Supreme Court of India
BOMBAY ANAND BHAVAN RESTAURANTversusTHE DEPUTY DIRECTOR, ESI CORPORATION AND ANR.
- Citation
- 2009 INSC 1102
- Decided
- 2 September 2009
- Disposal
- Dismissed
- Bench
- MARKANDEY KATJU
Holding
The use of LPG gas is mechanically transmitted power, making the appellants' premises factories, so the Employees' State Insurance Act, 1948 applies to them.
Summary
Bombay Anand Bhavan Restaurant, a proprietorship engaged in preparing sweets, savories, coffee and tea, employed more than ten workers and used LPG gas to operate a bottle cooler and coffee roaster. The Deputy Director of the Employees' State Insurance (ESI) Corporation directed the restaurant to pay contributions under the Employees' State Insurance Act, 1948, treating it as a factory because it used power. The restaurant challenged the direction, arguing that LPG is not "power" within the meaning of the Act. The Supreme Court examined the definitions of "factory" and "power" in the Factories Act, 1948 and held that power includes any mechanically transmitted energy, and that LPG, transmitted via a cylinder and valve, qualifies as such. Consequently, the restaurant's establishment is a factory and falls within the ambit of the ESI Act. The Court dismissed the appeals.
Issues considered
- Whether the appellants' establishment is covered by the Employees' State Insurance Act, 1948.
- Whether the use of LPG gas constitutes "power" as defined under the Factories Act, 1948 and thus brings the establishment within the definition of a factory.
Legislation cited
- Employees' State Insurance Act, 1948s. 2(12), s. 2(15c), s. 45-A, s. 75
- Factories Act, 1948s. 2(g), s. 2(i), s. 2(j), s. 2(k)
Subjects
Employees' State Insurance ActFactories ActLPG gasPower definitionManufacturing processFactory definitionSocial security legislation
Judgment
[2009) 13 (ADDL.) S.C.R. 1139
BOMBAY ANAND BHAVAN RESTAURANT A
~ ~ v.
THE DEPUTY DIRECTOR, ESI CORPORATION AND ANR.
(Civil Appeal No. 5640 of 2004)
SEPTEMBER 2, 2009
B
[MARKANDEY KATJU AND H.L. DATTU, JJ.]
,,. Employees' State Insurance Act, 1948- s. 2(12), 2(15c)
~ - Establishments engaged in preparing sweets and savories
tea and other beverages - Use of LPG gas for operating bottle c
cooler and coffee roaster - 10 or more persons employed -
Applicability of ES/ Act to the establishments - Held: ES/ Act
applies to the said establishments - Said establishmfJnt
involves manufacturing process with the aid of LPG gas, which
is mechanically transmitted and can be termed as power - D
,,J_
Hence, establishment termed as factories - Order of High
..... Court that the said establishments liable to pay contributioh
under ES/ Act, not interfered with - Factories Act, 1948 - s.
2(g), (k), (j) and (i).
Appellant-proprietorship concern in the first appeal E
is engaged in the activity of making and selling coffee,
tea and other beverages, and also sweets and savories.
+ U purchased a bottle cooler and also a coffee roaster and
is using LPG gas for operating the same. The Deputy
;,
Director of ESI Corporation directed the appellant to pay F
contribution under the Employees' State Insurance Act,
1948 since it had employed 10 or more employees and
was using LPG gas for the coffee roasting machine and
the bottle cooler. Aggrieved, appellant challenged the
same. Both the tribunal and the High Court dismissed the G
matters. Appellants in the other appeal is engaged in
i manufacturing sweets and savories by using cooking
~-
gas and the number of employees employed by them was
not more than 17. They were also unsuccessful before
1139 H
1140 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A all the forums.
The question which arose for consideration in these
appeals is whether the establishment of the appellants'
is covered under the provisions of the Employees' State
Insurance Act, 1948 and whether the use of LPG gas is
8 use of power as defined under the Act.
Dismissing the appeals, the Court
HELD: 1.1 Both the appellants prepare sweets,
C savories and other beverages in their establishments.
Cooking and preparing food items qualifies as
manufacturing process. Hence, it is beyond doubt that
there is manufacturing process involved in the
establishment of the appellants. [Para 23] [1150-E-G]
D ES/ v. Spencer and Co. (1978) L.l.C 1759; Poona
Industrial Hotel Limited v. I. C. Sarin (1980) Ll.C. 106,
referred to.
1.2. Section 2(g) of the ~actories Act, 1948 defines
E the meaning of the expression 'power'. The definition of
'power' is 'in two parts. Firstly, it is electrical energy, and
includes any other form of energy which is mechanically
transmitted. The second part provides for exclusion from
the definition of power, i.e., it does not include power
F generated by human or animal energy. The definition is
wide enough to include all forms of energy which is
mechanically transmitted. [Paras 20 and 25] [1149-C-D;
1151-8-C]
1.3. Mechanical transmission is as opposed to
G manual transmission where human agency is involved in
the process of transmission. The word 'Machinery' is
defined under section 2(j) of the Factories Act. 'Machinery' )-
-;
includes prime movers, transmission machinery and all
other appliances whereby power is generated,
H transformed, transmitted or applied. The expression
BOMBAY ANAND BHAVAN RESTAURANT v. DEPUTY1141
DIRECTOR, ESI CORPORATION
'prime mover' means any engine, motor or other A
~ ~ appliances which generates or otherwise provides power
and the definition of transmission machinery under
section 2(i) of the Factories Act means any shaft, wheel
drum, pulley, system of pulleys, coupling clutch, driving
belt or other appliance or device by which the motion of B
a prime mover is transmitted to or received by any
machinery or appliance. [Para 30) [1152-G-H; 1153-A-C]
'r Collins Discovery Encyclopedia, 2005 (1st ed.), referred
t
to.
