JUDGMENT:- This appeal by an establishment is directed against an Order passed by the learned Judge, B.S.I. Court, South Goa, rejecting its application under Section 75 of the Employees State Insurance Act, (hereinafter referred to as the E.S.L Act), for a declaration that provisions of E.S.L Act do not apply to it.

2. The facts which led to filing of this appeal are as under:

On 07.03.1989, respondent directed appellant to submit particulars in prescribed format. On 28.03.1989, appellant informed respondent that provisions of E.S.L Act did not apply to appellant-Company. Appellant supplied requisite information on 23.08.1989. Respondent informed appellant that it was covered under the E.S.I. Act 1948 w.e.f. 02.07.1977 in terms of Notification by Government of Go a under Section 1(5) of the Act. On 27.10.1989, the Corporation demanded contribution from July, 1977 to September, 1989 amounting to Rs.4,49,148.00 with interest @ 6% per annum In November, 1989, appellant challenged this demand by an application under Section 75 of the E.S.L Act which was rejected by the impugned order.

3. According to the appellant, the establishment of the appellant is engaged in the sampling of iron ore and for the above said work the establishment engages chemist, samplers etc. The said employees are employed in the vicinity of a Major Port, namely Mormugao Port. Sample boys pickup particulars of samples from the vessels berthed at the harbour, fill the forms, carry the samples to the crushing shades situated in the vicinity of the port and such samples are thereafter sent to the laboratories situated away from the port for testing. The samplers, the assistant samplers and assistants chemist work under the instruction of the chemists.

4. According to the appellant, considering this nature of work which was entirely connected with activities of a major port, the "appropriate Government" in relation to appellant's establishment was the Central Government. Hence, notification dated 21.06.1977, published on 30.06.1977 issued by State Government was unhelpful for making provisions of the Act applicable. In any case, appellant is not a shop.

5. Appellant's workmen have been held to be dock workers, covered by the provision of Dock Workers (Safety, Health and Welfare) Act of 1986 and to whom benefits of various medical schemes are available. Therefore, according to appellant, the learned Judge, E.S.I. Court erred in not accepting appellant's contention that the provisions of E.S.I Act did not apply to it, and so seeks to have the said Judgment and Order quashed and set aside.

6. This appeal was admitted to consider the following substantial questions of law:

A. Whether appropriate Government in relation to the establishment of the petitioner is the Central Government?

B. Whether the notification dated 30.06.1977 of the State Government extending the provisions of the Act to establishments referred to therein is applicable to the petitioner?

C. Whether the establishment of the petitioner be termed as "Shop"?

D. Whether the order of the respondent Corporation is in accordance with the provisions of the E.S.I. Act, 1948?

7. These questions are answered thus for the reasons that follow:

Question A : No

Question B : Yes

Question C : Yes

Question D : Yes

8. I have heard Shri. Sardessai for appellant and Smt. Agni for respondent, in support of their respective contentions. Though Clause 4 of Section 1 of the Act provides that the Act applies in the first instance to all factories, Clause 5 thereof enables appropriate Government to extend the provisions of the Act to any establishments. In exercise of these powers, the Government of Goa by notification dated 21.06.1977 extended the provision to certain establishments employing twenty or more persons. This list also enumerates "shops".

9. The learned Counsel for the appellant launched a multi pronged attack to the applicability notification dated 21.06.1977. He contended that the Government of Goa was not appropriate G

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