Jammu & Kashmir High Court - Srinagar Bench
Private Schools Coordination vs Union Of India & Ors (Air on 24 May, 2010
IN THE HIGH COURT OF JAMMU & KASHMIR AT SRINAGAR LPA No. 200 of 2009 IA No. 312 of 2009 Private Schools Coordination Petitioners State & Ors Committee Respondents !Mr. M. A. Qayoom, Advocate ^Mr. Harshvardhan Gupta, Advocate Honble Mr. Justice Dr. Aftab H. Saikia Chief Justice, Judge Honble Mr. Justice Mohammad Yaqoob Mir, Judge Date: 24/05/2010 :J U D G M E N T:
Applicability of the Employees State Insurance Act, 1948 (hereinafter referred to as the Act) to the appellant schools was questioned by the appellants in the petition (OWP) No.845/2007, which has been dismissed vide judgment impugned dated 4.8.2009. Dissatisfied with the findings recorded in the judgment, instant LPA has been filed.
Heard learned counsel appearing for the parties.
Learned counsel for the appellants contended that the matter has not been correctly appreciated and questioned the applicability of the Act on the following grounds:-
(i) The schools do not fall within the ambit of establishments as provided in Section 1(5) of the Act, so the provisions of the Act cannot be extended to the schools as neither being commercial and industrial establishment nor a factory;
(ii) Requirement of prior notice for intention to apply the Act to the schools as envisaged by Section 1(5) of the Act has not been complied with, so extension of the applicability of the provisions of the Act to the schools by the Government is without jurisdiction.
While supporting the contention that the application of the Act cannot be extended to the schools, it was contended that the Act in fact has to be applied only to the factories (including factories belonging to the Government). The schools do not fall within the definition of factory which is defined in Section 2(m) of the Factories Act, 1948. He further added that the word industrial establishment as occur in Section 1(5) of the Act is defined in the Industrial Disputes Act, so referred to Section 2(ka). While doing so tried to canvass that the Act applies only to the factories, industrial establishments and commercial establishments, so does not apply to the schools.
The contention as raised is totally misplaced as Section 1(4) of the Act would provide that at the first instance Act shall apply to all factories but Section 1(5) of the Act clearly provide that the provisions of the Act or any of them can be extended to any other establishment or class of establishments, industrial, commercial, agriculture or otherwise.
Conjoint reading of Section 1(4) and Section 1(5) the Act is clearly indicative of the position of law that at the first instance Act was applied only to factories but its extension to other establishments is also permissible. It shall be quite relevant to quote Section 1(4) and Section 1(5) of the Act:
(4) It shall apply, in the first instance, to all factories (including factories belonging to the Government) other than seasonal factories:
Provided that nothing contained in this sub-section shall apply to a factory or establishment belonging to or under the control of the Government whose employees are otherwise in receipt of benefits substantially similar or superior to the benefits provided under this Act.
(5) The appropriate Government may, in consultation with the Corporation and where the appropriate Government is a State Government with the approval of the Central Government , after giving six months notice of its intention of so doing by notification in the official Gazette, extend the provisions of this Act or any of them, to any other establishment or class of establishments, industrial, commercial, agriculture or otherwise.
Provided that where the provisions of this Act have been brought into force in any part of a State, the said provisions shall stand extended to any such establishment or class of establishments within that part if the provisions have already been extended to similar establishment or class of establishments in another part of that State. The plain and conjoint reading of the said sub-section 4 and sub-section 5 of the Section 1 of the Act leaves no room for doubt that the Act cannot be applied only to factories and industrial establishments. The argument raised in this connection is not only misplaced but is also misdirected. To say that the Act will only apply to commercial establishments or to industrial establishments or to the factories, is without any legal basis when the Act will apply to all such establishments, be it commercial, industrial, agriculture or any other class of establishment or otherwise as the government may think proper to be brought in within the ambit of the Act, therefore, schools also fall within the ambit of the establishments over which provisions of the Act can be extended.
The contention of the learned counsel for the appellants that the educational institutions do not fall within the scope of commercial establishments so as to attract the applicability of the provisions of the Act. In support thereof referred to the judgment delivered by this Court in LPA (OWP) No.36/2004 and also to the judgment rendered by the Honble Apex Court in the case titled Modern School Vs. Union of India & Ors (AIR 2004 SC 2236).
