Employees State Insurance Corporation v. Bhagatram And Sons And Another

Veerabhadraiah, J.:—

The Employee's State Insurance Corporation being aggrieved of the order of the E.S.I Court, Bangalore in E.S.I Application No. 183/90 dated 11.4.1996 allowing the application by setting aside the order dated 25.9.1989 passed under Section 45-A of the E.S.I Act has come up with this appeal.

2. The brief facts of the case are as follows:

Respondent No. 1, Bhagatram and Sons, an establishment carrying on with the business of manufacturing of sweets with the aid of Liquified Petroleum Gas (L.P.G) was called upon to pay contribution to the E.S.I authorities by registering its establishment and to produce the wage and attendance registers for the purpose of determining the contribution. It appears, as the establishment did not appear before the E.S.I authorities, the E.S.I authorities have made a formal inspection of the establishment and found that for the month of September, 1989 and January 1990 it has employed 10 workers. Accordingly, an order under Section 45-A of the E.S.I Act came to be passed covering the establishment for the period 25.9.1989 to 31.3.1990 determining the contribution payable at Rs. 3,307/- with interest at 12% p.a calculated on actual wages paid to the workers. The establishment questioned the order of the E.S.I authorities before the E.S.I Court, Bangalore by filing an application under Section 75 of the E.S.I Act. The E.S.I Court after considering the materials on record allowed the application by setting aside the order passed under Section 45-A of the E.S.I Act. It is this order, which is now questioned by the E.S.I Corporation in this appeal.

3. Learned Counsel Smt. Geeta Papanna, appearing for the E.S.I Corporation vehemently contended that it is an admitted fact respondent No. 1 is carrying on business of manufacturing of sweets by using gas cylinders. It is also clear from the attendance register that it had employed 10 persons during September 1989 and January 1990. Therefore, within the meaning of Section 2(12) of the Employees' State Insurance Act where ten or more persons are employed for wages on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on with the aid of power is liable to fall under the E.S.I Act. Therefore, the impugned order of the E.S.I Court setting aside the order passed under Section 45-A of the E.S.I Act determining contribution is not sustainable. It is nextly contended that the intention of the legislature is to extend the benefit to the employees in case of sickness or employment injury as the case deems fit in the circumstances. When it is clear from the records and also the admissions that respondent No. 1 Bhagatram and Sons having involved in the manufacturing activities of sweets with the aid of Liquified Petroleum Gas (L.P.G), the E.S.I Act is very well applicable and therefore, prayed to set aside the order of the E.S.I Court by allowing the appeal.

4. On the other hand, learned Counsel for the respondent vehemently contended that what is used is Liquified Petroleum Gas (L.P.G) for manufacture of sweets. Therefore, that does not come within the meaning of power as L.P.G is not a source of energy. He has further contended that according to the meaning of “energy” as defined under Section 2(g) of the Indian Electricity Act, 1910, electrical energy used for purposes of generation does not include L.P.G Accordingly, prayed to dismiss the appeal.

5. In the light of the submissions, the short point that arises for consideration is:

Whether the use of Liquified Petroleum Gas can be construed as energy for the purpose of manufacturing process so as to attract the provisions of Section 2(12) and Section 2(14-AA) of Employees' State Insurance Act read with Section 2(k) of the Factories Act, 1948?

6. It is, an admitted fact that as per the entries in the attendance register (Ext. A1) that in between the period 25.9.1989 to 31.3.1990, during the month of September 1989 as well as during the month of January 1990, the establishment in fact had employed 10 persons.

7. Section 2(12) of the Employees' State Insurance Act, reads thus:

“2(12) “Factory” means any premises including the precincts thereof-

(a) where ten or more persons are employed or were employed for wages on any day of the preceding twelve months' and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on, or,

(b) whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on, but does not include a mine object to the operation of the Mines Act, 1952 (35 of 1952) or a railway running shed.”

8. So also, Section 2(m) of the Factories' Act, 1948 reads thus:

“2(m) “Factory” means any premises including the precincts thereof-

(i) whereon ten or more workers are working, or were working on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on, or

(ii) whereon twenty or more workers are working or were working on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on, but does not include a mine subject to the operation of the Mines Act 1952 (35 of 1952) or a mobile unit belonging to the armed forces of the Union, a railway running shed or a hotel, restaurant or eating place.”