c
1.4. LPG is stored in a cylinder fitted with a tube.
Upon careful perusal of the definitions, it is clear that an
LPG cylinder would qualify as an appliance which
provides power. This power is transmitted by a tube
which upon careful reading of the definition qualifies as D
transmission machinery as it is an appliance or device by
which the motion of a primary mover is transmitted. In fact
an analogy between the transmission of electricity and
transmission of LPG can be drawn. The movement or
transfer of electrical energy takes place over an E
interconnected group of lines and associated equipment
between points of supply and points at which it is
transformed for delivery to consumers or is delivered to
other electric systems. Transmission is considered to end
-· when the energy is transformed for distribution to the F
consumer. In many countries transmission of LPG also
takes place in a similar manner from a large fixed tank. ,
In case of LPG stored in a cylinder the mechanism of
transmission is essentially the same as the gas travels
from the cylinder where it is stored to the gas cooking
G
stove. While transmission of electricity involves a switch,
transmission of LPG involves a valve mechanism or a
i regulator to ensure smooth flow. Hence, LPG is a source
of energy which is mechanically transmitted by way of the
H
1142 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
"
A tube attached to the machinery. The use of LPG satisfies
the definition of power as it is mechanically transmitted -+ I
and is not something generated by human or animal
agency. [Paras 31 and 32] [1153-C-H; 1154-A]
1.5. The establishment of the appellants involves a
B t-
manufacturing process with the aid of LPG gas, which ~
can now be termed as power, and as such the
establishment of the appellants can be termed as
'i.
factories, and therefore, the Employees' State Insurance
~
Act, 1948 will apply to these establishments. There are no
c grounds to interfere with the impugned judgment of the
High Court. [Para 33] [1154-B]
ES/ Corporation, Hyderabad v. Jayalakshmi Cotton and
Oil Products (P) Ltd. (1980) Lab IC 1078; ES/ Corpn. v. Bhagat
D Ram and Sons and Anr., 2001 (2) Labour Laws Journal
,\.....
9.73; Corporation of Calcutta v. Chairman of Cossipore and
Chitpore Municipality AIR 1922 PC 27; CIT v. Mir Mohammed ,..
Ali AIR 1964 SC 1693; The Workmen of Mis. Firestone Tyre ;c
and Rubber Co. of India (Pvt.) Ltd. v. The Management and
E Ors. (1973) 1 SCC 813; G. Giriyappa and Ors. v. Anantharai
L. Parekh and Anr. (1994) 3 sec 489, referred to.
New Encyclopaedia Britannica, 15th Edition, referred to.
Case Law Reference: +
F
2001 (2) Labour Laws Journal 973 referred to. Para
9
"
AIR 1922 PC 27 Referred to. Para 12
G AIR 1964 SC 1693 Referred to. Para 12 . ·
(1973). 1 sec 813 Referred to. Para 12
y
(1994) 3 sec 489 Referred to. Para 12 -1
(1980) Lab IC 1078 Referred to. Para 16
H
BOMBAY-A.NANO BHAVAN(.RESTAURANT v.' bEPUTY1"f43
DIRECTOR, ESI CORPORATION
" ~ : (1978-) LtC 1759' ':. 1..•-1 Refe'rred. to:.
· "'-Para '2·3' A
~t • r:: ,~, ~ • , - : ,• '! , ,,.
._,,' \l lJ"" c,
:._"]c,,.1 ! ~a.... • ,., t - •• I ,.- C
:.. <; .(1980h"L~tc. ~06 -- , :- \ , Referred to.~1'.-n .£:::Para:·23
CIVIL APPELLATE JURISDICTi0N : Ci~il Adp ~~("
1
Ne;:
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', Fro~ thev & Or~er aateCt 17,. 7.2093· of the ~igh
',
.. ~ !
Judgment
i~ ~
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~ ~oSl~Jo! ~as~~-t?~a·tfl~~~.galo~~ !~-,:~~~·A., ~8c.~152,?J}9Q~
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1 .J~.. ~z 1 .. t._ c
C.A !NO;t5639 .Of~2004:. tO rncii '.:' _.:• ,; <rv• . j • : : ] :,;;,, ,.-:- ~, ; '
\ '•JJ....:l.,~ .. -01.. ., ~I~~ r1Jiv1 ot··~ !i~MOJ c~~!!b~~ I L·' ~ _tr·r~:.• :r 3,-~'Jf --~· - :·i.I
Sudhir Chandra, Parijat Sinha, Reshmj Rea Sipha, S.C.
