2009(6) ALL MR 903
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)
A.H. JOSHI, J.
The Regional Director, Employees State Insurance Corporation Vs. The Mormugao Handling Agents Association
Appeal Under E.S.I. No.9 of 2003
8th October, 2009
Petitioner Counsel: Mrs. A. A. AGNI
Respondent Counsel: Mr. D. B. AMBEKAR
Employees' State Insurance Act (1948), S.82 - Appeal - Interference - When in any law where an appeal on facts alone is available, interference even in such an appeal would not be permissible unless findings are shown to be erroneous due to any illegality - Held, just because another opinion on facts is possible, interference shall not be permissible. 2001 SCC (L&S) 1121 and 2002 SCC (L&S) 1037 - Ref. to. (Para 32)
Employees State Insurance Corporation Vs. M/s. Hotel Kalpaka International, AIR 1993 SC 1530 [Para 15]
Employees State Insurance Corporation Vs. Harrison Malayalam Pvt. Ltd., (1993)4 SCC 361 [Para 15]
Employees State Insurance Corporation Vs. R. K. Swamy, AIR 1994 SC 1154 [Para 15]
M/s. Cochin Shipping Co. Vs. E.S.I. Corporation., AIR 1993 SC 252 [Para 15]
Kirloskar Consultants Ltd. Vs. Employees State Insurance Corporation, 2001(1) ALL MR 529 (S.C.)=(2001)1 SCC 57 [Para 15]
International Airport Authority of India Vs. International Air Cargo Worker's Union, 2009 AIR SCW 4926 [Para 15]
Vizagapatam Dock Labour Board Vs. Stevedores Association, Vishakhapatnam, (1970)2 SCR 303 [Para 17,26,34]
The Ballarpur Collieries Co. Vs. State Industrial Court, Nagpur, (1966)2 SCR 590 [Para 17]
State Vs. Gopichand Fattumal, AIR 1961 Bom 282 [Para 17]
Radha Shyam Bagaria Vs. Union of India, Civil Rule No.16923(W)/1975 Dt.21.6.1979 [Para 17]
Goa Sampling Employees' Association Vs. General Superintendence Co. of India Pvt. Ltd., AIR 1985 SC 357 [Para 17]
Madras Dock Labour Board Vs. Government of Tamil Nadu, 1997(2) L.L.N. 367 [Para 17]
Employees' State Insurance Corporation, Hyderabad Vs. Brooke Bond (India), Ltd., AO Nos.530, 531, 532, 558 & 559/1976 Dt.9.9.1977 [Para 17]
Gurdev Kaur Vs. Kaki, 2006(5) ALL MR 140=(2007)1 SCC 546 [Para 17]
Rupendra Swain Vs. Calcutta Dock Labour Board, 1969 Lab.I.C. 890 [Para 17]
Steel Authority of India Ltd. Vs. National Union Waterfront Workers, 2001 SCC (L&S) 1121 [Para 17]
Mahatma Phule Agricultural University Vs. Nasik Zilla Shet Kamgar Union, 2001 SCC (L&S) 1180 [Para 17]
Bangalore Water Supply & Sewerage Board Vs. A. Rajappa, 1978 SCC (L&S) 215 [Para 17]
Union of India Vs. Gopal Chandra Misra, 1978 SCC (L&S) 303 [Para 17]
State of U.P. Vs. Jai Bir Singh, 2005 SCC (L&S) 642 [Para 17]
Regional Director, ESI Corporation, Kerala Vs. Metropolitan Engineering Co. Ltd., Kerala., 2002 SCC (L&S) 1037 [Para 17]
JUDGMENT:- This is an appeal by the Regional Director, Employees State Insurance Corporation herein after referred for the sake of brevity as the 'Corporation'. The respondent is the Mormugao Handling Agents Association, herein after referred for the sake of brevity as the 'Association'.
3. An appeal under Section 82 of Employees State Insurance Act lies only on substantial question of law. Record shows that any substantial question of law was not framed at the time of admission. In the midst of submissions herein, learned advocate for the appellant was called to make submissions on the point of substantial questions of law, as absence of framing substantial question of law, it would not be permissible to hear the appeal.
(1) Is the Government of the State of Goa the appropriate Government as regards the workmen sent for work of loading and unloading at the port by respondent- Mormugao Handling Agents Association?
(2) Is the status of respondent's association that of an employer or it simply works as an intermidiatery agency?
6. Learned Advocate for the respondent concedes that no fresh notice to the respondent would be required as the dissolved society is already represented through authorised person and he would proceed and argue the case on the basis of substantial question of law framed by this Court today.
