JUDGMENT
1. Having regard to the nature of the points arising for our decision in this appeal, we heard the learned counsel appearing for both the parties on the merits of this appeal and are proceeding to decide the appeal at the stage of admission itself.
2. This is an appeal filed by the Employees’ Union of the employees employed in the Office of the National Textile Corporation (APKK & M) Limited, Bangalore (for short ‘the Employees’ Union), under Section 82(2) of the Employees’ State Insurance Act, 1948 (for short ‘the ESI Act’), against the order dated January 6, 1991 made by the Employees’ State Insurance Court (for short ‘the Insurance Court’) rejecting their ESI Application No. 3/1985 in which they had sought for a declaration that no contribution was liable to be paid to the Employees’ State Insurance Corporation (for short ‘the ESI Corporation’) under the ESI Act for the employees employed in the Office of the National Textile Corporation (APKK & M) Ltd., at Bangalore (for short ‘the N TC (APKK &M) Ltd’.).
3. The material facts, which have given rise to the filing of this appeal, may briefly be stated as follows :
The NTC (APKK & M) Ltd. has to be regarded as a subsidiary Corporation of National Textile Corporation by operation of Section 6(1) of the Sick Textile Undertakings Nationalisation Act, 1974 (for short ‘the Act’), is not disputed. The employees of the NTC ( APKK & M) Ltd., even though were erstwhile employees of the Sick Textiles Undertakings in the areas of Andhra Pradesh, Karnataka and Maharashtra, became the employees of the subsidiary Corporation–NTC (APKK & M) Ltd., by operation of Section 16 of the Act, is also not disputed. The NTC (APKK & M) Ltd., is a Corporation respecting which the ESI Act is operating ever since February 2, 1975, is, as well, not disputed. The ESI contribution respecting the employees of the Office of NTC (APKK & M) Ltd., was collected by the ESI Corporation along with such contribution collected respecting the employees of the NTC (APKK & M) Ltd. in its Factories or Mills till the year 1985, is admitted. Application respecting which the order under appeal is made, is said to have been filed by the Employees Union in the year 1985, when its application for claiming exemption under Sections 88, 90 and 91-A of the ESI Act respecting the office employees of the NTC (APKK & M) Ltd., made to the State Government through the ESI Corporation, was rejected by the latter itself. The prayers made in that application were :
(a) to declare the National Textile Corporation (APKK & M) Ltd., Bangalore, is not liable to be covered under the provisions of the Act (ESI Act).
(b) to declare that the National Textile Corporation (APKK & M) Ltd., being a subsidiary Corporation is not engaged in any work directly or indirectly connected with the “work of several mills nationalised and administered by the National Textile Corporation, New Delhi ; and
(c) to declare that the applicants are entitled for exemptions under Sections 88, 90 and 91-A of the Act (ESI Act).
4. The grant of the said prayers being opposed by the ESI Corporation by filing a statement of objections in that regard, the Insurance Court, on enquiry, having found that none of the said prayers made in the Employees’ Application could be granted, has rejected that application by its order dated January 6, 1991. It is that order, the validity of which is under challenge in this appeal filed by the Employees’ Union.
5. Points, which require to be answered by us in deciding this appeal having regard to the submission of learned counsel on both sides, made before us, admit of the following formulations :
“(1) Whether the employees of the NTC (APKK & M) Ltd., employed in its Administrative Office at Bangalore could be regarded as employees respecting whom the ESI contribution was not payable to the ESI Corporation; and
(2) Whether the ESI Court could have given a declaration that the employees of the NTC (APKK & M) Ltd., employed in its Office were entitled to the grant of exemption by the State Government under Sections 88, 90 and 91-A of the ESI Act.
6. We cannot help answering the said points in the negative and against the Employees’ Union for the reasons which we shall presently state in dealing with each of them.
Re. Point (1) :
It is the employees of the NTC (APPK & M) Ltd., who are employees in its Administrative Office, Bangalore, to attend to the administrative work connected with its Factories and Mills, is admitted. So, it cannot be said that the employees in the Administrative Office of the NTC(APKK & M) Ltd., are not employed for wages to do the work connected with the administration of its Mills or Factories. Moreover, when the establishment of the NTC(APKK & M) Ltd., with its Administrative Offices, Mills and Factories, admittedly lies within the area of Bangalore where the ESI Act is in force, the liability to pay ESI contribution to the ESI Corporation under the ESI Act by the NTC(APKK & M) Ltd., respecting the employees in its Administrative Office at Bangalore cannot be avoided if regard is had to the all embracing inclusive definition of employee in Clause (9) of Section 2 of the ESI Act which declares that the ’employee’ includes any person employed for wages on 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.