--.. Ghosh and Debapriya Sa manta for the Appellant.'"' '"' -· '-·
...J.. ~·, :'r ,.,,.r 11:10L: \td .nn ... t;·1:.."Ch:o ~,~~~ ~-~ :-.. ._' .......,,; \(\J __ ~~c t.~ ··;· t:~ D
~:t;:;;\{·J·c~,ran2j~, fprJ~~...~~~P,~m~ent~.., .'. , ~-"'., ·k M:q: i "' ·, ·
·The ;Judg'meh(ot ttt~.iq~Lrrf:was d~iivered 6y_ ·::>.\ · •• r::o ~ ·
~t,"·nr•'.:?.'1. d ..•. 1
'. ::\tJn··: ~.. ~t. ~ ·~-, ··fl,..;_~'-i--!81 .': ..:.~-~
-·~t'.H.t.:DAPTU;j/1. if'liese appeals'are-direeted:against the
judgment ·~md~rder. passed by1heiHigh:Gourt:-ofKatnataka .rat E
Bangalore;· in .Miscr-First-Appt~al~ No.4152 of;2001:'and :Misc.'
F.irst Appeal',No.C1954 of··2oo2:dated 1 f7.07:2003;:t:·~::,: s'-l'.~·-:;
,._ ~;:'~' 6;;~ i:, c r,;1i~,,.ttsin r,~·;·· .:Jbr.u t. --:~ 4 !- i:_ t( .-. ~=n~ ~-'"1,·> :.,~c-i:~,i5e ,,
,,.- 2:: ~rjeflx s!atecj the_J~cts __are ,as 1fo/l9ws:-.~,1~•. ·;: i:11s J"l·.
The appellant in Misc. First Appeal is:1t4.pr8prfl1t~f§h1~ F
con.c~,rlJ aoci is _e{lgage~ . in ·_the. aGtivity of m~king .and s~lling
coffee,. tea· and ot~epbeverages,'~ and ;also sweets ,and
s~vortes;)Jt ·iS11registerectr·under Shops· c;1nd • Comme(cial
Est?b!is.hments Act. ,Sometime in the, year, 199.71 and ·1998,: th~~
appellant1 had ,purchased, a rb.olUe- cool~r andt:~_ls.o a ,coffee ·G
-.. roast~r:Acco.rcling to the appellant, even after ~uch ,p4rchase;,
,_ ithad.:nOtt~rripJoy.ed more than .10, or more,emplqyees. - , -;·1i
.....~ ~~f.:">; .• ;~.Y,.f· ~::.d ~'~---~nv. -: . ,JL J~-.- --1 ~: ~ r!;~ i .... ;~. '-\ .~~,~ j.] ..... •
J:lk~ ..~lh~ appe)l~~!:~!~,O ~ta_t~s. tt'~~. pow~r,'!1> '"~-~!'1~ ~~~~)~Qr:
op~fating,c9~fee.
~, l1l.•: ... _,.~1 . . ~."'1
i :j
roqster
t, .. ,.t
ar:ic:i.bQttle c_oqler. _It i.~ jt~ f,urth~r
.,'. ~·-...'..._:
iL
~ase,
ii ...._.~
,:.,... . ,j ,,, ....., (H J ' . ·' • ... • ) \ ' H
1144 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A t.hat, since it has not employed 10 or more employees, the ~ ,
provisions of the Employees' Sta~e Insurance Act, 1948
(hereinafter referred to as 'ESI Act') are not attracted to the
appellants' establishment.
4. The insurance inspector of the ESI corporation had ,.
}.
B
visited the business premises of the appellant on 11.12.1998 f
and 07.01.1999, and inspected the records from April 1994
and had recorded that the appellant had employed more than '(
10 employees as on 01.04.1994, as per the records and was
using power for the coffee roasting machine and the bottle
c cooler and as such the appellant's restaurant stood covered
under the ESI Act with effect from 01.04.1994, and therefore,
the appellant should have started complying with the mandatory
provisions of ESI Act.
D 5. The Deputy Director of ESI corporation, by incorporating )...,
the report of the insurance inspector by his letter dated
18.02.1999, had directed the.appellant to pay contributions from "
April, 1994, and submit Form-01 at the earliest. In response to
the aforesaid letter, the appell~nt by its reply letter dated ·'
E 08.03.1999, had brought to the notice of the Deputy Director
of the Corporation, that, after purchase of bottle cooler and
coffee roaster, had not employed more than 10 employees and,
therefore, they are not covered u.nder the provisions of the ESI
-+-
Act and, therefore, they are not obliged to pay any. contribution
.~
under the ES.I Act.
F
6. The Deputy Director o(the Corporation by his
subs·equent letter dated 09.04.1999, had informed the .
appellant, tha(.on·verification.of the.record$ .Produced before
the insurance inspector, it was observed that the· appellant is
G using LPG gas for preparation of coffee, tea and other
beverages and, therefore, covered under the ESI Act and ,..
therefore, appellant has to comply with the statutory provisions ~1
of ESI Act, failing which contributions would be recovered by
resorting to coercive measures as provided under the ESI Act.
H The proposal so made was objected. to by the appellant, inter-
( .
BOMBAY ANAND BHAVAN RESTAURANT v. DEPUTY1145
...(
DIRECTOR, ESI CORPORATION [H.L. DAITU, J.]
1 ~ alia, contending that the use of LPG gas cannot be equated A
with the use of power and as per the provisions of the ESI Act,
it is only when electric power is used in manufacturing process
with 1O or more employees, then alone ESI Act could be made
applicable and, therefore, requested the authorities to drop the
proceedings, as proposed in their letter dated 09.04.1999. B
7. Since the explanation offered by the appellant was not
y satisfactory, the authorities under the ESI Act, issued a demand
.notice, inter-alia directing the appellant to pay contribution for
the entire period, i.e. from April, 1994 till the date of inspection.