(1) There exist a statutory body created under the Act namely The Dock Workers Regulation of Employees Act, 1948 enacted by the parliament.
(2) The conditions of service of the Dock workers are governed by a scheme framed under the said Act.
(3) Shore handling Agents-Association is registered under Societies Registration Act.
(4) According to the respondents it operates like an employment exchange and it provides the substitute labourers when the required number of workmen necessary for handling particular cargo in terms of the man power prescribed by the Port Trust is, unavailable.
(5) About 500 workmen who have been working as substitute workers are enlisted commonly denoted as "mini pool", and they are sent for actual working at the Port Trust for loading/unloading of the cargo at the indent of the stevedores.
(6) Individual members of the Association/stevedores pay to the Port Trust the wage component as per the prescribed norms.
(7) Association receives money towards wages of workers so sent from stevedores at the Port Trust, and the association then does the disbursement of actual wages and other payments to the employees so sent.
(8) Respondent's claim that it's status is barely alike employment exchange is disputed by the appellant, and according to appellant respondent association is an employer and is liable to pay.
9. The provisions of the E.S.I. Act were made applicable to the State of Goa in the year 1975 to the factories employing 20 and more persons for 12 months preceding thereto. By Notification dated 21.6.1977, the provisions of the Act were made applicable to various other 'establishments', such as shops and according to appellant present respondent's activity "mini pool" falls within the term shop as understood for ESI Act.
a) The Trial Court ought to have seen that the establishment of the respondent could be clearly included in the definition of a shop and even where services are lent on hire/sold, the place where such an exercise is conducted would fit in the definition of shop.
b) The Apex Court has interpreted the term shop to include any place where services are sold on retail basis. There was absolutely nothing on record to demonstrate that the employees of the respondent were covered under the Dock Labour Act and there was no evidence led by the respondents to demonstrate that the facilities as available to the Dock Labour workers were extended to the employees who were doing the work of handling of cargo.
c) Neither it was the contention of the respondents, nor the witness Smt. Pereira had deposed that any facilities, which are available to the Dock Workers, are being extended to the employees who are the handlers.
d) It was also not the case of the respondent, that the wages of the employees are paid by the private businessman or that the hiring of service is done without consideration qua the association.
e) If the contention of the respondent were accepted, the employees would find themselves neither getting facilities under the Dock Labour Act, nor under the Employees State Insurance Act. Neither they would be employees of private employers, nor they would be employees of the respondent association. Their situation, therefore, would be in a limbo.
f) The Trial Court ought to have seen that except for a bare statement of Smt. Pereira there was nothing to state that the association was a charitable institution.
g) The Trial Court proceeds with the matter as if the onus was on the present appellant to explain and prove about the nature of the work of the applicant or of the employees.
h) The application under section 75 was filed by the present respondent, disputing the coverage under the ESI Act and hence it was for the respondent to prove by leading cogent evidence about the nature of their work or the fact that the employees enlisted by them and whom they refer to as listed employees were not their employees and it was for the respondents to explain whose employees they were.
i) The Trial Court has misread the law laid down in M/s Hindu Jea Band case and the latter judgments of the Apex Court.
1. Employees State Insurance Corporation Vs. M/s. Hotel Kalpaka International, AIR 1993 SC 1530.
Even if the employer closes down the undertaking, the liability does not come to an end and the same can be enclosed.
2. Employees State Insurance Corporation Vs. Harrison Malayalam Pvt. Ltd., (1993)4 SCC 361.
Principal employer is liable to make the payment of contribution irrespective of the fact that workmen were employed through contractor. Though in the facts of the case the work was done on the port by the stevedores, as according to the corporation workmen were employed by respondent association.
3. Employees State Insurance Corporation Vs. R. K. Swamy and ors., AIR 1994 SC 1154.
The definition of the term 'Shop' as connoted by Section 1(5) of the Employees State Insurance Act is wide enough and it is not essentially shop in normal connotation. Therefore, the case applies to the respondent.
4. M/s. Cochin Shipping Co. Vs. E.S.I. Corporation., AIR 1993 SC 252.
The Employees State Insurance Act being welfare legislature is to be legally construed to cover large number of employees, therefore, the definition of shop under Section 1(5) is to be liberally construed.
5. Kirloskar Consultants Ltd. Vs. Employees State Insurance Corporation, (2001)1 SCC 57 : [2001(1) ALL MR 529 (S.C.)].
Same preposition as before.
6. M/s. Italab (Goa) Pvt. Ltd. Vs. Deputy Regional Director, Appeal under ESI Act No.1/2001.
Chemists who are working on the port are covered by Employees State Insurance Act, though they are working on the port.