The contention has got no bearing as the question of schools being commercial establishment is not an issue because it is not on the basis of schools being commercial establishment the provisions of the Act have been applied. scope of extending applicability of the Act in terms of Section 1(5) is not restricted to industrial and Commercial establishments as it is categorically provided therein that the provisions of the Act or any of them can be extended to any other class of establishment and then it is also recorded or otherwise, means in addition to commercial or industrial establishments, the provisions can be extended to any other establishment also. The words any other class of establishment and or otherwise as occur in Section 1(5) of the Act are wide enough to take into its sweep any establishment which include the educational institutions.
The another important question which arose for consideration has been rightly addressed by the learned Writ Court i.e. before extending the application of the Act to any establishment which include also the education establishments, the State Government can do so only after approval of the Central Government and then after giving six months notice of its intention of so doing by notification in official gazette and has also to do it after having consultation with the Corporation.
The records as are available on the file would indicate that the requirements for extending the application of the Act to the schools have been fully satisfied. In the communication dated 19.1.2004 addressed to Secretary, Government of India, Ministry of Labour, it has been clearly mentioned that the Government intends to issue notification under sub-section 5 of Section 1 of the Employees State Insurance Act, 1948, to extend the provisions of said Act to the establishments employing 20 or more employees in Educational Institution (which include public, private, aided or partially aided institutions including those run by individuals, trustees, societies or other organizations) and in terms of said communication formal approval of the Government of India has been sought. Same has been conveyed by the Government of India Ministry of Labour vide its No.S-38025/23/2003-SS.1 dated 7th of July, 2004, where- under grant of approval has been conveyed under sub-section 5 of Section 1 of the Act to the extension of ESI scheme to Educational Institutions, based on which requisite notification in terms of SRO 292 dated 3rd September, 2004 has been issued, where-under it has been mentioned that with the approval of the Central Government, the Government of Jammu & Kashmir intends to extend the provisions of the Act to the class of establishments specified in the schedule thereto and objections have been invited to the proposed extension of the provisions to be filed within six months from the date of publication of such notice in the Government gazette. When no objection was received, the Government issued SRO 319 dated 25th of November, 2005, where- under provisions of the Act have been extended to the educational institutions referred therein.
What emerges from the aforesaid position of the referred communications, SRO 292 and SRO 319, is that the provisions of Section 1(5) of the Act have been fully complied with, therefore, on this count the contention of the learned counsel that six months notice was not given, is misplaced. However, the contention of the learned counsel that when a notice is published in Government gazette, normally public do not know, same is true about the appellants, they could not know anything about the notification, therefore, they have been deprived of filing objections, as such, have been condemned unheard. The contention has to be rejected as when any matter is published in the Government gazette, it becomes public. That is for the public to know what is published. It is not practicable that the Government gazette can be distributed among persons living in every nook and corner of the State. The appellant institutions should have taken care by having subscribed for being supplied the Government gazette regularly or should have taken care to know what is published in Government gazette, when the Government gazette is for public information , therefore, the question of condemning unheard does not arise.
The Employees State Insurance Act, 1948, which by all standards is laudable legislation for social security, protects the rights and dignity of the workers in times of physical or financial distress. It provides benefit to employees in case of sickness, maternity and employment injury and other certain matters in relation thereto. Earlier it was made applicable only to factories but the Act by itself keeping in view its laudable objectives has envisaged extension of its benefits to the employees in other establishments or class of establishments, industrial, commercial, agriculture or otherwise. It is in the background of the laudable objectives of the Act, the Government while noticing that large number of educational institutions have come up and the low paid employees of such educational institutions are not being provided any social security benefit, the matter was considered by the Corporation under the Chairmanship of the Honble Minister for Labour, Government of India and the Corporation, therefore, took a decision that the scheme may be extended to the workers of educational institutions which include public, private, aided or partially aided institutions including those run by individuals, trustees, societies or other organizations. The object of the Act has to be advanced and for so doing, liberal approach has to be adopted. Even if technical defects may arise, which though in the present case are not noticed anywhere, those are to be ignored as by applying the provisions of the Act to the educational institutions, protection to the employees working therein will be ensured so as to accomplish the legislative intent of social security.
Viewed thus, for the stated reasons the judgment impugned being uninterferable is maintained, resultantly appeal is dismissed.
(Mohammad Yaqoob Mir) (Dr. Aftab H. Saikia)
Judge Chief Justice
Srinagar
24 .5.2010
Mohammad Altaf