Since the appellant did not comply with the demand so made,
c
the Deputy Director of ESI Corporation, passed an order under
Section 45-A of the ESI Act, ordering the payment of
contribution under the ESI Act for the aforesaid period.
~ 8. The appellant, being aggrieved by the aforesaid order, D
' had filed an appeal before the ESI Court and Additional
Industrial Tribunal, Bangalore, as provided under Section 75 of
the ESI Act. The ESI Court dismissed the application/appeal,
on the ground that use of LPG gas also amounts to use of
electrical energy for the purpose of manufacturing activity and E
that the manufacturing activity is being carried on with the aid
of power and since 10 or more employees were employed, the
-t appellant is covered under the provisions of the ESI Act.
9. The appellant had carried the matter further by filing
F
Misc. Appeal before the High Court and the same was
dismissed following the earlier ruling of the Court in ES/ Corpn.
v. Bhagat Ram and Sons and Anr., reported in 2001 (2)
Labour Laws Journal 973.
10, The appellant being aggrieved by the judgment and G
order pa.ssed by the High Court in Misc. First Appeal No.4152
r- i of 2001, is before us in this appeal.
11. The facts in Misc. First· Appeal No.1954 of 2002 are
more or less similar to the facts in the other appeal which we
H
A hav,e, a!r~aqyi;·'l~ttc~q~, T!l~_
_.o_QIY~esJ~J~IPr~!J f~.<?U~.A.~~~' t~!:
app~llant~ \~~ !hi~..app~~I trm~r~1~c!~r~i~.Y"'Et~!~.~':1~ §~.Y~J:i~~1~Y1
using ~"o~kir;l9:9~~ i~'1d t~~J~Y'!l~~fa~f ~~P.~9.Y~~~ ·,~~gl~y~dL~Y1
th~m. w~s_nQt}TI9~~J~a!1.1J,s(~~~~~~~~~)i,~\ia....ny .P,~int;ie! t1~~v
Th.e~~e~~ ~~o.~n~~9~~sJ~!&~f~n~ ~!l;.m~if9J:U.'!'.~.::. &idR011qqs ''
)
B
,- 1·2. ir~1J 1~:atrri~ea'1~~nior' 1dBJ'ns~FfC>t f11\·1ip~~ini'R~
J
.s~b~Jtte.~.~ t.~~~ 1!iqy~f!e_dJ~~!~o!e,ym. ,g~~ :-C'.l~:f~Q. f9!.i~l}o.rr> by
~t.se,lf Js. !)~t ~!:!~,rQYi~r!_d_: t!J.e. \t~')S_mj§~~~hgfi 9?.~ .l<?_}~e,J~!~
~url)~r:s !~.~!?t.t~~~r~~s.n:iJ~~ion... oj. ~"!Y. ,~r~~gy :.;ffi!a~J?f~t!!]Q;p_n,
c t~i_s. ~f?S}J~·: tJ!e)~.?JQe~ ~~nip~ ~.~,{ls~! ~9_91;\t~P,~~Jl}.~t,;.;~J~!.9n~Y1
when ;t~~ 9~~.J~jgn!t~~ th,r,c;>LI,9h..t~~. ~~f!1~r!I tn~.)Q~~~~ ~nv~n~
into ~e~t.~..n~rgy,~~.n£,:fl.~,§~5~~ ~~~!e,g;_:p~tf~!!~Jn!~~i~n..Jgt~~Y1
for~. :.,Qf;\~!\.~rgy: ~!~~tn_a,t,~v~.ly;~ it; J.SJ c9me_'!,d~~cJfJ~~.J~~~Q;
assur11~rfg~~h~.b.!-.:.~,:·9,~~ -;i§, ~i(cm~. 9~1 ~,!J~;~9Y .,o!~ JL~,1n9t
/mechanically transmitted, because the term· 'mechanically'
, D pertairis·to~or'.involve:s' r'nachin~s:;and.a'gas)cylin~er.;isnferely
:a containertand the:tl.lb~is not: a;machirie~and,, therefore·, ,the;
'trari·smission 1of)gaS-1~through:the'.··tube1is8n6tra-.~mechanical;
tran$missibn"Jeither:, ff is cfurther.'submittea]hat rtne.meariiffg ;of.
the expressiomtpower'sas~definea~undei SectibnL2(g) 0Lthe1
.E Factory rAct; rmeans'Jelectrical.:.·energy; .dr1anyt;.other: fohtNdf,;
·e·nergy,rWhich:isimechanicatly:transmittedhtherleamed;seniot.
