The functional integrality of the establishments justified their clubbing and coverage under the Employees State Insurance Act, 1948.

JUDGMENT :

Heard the parties.

2. This Appeal under Section 82 (2) of the Employees’ State Insurance Act, 1948 has been preferred against the Order dated 21.01.2009 passed by the Labour Court, Ranchi, in E.S.I. Case No.02 of 2003 by which the labour court has dismissed the petition filed under Section 75 (1) (a) and (g) of the Employees’ State Insurance Act, 1948 by the appellant herein.

3. The brief facts of this case is that the Insurance Inspector of the Employees’ State Insurance visited the sweets and namkeen shop of the appellant in the name and style of M/s. Vrindavan on 01.04.1998 and on the next day i.e. 02.04.1998, he conducted a survey and found that altogether 27 employees were employed by the said M/s. Vrindavan and to other establishments which can be clubbed together for the purpose of the provisions of the Employees State Insurance Act, 1948. Out of the 2 establishments which were brought one chat shop was running in the verandah of M/s. Vrindavan for which payments were collected at the counter of M/s. Vrindavan and another establishment from which sweets and namkeen items were supplied to M/s. Vrindavan was said to be belonging to the father of the owner of M/s. Vrindavan who resides jointly with the owner of M/s. Vrindavan and consequent upon that a demand notice was sent to the appellant on 27.09.2002.

The case of the appellant-petitioner is that the sweet shop of the appellant-petitioner has no functional integrality with the Chat shop run in its verandah by one Manoj Kumar upon taking rent of that place from the appellant-petitioner and the other shop at Niwaranpur which was clubbed with the shop of the petitioner; is run by the father of the proprietor of the petitioner-appellant and these three establishments have separate licence under Bihar Shops and Establishment Act. Hence, it was claimed by the appellant-petitioners that the respondent-opposite parties committed error in clubbing the three establishments together and arriving at the conclusion that the three establishments together employed 27 persons, hence, the establishments of the petitioner is covered by the provisions of Employees’ State Insurance Act, 1948. The appellant-petitioner further pleaded that the opposite parties-respondents, thereafter issued notices and letters to the petitioner from time-to-time which have been annexed as Annexure-6, 6/A and 8 to the petition.

4. The appellant-petitioner prayed for the following reliefs:-

(a) to injunct permanently and to stay the operation of the aforesaid notices as contained in Annexures-6, 6/A and 8 and also to injunct permanently any other action or proceedings in pursuance of or in furtherance of the same;

(b) to hold that the coverage of the provisions of E.S.I. Act to the petitioner’s establishment is illegal, arbitrary, untenable and to set aside the same;

(c) to hold that the petitioner’s establishment cannot be clubbed or combined with other establishments of M/s Dwarika Prasad and M/s Manoj Kumar and

(d) the purported order dated 11.05.2005 under Section 45A passed by the Deputy Director of the ESI Corporation at Ranchi be set aside with or without such directions and observations as may be deemed to be fit and proper and the said order be stayed until disposal of this case, and

(e) to pass any other or further order or orders as may be considered to be fit and proper on the facts and in the circumstances of this case.

5. The respondents-opposite parties entered appearance before the Labour Court and in their show-cause, challenged the maintainability of the petition on various technical grounds besides they have pleaded that though the appellant-petitioner claims that his establishment was not a restaurant but it was found that in the establishment of the appellantpetitioner, there is arrangement for the customers to eat sweets, namkeen, chat and kulfi in standing position. It is further pl