it to hold that the principal employer, the appellant, is liable to pay the ESI contribution on the amount paid towards the band boys. The said affirmative answer given to the question by the Insurance Court is questioned before us by the learned Counsel Sri Prabhakar appearing for the appellant.

According to the learned Counsel, the Insurance Court should not have considered the playing of the music by the band boys as a preliminary or incidental work connected with the business of the Bar & Restaurant and as such Section 2(9)(ii) should hot have been made applicable to the instant case. In that regard he sought to invite our attention to a decision of the Supreme Court in Royal Talkies, Hyderabad and Others Vs. Employees State Insurance Corporation,

We have found it unnecessary to examine the question whether the work of the band boys should be regarded as work connected with the business of the appellant-Bar & Restaurant, on the basis of clause (ii) of Sub-section (9) of Section 2 of the Act. Inclusion of certain persons into the category of employees by Act 44 of 1966 which came into effect with effect from January 28, 1968 itself is sufficient for us to hold that the band boys with whom we are connected are band boys connected with the appellant-Bar & Restaurant. That apart, the inclusive definition of the ''employee'' in the sub-section (9) of Section 2 reads thus :

"2(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 the factory or establishment, whether 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; or

(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 let 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 establishment on any part, department or branch thereof or with the purchase of raw materials for, or the distributory or sale of the products of the factory or establishment ............"

In the instant case, it cannot be disputed that the products for sale of the establishment i.e. Bar & Restaurant can be drinks and foods i.e. eatables. When inclusive definition says that any person employed for wages on any work connected with the sale of the products of the establishment, is an employee under the Act, we are unable to think that the work of playing music by the band boys on wages cannot be regarded as the work connected with the appellant-establishment in the matter of sale of its products. If that be so, the order of the Court below, the Insurance Court, by which it was held that the band boys employed for wages in the matter of playing music in its Bar & Restaurant ought to be regarded as employees within the meaning of the inclusive definition of the ''employee'' in Section 2(9) of the Act, for whom the contribution under the Act is liable to be paid, does not suffer from any infirmities and the same has to be upheld.

In the result, we dismiss this Appeal without admitting it.