counset~by·1referringJtO''diCtionary;meanih·g-.of;the··.expressiom
'mechanital'. would submit;,-tt:iat;wm·echanicar.:'pectains!lo:;or~
involves machines operateq or produced by a machine made
F ·a'nd 'th~ meanl~g7Qf t~e 'Ef~pfession jmachi~&ilfs"lan~'appifatus
made' dr 0rganiz&8~ i~teractiiig 'parts:1wHich0 fuk~srrWa mor~
suitati1¥· t ormntor ·~)0es~ired 11 tundi1bn ~ft ar~HifWf br~system~
i . ' l,c,'i··-l{»c:'•
. ,,. "\f'ii "tit: ?."''!'·.) ,,r-- m1~.,..• 1•··~-·.~4 ,,
reserhbling such'an-'apparatas in ·a~tlng With regulanty·as a
result of interaction of its component'pa:rts'anH;ttt\e:r~fo(e,cit~;isi
G obvi9_1;1s, t.h~! _,h~,-~at~ qy.IJ9,9,~~~~Jl~i\~~.Jty,q~;iS~~Q,e~t7~ tDl3reto
is not~ IT!~f~i~~ ~!'~iitj~im~r~JY,.£~'~m.~rB.~;9~~~~!'£M!l~·W~n>
is not a mactiine. The le_~Jg~~~s~.~.~Of1 ;CEYU~~,si9 ei~r eb;Pi~
submission invites our attention to the observations made by
Privy Councff~;fa ·.th-e\ca~~:. ot~;cocpotation:.of Ca1cutta v.
. H Chairman·of Cossipbre and,,Chitpbre' Municip.ality,e[AIR. 19221
BOMBAY ANA-ND·BHAVAN'"'RESTAURANT v.· DEPtJTY1147
DIRECTOR, ESI CORPpRATION [H.L. DATTU, J.]
PC'·27], wherein"fhe cC>~rt''explalned the· mea'nin'g of A
'Machine,Y 'to mean some mechanical contrivances Which by
theinselves.'6f in combi~ation 'with oni'' or more other
mechanical' contrivances, by 7 the combined movemenf and
I interdependent operation of their respective parts generate
1
l
r power, or evoke,
, J 'Yl~ ,.,. •'
H-_f'~
modify, apply or direct natural forces with the
"l)-;"""' • ·. "' . 'lo.. • I- J . ~ J -, " • > • -
B
object in each case of effecting so definite and specific a result.
, . ""'·~ -, , ..' ! • ... · ~ , ' (;i I • i _ ' , • , , ~ • ~ ~
It is.~l~o.br9ught ~o pur.rypti9e _trat tb~.interpr~t~ti9n.of the word
; Y- 'M~phi~~IY' by. !h~ 1 .f>~i~. Cc;nmcil has. !b~en 1 approved by this
CQurt in the case~of C/,T_ v. Mfr Mohammed Ali, [AIR 1964 SC
(') ~ t ' ') · ' .I
c
[ ,> ' t • ; - - • \';..
16~_3]."'L~stly, it is ~~bmi~ed t~at, i~e interpretatjgp af beneficial
tegi~li1!tion.~~~uld 119~ ~e -~tret~h7~ .too,~e1~.to,rop~in an industry
which WQt,ild ·not fall,within. t~~ ambit. of the Act.. ~~fen~nce is
mad'e. to the observations ·_ofthis_
-f l , ~ · .
Court· fn the
'...f \. '-' . •
case
•
of The · ' ,,_ • I · ~. ~
Wor~men. 'of.. M(s.·.~f.i[e~~pf!e, Tyr~,,a,~c1 Rlfbb,f!f 90. of India
-"" (Pvt.) Lfd.: 11: T.~e_., ~an,<J,g'!rryent,\apf} 9~., [(197,3) ·1 sec 813) 0
and G. Giriyappa and. Ors... v. _Anantharai L. Parekh.and Anr.,
~ : t'\> ,. - . '· J • }',.:-)( .. ... • • • •.J • ., ' ' ,,. " ~' ; • • - •• c
[(1 ~~~..~.~~C:~8~]. }h~ :s'i~·a9-~. s_ubstari~e ofJhe.submjssion
of ,h~. tearnea .s.er:i1p,r coun,sel. ~~,_that LPG. gas canpot be
consider~d asJ>ower1 '..as•· defined
- -111)1j .1·"'·f· i' · - . -
in Section.2(g) of the. Factories
·:i. c, ~:11J·J~ ~~..1 I~ '.,_, 'V ' '
Act, 1:948.,.. , ,' ~; .•.. 'cic:.-1 , 1 • :" J: -.-. . . '~; . E
13. The learned. coun~et appearingJor respondents
submi~e{t~_af the u~~ LPG g~s,~~fi .the _purpos.e of cooking '. ·af
~ ha~J? be treated as use.~f_f:>olllf~~-.~~~J~~refore,.~he appellants
are required
J t : J ( fUt<
r~
to comply
. ...... with.J'Athe.provisions
"""" ... , .
ofJhe. ESI Act.
~,c... f ~ ltj 'i' , i H ... · "- . '
.14.~Tne issues that require fo;be~_decided in these appeals
are:-"'· ;;:·.r. -.,~ .~t;,.'' ,. .··i,~ ,... iL1 :_}·i\ ·- 11''
F
(I} Whether the establishment of the appellants' is
covered under the provisions of the Employees
... ,~i · ::.. Statelnsurance .'Xct, 1948. ·· - · G
.~; -:-.. . '. ~ ! ~ ·~-" :! - ·~ d. ~
1f1~f)· ·.,,.Whether the use~otLPG gas is use of power a·s ·
.; K 'r· i0defined under the Act ' ,- -
",i ·., '. :~ . .f_; ~ .... :.:.":)', 'l', i~~ 'r·'. ..... . . 1' I •
'1_5.!i"T:he :.F.'!'P'~Y.~e.s rState Insurance .Act: is,~ beneficial H
1148 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
t-
A legislation. The main purpose of the enactment as the
Preamble sugge.sts, is to provide for certain benefits to
~ •
employees of a factory in case of sickness, maternity and ·
employment injury and to make provision for certain otber
matters in relation thereto.
