JUDGMENT - S.M. DAUD, J.:---A somewhat difficult question arises in this petition under Article 226 of the Constitution vis-a-vis the liability of a Technical Director designated as an "occupier" under Factories Act, 1948, but sought to be made personally liable for recovery of the employers share of contributions payable under section 40 of the Employees State Insurance Act, 1948 hereinafter referred to as the 'ESI Act'.

2. Respondent No. 1 G.N. Mathur, was the Technical Director of a company doing business in the name and style of Elphinstone Spinning and Weaving Mills Ltd. which is respondent No. 11 to the present petition. The other Directors of the company were respondents Nos. 4 to 10. The employer's contribution under ESI Act had not been remitted by the company for the period January 1977 to September 1983 both inclusive. For that reason the 1st petitioner-hereinafter referred to as 'the Corporation' - gave notices to Mathur and respondents Nos. 4, 7 to 10 to remit unpaid contributions at once. In the meantime the company came to be taken over and now vest in the 3rd respondent being the National Textile Corporation. The company questioned the take over and has succeeds in this Court. An appeal against this Court's decision has been admitted and is pending before the Apex Court at Delhi. Respondents 4 and 7 to 10 preferred Writ Petition Nos. 19 to 22 and 228 all of 1985 respectively questioning the notices issued to them. Those petitions were heard together and decided under a common judgment by Mr. Justice Dudhat, on 26th October, 1990. Therein an affidavit came to be filed by petitioner No. 2, Achar. The stand taken by Achar was that Mathur though designated as an "occupier" was not empowered to deal with the financial matters. The financial control was retained entirely in the hands of respondent No. 4. This was to off-set the attempt of the petitioners in the five petitions mentioned above to absolve themselves on the plea that an 'occupier' had been designated and for that reason they could not be proceeded against. The aforementioned petitions of respondents Nos. 4 and 7 to 10 succeeded and the notices issued against them were quashed. So far as Mathur is concerned the move made by him was to approach the ESI Court by means of an application under section 75 of the ESI Act. He sought a declaration that he was not liable to pay any part of the amount due from the company as the employer's share of the contribution. The application was opposed by the petitioners who contended that Mathur at any rate was personally liable for the employers, share of contribution by virtue of his being an 'occupier' by the ESI Act vis-a-vis section 2(17) of the latter Act. The Court presided over by the 2nd respondent sustained the contention advanced by Mathur and that is why the petitioners have came to this Court.

3. The stand taken by the petitioners is that the ESI Act renders 'a principal employer' liable to remit the contributions payable by the employer as also employees. This liability is cast upon the principal employer under section 40 of the ESI Act. The expression 'principal employer' means in the case of a factory the 'owner' or 'occupier' of the factory. An 'occupier' under the Factories Act, 1948 means 'the person who has ultimate control over the affairs of the factory' Mathur was designated as such an 'occupier' and would therefore be a principal employer. Consequently, he had been rightly proceeded against and the 2nd respondent was in error in quashing the notices issued to Mathur. Mathur has the support of respondents Nos. 4 to 11 and the stand taken by all of them is that Mathur was a mere Technical Director. He was designated as an 'occupier' under the Factories Act, 1948, to ensure compliance with the requirements of that Act in so far as the provisions thereof related to the responsibility and accountability of the management to ensure industrial safety and penalties specified for the mishaps where the same h

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