Persons employed whether includes casual employees.

Govindan Nair, CJ.-The question raised in this appeal, is whether a fair interpretation of the word "factory" as defined in section 2 (12) of the Employees’ State Insurance Act, 1948 (hereinafter referred to as the Act) would enable the Court to include casual employees working in a factory also for making up the number 20 mentioned in that definition. The view that has been taken in the judgment under appeal is that casual employees cannot be counted.

2. "Factory" is defined in section 2 (12) of the Act thus-

" ‘Factory’ means any premises including the precincts thereof whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on, but does not include a mine subject to the operation of the Mines Act, 1952, or a railway running shed."

The above definition is important because the Act as is seen from section 1 (4) would apply only to factories. In Employees’ State Insurance Corporation v. Gnanambikai Mills Ltd.1, this Court has taken the view that casual employees will not be included within the meaning of the word ‘employee’ as defined in section 2 (9) of the Act. The word is defined thus2 (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 — (a) who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the 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 or any work connected with the administration of the factory or establishment or any part; department or branch thereof or with the purchase of raw materials for, or the distribution or sale of the products of the factory or establishment."

We respectfully agree with the view expressed in the said decision. No decision of this Court or that of the Supreme Court taking a contrary view has been brought to our notice. Our attention was drawn to the decision of this Court in Messrs. Dhala Tanning Co. v. Employees’ State Insurance Corporation1. In that decision, there was an expression of opinion by way of obiter at page 80 as follows:-

"That would prima facie show that even a casual labourer has to be counted in order to determine whether a particular premises is a factory as defined under the Act or not. But whether a casual worker is entitled to insurance cover under the Act may be a different question. In Gnanambikai Mills v. Employees’ State Insurance Corporation2, Ramamurti, J., has held that the provisions of the Act would not apply to casual workers. But we think it is not necessary to go into this aspect of the matter because from the materials on record, we have to proceed on the footing that there were really 26 permanent workers in the premises in question."

In view of the fact that the Court proceeded on the footing that there were twenty permanent workers in the premises in question, the question that we are considering did not arise for decision in the case referred to above, and the observation therein therefore cannot affect the decision in L.P.A. No. 7 of 1970 which incidentally is a judgment confirming the view expressed in Gnanambikai Milts v. Employees’ State Insurance Co

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