JUDGMENT
1. The only question which arises in this civil miscellaneous appeal is whether the respondent is an “establishment” within the meaning of Section 1(5) read with Section 2(12) of the Employees’ State Insurance Act, for short “the Act”.
2. The respondent is engaged in printing and dyeing of sarees. The premises where the manufacturing process is being carried on has an overhead tank. Water is pumped into the tank with half Horse-Power electric motor. On survey, the appellant-Corporation sent to the respondent a communication dated 6th May 1983 stating that the petitioner-factory/establishment is covered by the Act with effect from 11th May 1982. That was challenged by the respondent before the Employees’ State Insurance Court in E.S.I. Case No. 46/83. By its judgment dated February 1, 1984 the E.S.I. Court held that though the number of persons were ten, the manufacturing process was not being carried on with the aid of power. In that view of the matter, it held that the coverage of the respondent establishment was invalid. It is the correctness of this order that is assailed in this civil miscellaneous appeal.
3. As a follow up action of the Third Labour Conference, a scheme was drawn for taking up social security measures in 1942, which culminated in the enactment of the Employees’ State Insurance Act, 1948 (for short ‘the Act’). The Act has been amended in 1951, 1966 and 1975. The Act enjoins insurance of all the employees in the factories or establishments to which it applies for providing sickness benefit, maternity benefit, disablement benefit, dependents’ benefit, medical benefit and funeral benefit as social security measures. These benefits are enumerated in Section 46 of the Act. The insurance contributions have to be made both by the employers as well as by the employees governed by the enactment. Though the Act was passed by Dominion Legislature in per-Constitution era, it has to be interpreted in the light of that guiding star – the Constitution, the Constitutional ethos being to secure social justice which cannot be achieved adequately without proper implementation of social security measures. The provisions of the Act have therefore, to be given liberal interpretation.
4. By sub-section (4) of Section 1, the Act was in the first place, applied to all factories including the factories belonging to the government and other seasonal factories. The appropriate Government is empowered by the Act to extend the provisions of the Act or any one of them to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise, in consultation with the Corporation, with the approval of the Central Government after giving six months notice of its intention of so doing by notification in the Official Gazette. It is the admitted case that pursuant to the notification issued by the State Government, establishments/factories where manufacturing process is carried on with the help of ten persons or more with the aid of power is covered by the Act. The E.S.I. Court found that more than ten persons are employed in the respondent-establishment. This finding is not questioned before me. The only controversy which remains to be resolved is whether the manufacturing process is being carried on with the aid of power.
5. The phrase “manufacturing process” has not been defined in the Act. Section 2(12) of the Act says that the expressions “manufacturing process” and “power” shall have the meaning respectively assigned to them in the Factories Act, 1948. Section 2(k) of the Factories Act defines “manufacturing process” in the following terms :
“(i) any process for making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal; or
(ii) pumping oil, water sewage, or any other substance; or
(iii) generating, transforming or transmitting power; or
(iv) composing types for printing, printing by letter press, lithography, photogravure or other similar process or book binding; or
(v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels; or
(vi) preserving or storing any article in cold storage.”
Section 2(g) of the Factories Act defines “power” to mean “electrical energy, or any other form of energy which is mechanically transmitted and is not generated by human or animal agency;”. If Section 2(g) is read with Section 2(k) of the Factories Act, it becomes evident that pumping of water with the aid of electrical energy for washing and cleaning amounts to carrying on “manufacturing process” with the aid of power.
6. In the instant case, the manufacturing process of the respondent comprise of printing, dyeing and soaking of sarees in water. For that purpose, water drawn from over-head tank where it is pumped with the help of electric motor. That electric motor is used for pumping water to over-head tank is not in dispute. What is contended is that the water could as well have been used directly from a water tank on the ground and merely because the water is stored in the overhead tank for which purpose electric motor is used, it cannot be said that manufacturing process is carried on with the aid of power. I am afraid, I cannot accede to this submission. That a thing could have been done in some other way, does not take away the effect or consequence of it being done in a particular way. To the question whether power is used for pumping the water to the overhead tank, it is no answer to say that water could have been used directly or from ground water tank without the help of overhead water tank. The fact remains that water is being used from overhead tank which is filled with the help of electric motor. While the component of the manufacturing process of the respondent is soaking of sarees in water which is pumped in to over head tank with the aid of electric motor, it has to be held that the manufacturing process is carried with the aid of power.
7. The learned counsel for the respondent relies on a decision of this Court in M/s. Gantyal Handloom Industries Hyderabad v. E.S.I. Corporation Hyderabad 1976 (1) (HC). APLJ. Short Notes, 27, to support his contention that use of water from overhead tank where it is pumped by electric motor, does not amount to carrying on manufacturing process with the aid of power. In that case, a learned single judge of our High Court observed that from the overhead tank water was being used for domestic and other purpose and that water was also being used for soaking the sarees and held that the aid of the power was not involved in the manufacturing process. Having regard to the facts of that case, that water was not pumped for purposes of carrying on the manufacturing process, that is, washing and soaking of the printed sarees but for domestic purposes, the learned single Judge held that there was no aid of power in the manufacturing process. He did not mean to lay down a principal of law of that where water is pumped up into the overhead tank with electric motor, no aid of power is involved. Therefore, the judgment has to be confined to the facts of that case.
8. In the instant case, the E.S.I. Court found that the water is essential for printing, dyeing and soaking of sarees and is being secured by using power and if soaking in the water is taken as part of the manufacturing process, then it is carried on by the petitioner with the aid of power. But having regard to the judgment in M/s. Gantayal Handloom Industries Hyderabad v. E.S.I. Corporation Hyderabad (supra), it held that using of the water from the overhead tank which is filled with pumpset with the aid of power, cannot be considered as use of power in the manufacturing process
9. In view of the above discussion, I am clearly of the opinion that the water which is used in the manufacturing process for washing and soaking of saries, is stored in the overhead tank with the aid of power and, therefore, the manufacturing process is being carried on with the aid of power.
10. Sri Satyanarayana, the learned counsel for the respondent, submits that assessment under Section 45-A of the Act has been made and in view of the order of the E.S.I. Court holding that the respondent establishment is not covered by the Act, the same was not challenged in appeal and prays for granting some time to file against the order of assessment. In view of this judgment holding that the respondent establishment is covered by the Act, it is open to the respondent to challenge the order of assessment before the appropriate authority within three months from today.
11. In the result, the order under appeal is set aside and the civil miscellaneous appeal is allowed but, in the circumstances of the case, without costs.