B
16. The Employees State Insurance Act is a social security
legislation and the cannons of interpreting a social legislation
is different from the cannons· of interpretation of taxation law. '(
The courts must not countenance any subterfuge which would
defeatthe provisions of social legislation and the courts must
c even, if necessary, strain the language of the Act in order to
achieve the purpose which the legislature had in placing this
legislation on the statute book. The Act, therefore, must receive
a liberal construction so as to promote its objects. This Court,
in the case of ES/ Corporation, Hyderabad ·v. Jayalak~hmi
D Cotton and Oil Products (P) Ltd., (1980) Lab IC 1078 has >..
observed that the ESI Act is a ~ocial security legislation and · ~
was enacted to ameliorate _the various risks and contingencies
which the employees face while working. in an establishment
or factory. It is thus intended to promote the general welfare of
E the workers and, as such, is to be liberally interpreted.
17. The ESI Act is made applicable to all factories,
including factories belonging to the Government other than
seasonal factories. Proviso appended to Section 1(4) of the -+
Act carves out an exception. Sub-~ection (4) of Section (1) of ~
F
the Act shall not apply to a factory or establishment belonging
to or under control of the Government whose employees are
otherwise in receipt of benefits substantially similar or superior
benefits provided in ESI Act.
G 18. Section 2 of the Act defines the meaning of certain
. expressions for the purpose of the Act. Section 2(12) of the Act
'r
defines the meaning of the expression 'Factory', to mean any ~
premises including precincts thereof, wherein ten or more
persons are smployed or were employed for wages on any day
H of the preceding twelve months and in any point of which a
BOMBAY ANAND BHAVAN RESTAURANT v. DEPUTY1149
DIRECTOR, ESI CORPORATION [H.L. DATTU, J.]
A
• ~.
manufacturing process is carried on with the aid of power or
is ordinarily carried on or twenty or more persons employed for
wages or were employed for wages on any day of the
preceding twelve months in the premises including their
precincts where manufacturing process is carried on without the
aid of power. B
19. Section 2(15c) of the Act is inserted in the Statute Book
y by Act No.29 of 1989, with effect from 20.10.1989. The sub-
'l. I section defines the meaning of the expression 'Power' to mean
as the meaning assigned to it in the Factories Act, 1948.
c
20. Seetion 2(g) of the Factories Act, 1948, defines the
meaning of the expression 'power' to mean electrical energy
or any other form of energy which is mechanically transmitted
...., and is not generated by human or animal agency.
--', D
21. Essentially for qualifying the establishment of the
~
appellants as factory, the following conditions needs to be
satisfied:-
(i) Manufacturing process was being carried out in the
establishment. E
(ii) There was power being used to aid the manufacturing
+ process being carried out.
{iii) 10 or more workers were working in the establishment
F
any day in the preceding twelve months, if power was
being used to aid the manufacturing process, or
(iv) 20 or more workers were working in the establishment
any day in the preceding twelve months, if power was not
being used to aid the manufacturing process. G
'·-
-... 22. Therefore, first it needs to be proved as to whether
there is manufacturing process carried on in the establishment
of the appellants. Manufacturing process is defined under
Section 2(k) of the Factories Act as:- . H
-~ .
)
1
;kl'.i[lifp&m~i11g~hi( w~ter,' seWaffEfSf_ !fny1 ~t~~rsubstang~;. or
-dua ~111 t..J•~ . .Y _u..: f""h" T JvGii':J nJNi d::lb'f to 1:
1 1
'::.. o!I! J'\'-\ i:~·
nBS(iii}"-generaling ~·,transforming:,or;transmittirig <powst; or 1':1?e
8~·-8 i J:;f\ cc19llClb8 '--rM f't ji Oi Ll'E' '.'(!l:!F :' tT" 1B~~i'' ?'1 f'E 1
(iv) composing types for printing, printing by letter press,
ant litliographyr·pfiofog ravure ·or; Cither sirnilaf:pro&ss!or. tfook
'H:P·bihdingiior.Ji:· :"s··.. ;, '}j ·-·s·t,',Jq' r.rn~ze:qx.s srit kJ Gnincs"-"i
bstl.ni::;nmi vri:dns.~".' ..)<"n i1 tiidw vov:-:>'1(; \• r11011srlJo \llG 10
(v) constr~~tii::tQ r re_con~t~~t!ng;~f~P.~!~~9•J~~~igQ. :flnis:hir:m1t.;
or breaking up ships or vessels;
-~
~:i;;;
,,.._ •;,'1":i:
{•,..J
·· --·rl· ;I·., - - · .;
~ c.~,li ·11•~c1 .;)d;
0 . . . >.''