7. In Royal Talkies, Hyderabad v. Employees’ State Insurance Corporation, Hyderabad (1978-II-LLJ-390) where a question arose as to how the expression “in connection with the work of establishment” found in the definitive clause of ’employee’ in Section 2(9) of the Act has to be understood, it is observed by our Supreme Court, thus at pp. 394-395 :
” The expression” in connection with the work of an establishment” ropes in a wide variety of workmen who may not be employed in the establishment but may be engaged only in connection with the work of the establishment. Some nexus must exist between the establishment and the work of the employee but it may be a loose connection. “In connection with the work of an establishment” only postulates some connection between what the employee does and the work of the establishment. He may not do anything directly for the establishment; he may not do anything statutorily obligatory in the establishment; he may not even do anything which is primary or necessary for the survival or smooth running of the establishment or integral to the adventure. It is enough, if the employee does some work which is ancillary, incidental or has relevance to or link with the object of the establishment. Surely, an amenity or facility for the customers who frequent the establishment has connection with the work of the establishment. The question is not whether without that amenity or facility the establishment cannot be carried on but whether such amenity or facility, even peripheral may be, has not a link with the establishment……”
Hence, when it comes to the employees of the NIC (APKK & M) Ltd., in its Administrative Office, whose Employees’ Union is the appellant itself, it is undisputed that their wages are paid from the funds of the NTC(APKK & M) Ltd., which is also its employer. The National Textile Corporation at Delhi has admittedly nothing to do with these employees. If that be so, the employees of the NTC(APKK & M) Ltd., merely because they are working in its Administrative Office, cannot fall outside the definition of ’employee’ contained in the definitive Clause (9) of Section 2 of the Act, so as to regard them as employees of the NTC (APKK & M) Ltd., respecting whom no ESI contribution need be paid to the ESI Corporation. Hence, our answer to Point (1) is in the negative and against the appellant.
Re. point (2) :
Sections 88, 89, 90 and 91-A of the Act read as follows :
“88. Exemption of persons of class of persons.–The appropriate Government may, by notification in the Official Gazette and subject to such condition as it may deem fit to impose, exempt any persons or class of persons employed in any factory or establishment or class of factories or establishments to which this Act applies, from the operation of the Act.
89. Corporation to make representation.–No exemption shall be granted or renewed under Section 87 or Section 88, unless a reasonable opportunity has been given to the Corporation to make any representation it may wish to make, in regard to the proposal and such representation has been considered by the appropriate Government.
90. Exemption of factories or establishments belonging to Government or any local authority.–The appropriate Government may after consultation with the Corporation by notification in the Official Gazette and subject to such conditions as may be specified in the notification, exempt any factory or establishment belonging to the Government or any local authority from the operation of this Act, if the employees in any such factory or establishment are otherwise in receipt of benefits substantially similar or superior to the benefits provided under this Act.
91-A. Exemptions to be either prospective or retrospective.–Any notification granting exemption under Section 87, Section 88, Section 90 or Section 91 may be issued so as to take effect either prospectively or retrospectively on such date as may be specified therein”.
As could be seen from the above provisions of the ESI Act, it is the State Government which has the power to grant exemption to either a class of factories or establishments in a specified area. What is submitted by the learned counsel for the appellant before us is that a representation made by the appellant-Employees’ Union of the Office of the NTC(APKK & M) Ltd., to the ESI Corporation seeking grant of exemption from the State Government in the matter of payment of ESI contribution when was not forwarded by it to the State Government, but was rejected instead, the appellant-Employees’ Union has got a right under the Act to obtain a declaration from the Insurance Court that the employees of the NTC(APKK & M) Ltd., in its Administrative Office, are entitled to the grant of exemption as provided for in the aforesaid sections of the ESI Act. We are really unable to understand as to what could be the power of the Insurance Court to grant a declaration in the matter sought by the appellant-Employees’ Union when power of making such declaration was not vested in it under the ESI Act. The mere fact that the ESI Corporation instead of forwarding the Employees’ Union’s representation to the State Government for consideration of its claim for exemption has rejected it, will have the effect of vesting in the Insurance Court the power to declare that any particular establishment or any factory would be entitled for exemption under the provisions of the ESI Act. The declaration sought in that regard from the Insurance Court, we cannot help stating, is wholly misconceived. Therefore, we answer Point (2) also in the negative and against the Employees’ Union-the appellant.
8. As our answers to the said Points are in the negative and against the appellant, this appeal has to fail.
9. In the result, we dismiss this appeal, but without costs.