Megha 906_fa_78_1993.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO.78 OF 1993

ISMT Limited, a Company incorporated

under the Companies Act, 1956, Pune

...Appellant

Versus

The Employees State Insurance

Corporation, New Delhi and Ors.

...Respondents

...

Mr. Kiran Bapat with M/s. Vipul Patel i/b. M/s. Haresh Mehta and Co.

or the Appellant.

Mr. P.M. Palshikar for the Respondents.

CORAM: SMT. ANUJA PRABHUDESSAI, J.

DATED : 1^st AUGUST, 2022.

P. C. :-

1.

The Appellant herein has assailed the judgment dated

13/08/1992 passed by the learned Civil Judge, Employees Insurance

Court, Pune, in Application (ESI) 8 of 1986.

2.

The Appellant-Establishment had filed an application

challenging the demand by the E.S.I. Corporation under Section 45A of

the Employees’ State Insurance Act, 1948. The case of the Appellant

was that the Appellant has its factory at Ahmednagar where the

provisions of E.S.I. scheme were not made applicable. The Appellant

has its head office at Pune, which was registered under the Shops and

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Establishment Act, 2017. Notification dated 19/11/1976 has been

made applicable to the premises from 01/01/1986. The Appellant had

alleged that though more than 20 employees are working in the

establishment at Pune, no manufacturing process was being carried out

in the said establishment and that the work being carried out in the

said establishment was in connection with and incidental and ancillary

to the business of the factory at Ahmednagar. It was stated that since

the provisions of ESI scheme were not made applicable to the factory at

Ahmednagar, the employees at the registered /head office of the

Appellant’s establishment at Pune could not be covered under the

provisions of ESI Act.

3.

The Respondent herein had filed written statement wherein

it was specifically averred that the establishment of the Appellant at

Pune is engaged in the control and co-ordination of the sale of the

products of its factory at Ahmednagar and that it satisfies the definition

of ‘shop’. It is averred that it is engaged in sale of goods even though

no activity of retail or wholesale sale of goods is carried out in the

establishment of the Appellant at Pune.

4.

The learned Judge, upon considering the evidence on

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record held that the establishment at Pune is covered under the

notification dated 19/11/1976 and accordingly dismissed the

application. Being aggrieved by this order the Appellant has filed this

appeal.

5.

Mr. Kiran Bapat,learned counsel for the Appellant submits

that the Court has recorded a finding that the activity in the Appellant’

s

establishment at Pune was related to the business in the factory at

Ahmednagar. A finding has been recorded that the establishment at

Pune does the work in connection with and incidental and ancillary to

the business of the Company at Ahmednager. He submits that since the

factory at Ahmednagar is not covered under the E.S.I. Act, the

employees at the head office could not be covered under the provisions

of the ESI Act.

6.

Per contra, Mr. P.M. Palshikar, learned counsel for the

Respondent submits that the establishment at Pune is a separate and

distinct establishment covered under the Notification dated

19/11/1976. He has relied upon the decision of the Hon’

ble Supreme

Court in Bangalore Turf Club Limited vs. Regional Director, Employees’

State Insurance Corporation (2014) 9 SCC 657 to contend that the

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term ‘establishment’ would mean the place for transacting any

business, trade or profession or work connected with or incidental or

ancillary thereto. He submits that the establishment at Pune is covered

by Notification dated 19/11/1976 since it carries out trade and

business. He submits that there is no dispute that there are 20

employees in the said establishment, which controls and co-ordinates

sale and it is a ‘shop’

. Co