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2014 Supreme(Bom) 220
In the High Court of Bombay at Goa
T.V. NALAWADE, J.
Employees State Insurance Corporation, Through its Regional Director
Versus
M/s. Elesbao Pereira & Sons
Appeal Under E.S.I. No.1 of 2011
Decided on: 29-01-2014
For the Appellant:A. Agni, Advocate.
For the Respondents:D.B. Ambekar, Advocate.
The main legal point established in the judgment is the determination of the appropriate Government for the application of the Employees State Insurance Act, 1948 to a business concern involved in stevedoring at a major port. The judgment also emphasizes the analysis of the provisions of the Act, the nature of the establishment's business, and the control over the employees to ascertain the appropriate Government.
Headnote:
Employees State Insurance Act - Jurisdiction of appropriate Government - Section 82 - The judgment discusses the application of the Employees State Insurance Act, 1948 to a business concern involved in stevedoring at a major port. The court analyzes the provisions of the Act, the nature of the establishment's business, and the control over the employees to determine the appropriate Government for the application of the Act. The court also considers the seasonal nature of the business and the definition of 'shop' under the State Government's notification.
Fact of the Case:
The appellant, Corporation, filed an appeal under Section 82 of the Employees State Insurance Act, 1948 against the judgment and order of the Employees Insurance Court, South Goa, Margao. The dispute arose when the Corporation made orders to cover the establishment of the respondent under the Act and to ask for contributions. The respondent, a business concern involved in stevedoring at a major port, challenged the orders, contending that the appropriate Government for covering its employees under the Act was the Central Government, not the State Government.
Finding of the Court:
The Insurance Court held that the establishment's employees were not covered by the State Government's notification and quashed the coverage order made by the Corporation. The court also considered the seasonal nature of the business and held that the establishment could not be treated as a shop or establishment coverable under the Act.
Issues: The court framed three issues, including the determination of the appropriate Government for the application of the Act and the coverage of the establishment's employees, the applicability of the Act to the establishment's business, and the treatment of the establishment as a shop or establishment under the State Government's notification.
Ratio Decidendi: The court analyzed the provisions of the Employees State Insurance Act, 1948, the nature of the establishment's business, the control over the employees, and the seasonal nature of the business to determine the appropriate Government for the application of the Act. The court also considered the definition of 'shop' under the State Government's notification and the applicability of the Act to the establishment's employees.
Final Decision: The appeal was allowed, and the matter was remanded back to the Insurance Court for a decision on the wages fixed for all the employees. The court held that the State Government was the appropriate Government for the application of the Act to the establishment.
The appeal is filed under Section 82 of Employees State Insurance Act, 1948 (in short, 'ESI Act') against judgment and order of EIC No.3/2004, which was pending before Employees Insurance Court, South Goa, Margao. The application filed by present respondent, business concern under Section 75 of ESI Act to challenge the orders made by present appellant, Corporation on 29/07/1998 and 17/08/2004, which were made to cover the establishment of respondent under ESI Act and to ask the respondent to give the contribution, is allowed by Insurance Court. In the present proceedings both sides are heard.
2. In short, the facts leading to the institution of appeal can be stated as follows:
On 29/06/1998, one Inspector of Insurance Office of the appellant, Corporation visited the office premises of present respondent situated at Pereira Chamber, Vasco-da-Gama and he inspected the record of the employees of the respondent. Accountant of respondent produced the record like wage register, attendance register, etc. The Inspector found that in the month of January, 1997 there were 27 employees on this establishment. The Inspector found that the unit of respondent was established many years back and it was in the business of “shipping agents and cargo handling agents”. The Inspector considered the wage register, attendance register and other record supplied by the Accountant. He left visit note with the office of the respondent unit and informed that the establishment was coverable under the provisions of ESI Act from 1/01/1997, provisionally.
3. By letter dated 3/08/1998, the Regional Director of appellant, Corporation asked respondent to take steps for registration and for depositing the contribution as per the provisions of ESI Act. It was also informed that under Section 1(5) of ESI Act, appropriate Government, Goa State Government had issued notification dated 21/06/1977 in this regard. Copy of the notification was supplied to the respondent by appellant, Corporation. Appellant calculated the contribution payable by respondent and it was informed that the amount calculated was the proposed amount which would be recovered as contribution from respondent. Opportunity was given to the respondent to offer explanation in respect of the liability shown in the correspondence. The respondent was directed to pay contribution for the period 1/01/1997 to 30/09/1998. Hearing was given to the respondent after giving of the say by the respondent and after that the order under Section 45(A) came to be made.
4. The respondent has contended in the application filed under Section 75 of ESI Act that the order made by Corporation under Section 45(A) of ESI Act is without jurisdiction. It is contended that appropriate Government under ESI Act for covering the employees of present respondent is Central Government as the employees are working in Major Port. It is contended that the employees of the respondent-establishment are not covered by the State Government's notification as most of the employees get monthly wages of more than Rs.6,500/- and this amount does not include overtime.
5. The respondent-establishment contended that it is bound by the legislation and regulations made with regard to the working of Major Port. It is contended that under Section 43 of Major Port Trust Act, 1963, which covers Mormugao Port Trust (MPT), only the Board has the power to undertake services at the Major Port by itself or through other persons like stevedore licences. It is contended that this Act shows that the Board is under control and supervision of the Central Government. It is contended that under this Act powers are given to the Board to make regulations. It is contended that the powers are with regard to reception, portage, storage and removal of goods brought within the premises of the Port. It is contended that under Mormugao Port Trust (licensing of stevedores) Regulations, 1987, the stevedore is bound to employ at least one experienced person to supervise