Qf'tX1:~R'Jf)
-·-
~· ..H \1·lj b1Tn·
·'· 1- · ·"
.:h.:r.1'j
I''
; . .,
-;rf (Y:i) :.pJ~s~rving. ·:OJ :stqri~g ,aQYc~rti~!~ ,i~i~~~lgts!Q.rage.:;: ·,:,qas
·;---~,~~.:<:;E-,:
23. Both the appellants prepare sweets, savories and otlier' ·-
b~y~rages~inJ~~ir-es~~bljshmerit§;, lt:.i~ ~i s;rttle_~ ;p_o~it.igp:o_f law
E~ that cooking and preparing food iten:t.s~qu_~IW~~ 3 as
manufacturing process. In the case of ES/ v. Spencer and Co.
[(1978)lf:l!C -1759],ithe Ml:idras ldigh'.COlJrt1held/Whileide'aling
with the case of a hotel run by-Spohsoti-'.and Company;•that
p~e~aration of coffee, i:>eeling of potatoes, making bread-toast,
F::; etc:';in1ci'hot~f; ihv0ive1"'manufactoi"ihg) pfocess'~'S'imiiarly the
Bdhtbay H}gh '..99k~1i(P~~'flji/nfi,'q~t~~tl-7ofiJi1Lfib~e3 v;1 }~ C. -
1
Sarin, [(1980) t:Jt? 1oaf Held ttiat tile kitttfeR att~che<:tft8 Hotel
Blue"°iamond ,run.,by
~.is_.:i~.,...;.L; •:t
th_e.. PetiHoners,
,·_, ., , .:...'n..••rJI ......
,...~'L;t-"H..;- ~_,'
therein, ..,should ,be
,._.,;1:....; • -,~\jl ~ •V \ .. · .• ·~r
~q9~i~~r,~q~~~:,e ;f~2WrY' fo~,~~~vP.UJPR,S_~.1.~feiE3\J"}Rt~ :tte~8;· it
G.J 1s beyond dou~U.9,,~P~,~,re;~~·tm~n~{~9~~!'D~.. ~rps~~~. 1.~vo1~ed
in the establishment bf the appellants. '
BQMBAY ANAND BHAVANrR.ESTf\~~NT v'.. Dl;PU:f\'1151. r
DIRECTOR, ESI CORPORATION [H.L. DATIU, J.] .
'beyond doubt. So, the essential question which.comes. up forr I\
consiperation is whett,ier th~re pa~ ~ee!l use of pqwer int~~..
aid of the manufacturing process. It. is -t~e ,c9nten_tion ·_OfJhe .
respondent corporation that use of LPG gas amounts to use
of power. , . - · ,~,~-;· · ·.,.· ,, ?. • · : · ·- ~, :~· '
l--~ ~ ~. t•• :~~, t
- . \ ·' 'I;_ 1ud -~ ~ . .. . .
• Bi
~ f_S.:. The definHiorH)f'Power'..is in .~o. par:ts .. firstly, itjs \
el~ctrical eryergy, ,~~c;!_i.nc~u<!es any other:form-qten.ergy which 1
is,rnec,hanically t~af1smitted •.Jhe second part Qf th~~definitionr~
prc;>Vides for exclu~i.onJr.o~ the_~efil'!ition of.powef,-i.e.-;:itdoes.:<
nqt, incl4de-p?w~r generatecLby,human or animal energy.The) C·
definition is "V,i~e_enough to:include all_forms-of_energy which., ·
is mechanically transmitted. We will revert back.toJhis definition
litfle, later ..after; un.derstandiog what is LPG Gas;,and;the. ·
mechanism e_mployed vt_h_iLe,~ra[lsmitting the energy from,,-LJ?G~
COOtainerS. ,,· :y'-·'iC;y ;-i r 1 <~·, . "'.)(-= .'·;J . .:.-11 ' : ' - ' v'.:_,,;~_
~·:~.--~I~ -
-h=~-~r- :·
·-{,,.;.~, ·t~ .·.' ,,;, · · ' ~~-:Cr.rl• • D~:
26. 'Th·e· New ·Encyclop"aeaia· Britannica,· 15th, Edition,.
,:;.,.,; ! . • .,
~ ~ f ....... 1- J i , •- t . . .
~- ,.!.; • . f" - , p .- i . ' : • -· - . - ' ~
co,l),t,~ir~-~~ a~iq\e 3on pqu.~fiep~p~t~o/~U!Jl~9~fwhjc~. i~. al~q 11
ca~~d Lf. G-~~· .?f. l.:\~:1 ~~e art1cl~ ,1.~ 1 e~~ragJ&~,:., __- ~· . ,, _=_.i-::
"Liquefied petroleum gas, also1caUed LP. Gas br ~PG;1 E- a:n{'t
of several liquid mixture"of'ttie'volatile ·hydrocariic>ris'\, .:l
~,.-
propene,
! '.
propane,
,.. · l ·. .•-e.'
butene, .... ·I
and. butane.Jt
, .,,.
~ . .
.was ·...,, · ,
used
•
as ~ .~
~·rf~-rly .~s '~.~60.~orr_a, portable fu~I_ ~puree •. a~_:i~~)r~ducti£P. 6
~ and consumption _for both domestic and .industrial use.have.: ·
~·1·~ ~-! • :1:; r.,; 1f:. '. --. ''·'
~'~ \le~
-: ; ............. ...., ' \~ c.t~ 'J~
•r; ~~pa~_de~ 1 .~Y,erl sm.c~_. ~ tr,g1c~I c?rnme[c,1~fi ~'~Yf~ ~~Y ii ,
r:r'f~~.°- ~,c;>,~,w~nh~~~.~~-~.,a,IJ(~!~YJe~-~ ..~~-- ~~I! ~.s,.a vol~~~I,~. •' F ·
. :Q'le~c~~trJl·.,~P;-Q~?J!~m; ~~~~~:_~s a·1 ~a!,~'¥ pJ~~aution,.: 2 •.
