Rajasthan High Court - Jaipur
E.S.I. Corporation vs Jodhpur Coffee House on 22 September, 1986
Equivalent citations: 1987(2)WLN520
JUDGMENT Guman Mal Lodha, J.
1. Both these appeals are disposed of by a common order as prayed by the learned Counsel for the parties. The simple reason for this prayer is that the question on which the entire debate had centered round is whether once the State Government hart issued a notification classifying the establishments in three categories for the purpose of application of the Employees State Insurance Act, it is permissible to hold that particular establishment can fall in more than once category of this notification.
2. The precise question to make it more clear is that whether a case of restaurant which normally covered by Clause (iii) in terms speaks about hotel and restaurants can also be coveted by Clause (i) and (ii) of this notification. Mr. Maloo and Mr. Jain appearing for the two restaurants Proprietors have argued that once the State Government has classified the establishments in the three categories and so far as restaurants are concerned, categorised them in Clause (iii) and for the purposes of treating therein as an establishment for application of the ESI Act kept it a condition precedent that there must be 20 or more persons employed in it, then it is not permissible to apply Clause (i) and (ii) to restaurants. Mr. J.P. Gupta, learned Counsel for the Corporation on the contrary submitted that a particular establishment may fall in more than one category because it may be an establishment, which can be covered by Clause (iii) and it can be covered by Clause (i) and (ii) or even by the clause defining the factory under the ESI Act.
3. I have given my thoughtful consideration to the rival contentions of the learned Counsel for the parties.
4. In the present case it appears that both restaurants Kalinga and Coffee House at Jodhpur had employed less than 20 persons during the particular year for which the demand of contribution had been made by the Corporation. That being so it could not fall under Clause (iii) because Clause (iii) of the notification expressly mentions that the establishment must have 20 or more persons employed for wages on any date of the preceding 12 months. Then it classifies by mentioning names of types of establishment, they are hotels, restaurants, shops, road Motor transport establishments and cinema. Now normally if 20 cr more parsons are employed in a restaurant, then irrespective of the fact, whether it uses power or not and irrespective of the fact whether it is involved in manufacturing process or not it would be covered by Clause (iii).
5. The question is what is to happen where the number of employees is less than 20 as has happened in the present cases. In my opinion the case can squarely be covered by Clause (i) in case it is found even though the persons are employed less than 20 but they were 10 or more and further that in the restaurants in which they are working the manufacturing process was being carried on with the aid of power. Once it is established that the power is being used for manufacturing the various sweet or the preparations for a serving the customers in restaurants then Clause (i) would apply.
6. It is not permissible to exclude hotel and restaurants from the application of Clause (ii) simply on the ground that Clause (iii) is a specific express particular provision or clause meant for restaurant.
7. There is no rule of law which can be termed as universally applicable either on account of the principles of statute or on account of any precedent of judicial recognition on account of which if a particular category is not covered by a class of establishments whose names are mentioned then that establishment cannot fall under other category. To argue or to expect a decision that if a hotel or establishment has been mentioned in Clause (iii) by na me then hotel or restaurant can only be covered by the requirements of 20 on more persons employed and the moment there are 19 persons even it manufacturing process is there and power is being used then Clause (i) would not apply, is against law.
8. I am of the opinion that clauses (i) and (ii) and Clause (iii) of this notification and so also the definition of factory as given in the E.S.I. Act they are all separate independent and each one can apply. There is no bar for overlapping also. There is no prohibition under any law. There is no such fundamental requirement any law that only one particular class of notification should apply to one particular class of establishment and if it fails to do so then it cannot be taken into other category.
9. I am therefore, convinced that the restaurants which are the subject matter of controversy in these two appeals would be covered by Clause (i) also if the number is less than 20 but if it is proved that there is manufacturing process going on and the power being used.
10. For this purpose the parties would be allowed to produce evidence before the E.S.I. Court because the E.S.I. Court has rejected the claim of the Corporation on a preliminary ground that once Clause (iii) by names mentions restaurants then the question whether the restaurants can be covered by the E.S.I. Act or not would be decided on the text that whether there are 20 or more persons as required by Clause (iii) Once it fails to come in Clause (iii) then no other clause can be applied, which is not acceptable to this court. In my opinion the provisions of the E.S.I. Act which are meant for providing benefits to the workers who are employed in various establishments for the purposes of making provision for the illness or accident or maternity or death in which both the employee and employer contribute for the social welfare security of the workmen should be interpreted in a very beneficial manner for both and for all it would be in consonance with the preamble of the Constitution where the social justice has been carved out and engraved in the very preamble is that in any of the category the establishment is brought then the E.S.I. Act would apply.
11. I would therefore, accept both these appeals and remit the case to the E.S.I. Court for permitting the parties to produce their evidence and then decide whether on the principles of law which have been laid down here in before any of the two or both of them would be covered by the E.S.I. Act and if so for which particular year. The parties would bear their own costs.