7. International Airport Authority of India Vs. International Air Cargo Worker's Union & anr., 2009 AIR SCW 4926.
The employees of contractor are always the employees of the contractor until absorbed with principal employer, and therefore status of the association is like a contractor.
(a) The respondent association was an intermediatory, was neither a contractor or a principal employer.
(b) The workers sent by the association to work for stevedores are doing the same work which registered dock workers do, and just because those are sent by association, it does not and cannot become an employer.
(c) After allotment, the association has no role to play as regards the work to be got done.
(d) The association simply allots the workmen and disburses the wages and other moneys to which workers are entitled.
(e) For all purposes the workers sent for work on the port are "Dock Workers" so defined under relevant law, and as held in Vizagapattanam case (referred in para 17) their employer is stevedore concerned.
(f) State of Goa is not the appropriate Government by virtue of very fact of the workers being "Dock Workers".
Various submissions are advanced, and furnished in the notes of propositions, however each point and proposition need not be mentioned.
1. Vizagapatam Dock Labour Board Vs. Stevedores Association, Vishakhapatnam & Ors., (1970) 2 S.C.R. 303.
2. M/s. Serajuddin & Co. Vs Their Workmen, (sic) 3 S.C.R. 935.
3. The Ballarpur Collieries Co. Vs. State Industrial Court, Nagpur & Ors., (1966)2 S.C.R. 590.
4. State Vs. Gopichand Fattumal & ors. AIR 1961 Bombay 282.
5. Radha Shyam Bagaria Vs. Union of India & ors. (Civil Rule No.16923 (W) of 1975) dated 21.6.1979.
6. Goa Sampling Employees' Association Vs. General Superintendence Co. of India Pvt. Ltd. & ors., AIR 1985 SC 357.
7. Madras Dock Labour Board Vs. Government of Tamil Nadu & anr., 1997(2) L.L.N. 367.
8. Employees' State Insurance Corporation, Hyderabad Vs. Brooke Bond (India), Ltd. & ors., AO Nos. 530, 531, 532, 558 & 559 of 1976 dt.9.9.1977.
9. Employees State Insurance Corporation, Hyderabad Vs. New Empire Tailors & ors. CMA Nos.142/1980.
10. Gurdev Kaur & ors. Vs. Kaki & ors. (2007)1 SCC 546 : [2006(5) ALL MR (S.C.) 140].
11. Dainik Deshdoot & Ors. Vs. Employees' State Insurance Corporation & Ors. L.P.A. No. 97/1985.
12. Rupendra Swain Vs. Calcutta Dock Labour Board, 1969 Lab.I.C. 890.
13. Steel Authority of India Ltd. Vs. National Union Waterfront Workers & ors. 2001 SCC (L&S) 1121.
14. Mahatma Phule Agricultural University & ors. Nasik Zilla Shet Kamgar Union & ors. 2001 SCC (L&S) 1180.
15. Bangalore Water Supply & Sewerage Board Vs. A. Rajappa & ors., C.A.Nos. 1978 SCC (L&S) 215.
16. Union of India & ors. Vs. Gopal Chandra Misra & ors. 1978 SCC (L&S) 303.
17. State of U.P. Vs. Jai Bir Singh, 2005 SCC (L&S) 642.
18. Regional Director, ESI Corporation Vs. Sakthi Tiles, 1988 (2) K.L.T. 280.
19. Regional Director, ESI Corporation, Kerala Vs. Metropolitan Engineering Co. Ltd., Kerala., 2002 SCC (L&S) 1037.
1) Central Government shall be appropriate government for the activities or industries run under the control of Central Government in the case of major ports, mines etc.
2) The work for loading and unloading though the respondent do the same work which registered workers do, by filling in the deficiency of manpower of registered workers, ipso facto come within the compass of definition of the term "Dock Worker" and in turn the appropriate government for them is the Central Government.
3) The workers working in the premises of the dock of major port and undertaking the activities to which the scheme framed by the board applies are the Dock workers and their employees are the stevedores.
4) Once the Central Government is the appropriate Government, the notification by State Government is without authority and power and therefore the demand raised by the appellant is untenable.
5) In the case of M/s Italab (Goa) Pvt. Ltd. Vs. Deputy Regional Director, the appeal Under ESI Act No.1/2001 relied upon by the appellant has no application to the present case since the workers referred to in said case had no nexus with the work which Dock workers do and their job was totally outside the job covered by the scheme framed for Dock Workers.