21. LPG' or LPG"gas tne ·abbreviatfOri' of liquefied ·is
petroleum gas. This group of products includes saturated--·-.
hydro~a.r,~ons, R~Qpane ~nd .b~t~n~. _whi9h ca~ ~e stored .and G.)
tra~~~~.tt~ed~~p~ate,l_y .9_r a~ '3-"ili~~r~._ Th,is is.?~t~e,dJiq4e~e~,,,,
petrol_~lJm, ga_s, bec;au~~' the~e g~~esJiqu~fy un~~J:mq~erat~:h,.
pressure. LPG is used as· a fuel for'aome$tic
~ • ..,, ~,Cf·'
r·1r'
{cooking),
,w ,,.
·I ,... r
'
..
l•· ";..t· .~1 1 ,.,_ ·,.1_ t '· i
industrial, horticulture·, agric1.mu-r~1.
l '~.ii·-
:6eatjflg ~ til~.d. J•dry.ing·:
.?.'l'7J
·' . ~),_.
. ~ ,I ,.·ti "i . .# f>j1
pro~~sses. ~F~. ·p,an b~ u~~,d-~J~~ an ,a~tqn:io~_1ve f~~J. ~r ia~. ~ :•: H H
j .,•
.,_
1152 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A propellant for aerosols, in addition to other specialists
.J,
applications. LPG can also be used to provide lighting through ._
~
the use of pressure lanterns.
28. The·gas cylinder is filled with a liquefied fuel gas, such
as liquefied butane or the like, having a relatively low activity.
B
A portion _of the liquefied fuel gas is enclosed in the body of
the gas cylinder which is vaporized, causing the internal
pressure of the gas cylinder to be higher than the outside - l"
pressure. Therefore, there is conversion from one form of
eneigy to another. A valve mechanism h~ving a stem is
--
c mounted on the body of gas cylinder. The gas cylinder is joined
to the gas cooking stove so that the stem is pushed inwards
and the valve mechanism is opened. Thus, the fuel gas is
discharged owing to the internal pressure. The gas cooking
stove incorporates a body, which is provided with a valve
D mechanism for supplying fuel gas to the burner and an operating )...
member for opening/closing the valve mechanism. The valve
mechanism in gas cooking equipment is to reduce high
pressure gas supply to a lower working pressure. This is done
...
to ensure steady supply of the gas at constant pressure.
E (Assistance is taken from the internet).
29. The submission of the learned counsel for the
appellant, is that in view of the definition of power in the -t-
Factories Act, any other form of energy requires to be ~
'Mechanically transmitted', which essentially involves use of ......
F
machinery. It is also suggested that 'mechanical' pertains to the
use of machines and, as such, the transmission of LPG from
the cylinder through a tube connected thereto does not qualify
as a machine.
G 30. Mechanical_ transmission is as opposed to manual
transmission where human agency is involved in the process
of transmission. Transmission is defined in the Collins
r
Discovery Encyclopedia, 2005 (1st ed.) as "the extent to which
a body or medium transmits light, sound or some other form
H of the energy". The word 'Machinery' is defined under Section
BOMBAY ANAND BHAVAN RESTAURANT v. DEPUTY1153
DIRECTOR, ESI CORPORATION [H.L. DATTU, J.]
20) of the Factories Act. 'Machinery' includes Prime movers, A
• ~ transmission machinery and all other appliances whereby
power is generated, transformed, transmitted or applied. The.
expression ·prime mover' means any engine, motor or other
appliances which generates or otherwise provides power and
the definition of transmission machinery under Section 2(i) of B
the Factories Act means any shaft, wheel drum, pulley, system,
of pulleys, coupling clutch, driving belt or other appliance or
....,
device by which the motion of a prime mover is transmitted to
;
or received by any machinery or appliance.
31. LPG is stored in a cylinder fitted with a tube. Upon
c
careful perusal of the definitions, which we have noticed earlier,
it is clear that an LPG cylinder would qualify as an appliance
which provides power. This power is transmitted by a tube
which upon careful reading of the definition qualifies as .
~ transmission machinery as it is an appliance or device by which D
the motion of a primary mover is transmitted. In fact an analogy
- between the transmission of electricity and transmission of LPG
can be drawn. The movement or transfer of electrical energy
takes place over an interconnected group of lines and
associated equipment between points of supply and points at E
which it is transformed for delivery to consumers or is delivered
to other electric systems. Transmission is considered to end
t- when the energy is transformed for distribution to the consumer.
In many countries transmission of LPG also takes place in a
"
.,.. similar manner from a large fixed tank. In case of LPG stored F
in a cylinder the mechanism of transmission is essentially the
same as the gas travels from the cylinder where it is stored to
the gas cooking stove. While transmission of electricity involves
a switch, transmissron of LPG involves a valve mechanism or
a regulator to ensure smooth flow. Hence, LPG is a source of G
energy which is mechanically transmitted by way of the tube
y attached to the machinery.
32. In our view, the use of LPG satisfies the definition of
power as it is mechanically transmitted and is not something
H
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