6) The respondent who is a charitable trust is not a association of employers and does not have its own activity whatsoever.
a) The Central Government was the appropriated Government?
b) Is the appellant before it (association) - present respondent, the employer?
These are very questions which this Court too is considering.
23. The witness for Association - its authorised representative, Ms. Madelina Pereira examined herself in support of association's plea. Her statement has been referred to by learned ESI Court in para 35, which is quoted for ready reference as follows:-
"..................................... Admittedly, and as can be seen from the only evidence led on behalf of the applicant, the so called employees of the applicant were assigned to do the work of the registered employers under the scheme as and when there were not enough workers to do the same available under the Scheme.
The applicant itself had no work to be done with in connection with its existence and whatever amounts of wages were collected from the registered employers were in turn distributed among the so-called employees as per their work............................"
(Quoted from page 22 of paper book)
(a) It has no burden to prove any factual aspect.
(b) The challenge was raised by the association and it was to prove as to who was the employer.
(c) The record of association sufficiently proved that it was the employer.
26. The learned ESI Judge has thereafter analised provisions of law as to the status of employers employee relationship in the light of reported judgment in the case of - Vizagapatam Dock Labour Board Vs. Stevedores Association, (1970)2 SCR 303. It is seen that in Vizagapatanam supra the Law on this point has been settled, and it has been laid down as follows:-
"....................................... From the provisions of the Dock Workers (Regulation of Employment) Act, 1948 and the Vizagapatnam Dock Workers (Regulation of Employment) scheme, it is evident that the Board is a statutory body charged with the duty of administering the scheme, the object of which is to ensure that greater regularity of employment for dock workers are available for the efficient performance of dock work.
The Board is an autonomous body, competent to determine and prescribe the wages, allowances and other conditions of service of the dock workers. The purport of the scheme is that the entire body of workers should be under the control and supervision of the Board.
The registered employers are allocated monthly workers by the Administrative Body and the Administrative Body supplies whenever necessary the labour force to the stevedores from the Reserve Pool. The workmen who are allotted to the registered employers are to do the work under the control and supervision of the registered employers and to act under their directions.
The registered employers pay the wages due to the workers to the Administrative Body and the latter, in turn, as agent of the registered employers, pay them over to the concerned workmen.
The registered employer to whom the labour force is allotted by the Board is the employer whose work they do.
The functions of the board such as recruitment and registration of the dock labour force, fixation of wages and dearness allowance, payment of workmen's compensation, taking of disciplinary action and prohibition against employment of workers who were not registered with the Board do not establish a relationship of employer and employee between the Board and the dock labour.
Further, the Hon'ble Supreme Court held that the Board was functioning under the Act and the Scheme cannot be said to carry on any industry so as to attract the provisions of the Industrial Disputes Act."
(Quoted from page 23 of paper book and sub-paragraphing is done for convenience and emphasis is supplied).
27. In relation to the aspect of appropriate government the learned ESI Court referring to the provisions of Dock Workers (Regulation of Employment) Act, 1948 and Vizagapatanam supra, held that considering the job / activities under taken by the workers, they fall in the definition of dock workers.
28. Admittedly, the services of workers sent by Association are used for the same job which "registered workers" are doing work which "Registered Dock Workers" do for "Registered Employers" i.e. the stevedores under the scheme framed under said central legislation.
(1) That the fact finding done by ESI Court to be erroneous showing it to be so, with reference to evidence on record or being contrary to law;
(2) Conclusion reached by ESI Court that the nature of work done by casual workers allotted by the respondent association undertake/do the same work which registered workers do, to be erroneous;
31. So long it is not shown that the findings under challenge in present appeal under Section 82 of ESI Act, are contrary to law or facts on record or otherwise perverse, any interference is simply impermissible.
32. When in any law where an appeal on facts alone is available, interference even in such an appeal would not be permissible unless findings are shown to be erroneous due to any illegality. Just because another opinion on facts is possible, interference shall not be permissible.
33. Present appeal can be entertained only on substantial questions of law. It has to be shown that the order impugned can be reversed on answering to the substantial questions of law in favour of the appellant.
a) Substantial Question of Law No. 1:- Answer:- That the appropriate Government for the workers discharging the work which is defined as work of the dock workers is - Central Government, since the workers allotted to do work for registered employers at the dock do the same work which registered dock workers do.
b) Substantial Question of Law No. 2:- Answer:- The respondent - association has no activity of its own and the work which the workers are allotted by it undertake as the work of stevedores and these workers do the same work which other dock labourers do, by no stretch it can be held that these workers are employed by the respondent association.
In the circumstances, parties shall bear own costs.