A reading of the above provisions makes it clear that in any case if an employer were to have engaged 10 or more persons during any of the preceding twelve months carrying on with the manufacturing activities with the aid of power, automatically the establishment is covered under the Employee's State Insurance Act for the purpose of payment of contribution. It is pertinent to note that the purpose of the enactment of E.S.I Act is to extend the benefit in respect of employees working in the establishment or factory as the case may be in case of sickness or employment injury etc. To say, it is in the interest of the workmen to safeguard than from any such unhappy incidents that may occur in the course of their employment.

9. In the present case, the E.S.I Court while considering issue No. 1 has clearly held that the applicant had employed only 10 persons during the month of September, 1989 and before the Corporation also the applicant contended that it was not using power for manufacturing activities of sweets. Therefore, that is not coverable under the E.S.I Act. Inspite of this, ignoring the contentions, the Corporation passed the impugned order. Therefore, the learned Counsel submitted that the said order calls for interference by this Court.

10. The E.S.I Court allowed the application filed under Section 75 of the E.S.I Act on the ground the use of “gas” cannot be considered as power. The E.S.I Court in its order observed as follows:

“According to me, the using of L.P.G for the purpose of manufacturing of sweets cannot be considered as usage of power. In this case, the Corporation has not placed any convincing evidence before this Court to show that the applicant was using the power for the purpose of manufacturing of sweets.”

It is with this observation, the E.S.I Court allowed the application.

11. It is in this context, now it has to be examined whether the use of “gas” does come within the meaning of “Power” used for manufacturing purpose.

12. Section 2(k) of the Factories Act, 1948 defines “manufacturing process” as follows:

“2(k) “manufacturing process” means any process for-

(i) 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.”

13. The main contention of the respondent No. 1 is that their establishment is not covered as they are using only gas cylinders for preparation of sweets in their shop and therefore, claim exemption. In this context, the learned advocate for respondent No. 1 made available the definitions of Energy, L.P.G etc., which are as follows:

“Petroleum Products-

LPG and Kerosene are sources of energy like fire wood, coal and oil that produce necessary heat.

2. LPG is a source of energy and not form of energy.

3. in the instant case LPG is used for cooking (making sweets) and not for operating any kind of equipments.

4. The heat energy produced by LPG is not transmitted mechanically to do any kind of job or to operate any kind of equipment, but used directly for cooking.

5. Usage of LPG for cooking sweets does not amount to use of power. Therefore, the respondent is not coverable under ESI Act.

6. On the otherhand, if the contention of the appellant is allowed then usage of kerosene, coal, wood for cooking also amounts to usage of power and therefore would be coverable under ESI act.

7. The following definitions are relied on the above contentions.

a. ENERGY (The power to do a thing) Fuels like wood, coal and oil that produces necessary heat comes from sunlight that has been stored up for years and years in the form of chemical energy.

VII Std. Chemistry Text

Petroleum Products like LPG (Liquified Petroleum Gas) and kerosene are used for cooking and lighting, firewood is also used for cooking. The stock of these sources is limited. Hence they are called NON-RENEWABLE SOURCES OF ENERGY.

ICSC VIII Std Chemistry Text

b. ELECTICAL ENERGY

It can easily be converted into other forms of energy. An electric motor converts electric energy to kinetic energy.

New Science Library Force and Energy Vol. 5

c. MATTER — The substance.

ENERGY — The mover of substance unseen and untouched.

d. POWER- Performing large amount of work in a short time.

The World of Science

e. NATURAL GAS

Natural Gas is the lightest petroleum product. The principal use of natural gas is as fuel.

f. LIQUIFIED PETROLEUM GAS

Usually designated as ‘LPG’ is obtained by compressing and colling of liquid hydro carbon mixture (natural gas). It is sold in cylinders for domestic heating and cooking.

g- KEROSENE

It is the lightest and most volatile of liquid burner fuels, employed as a fuel in heaters and cooking.

Colliers Encyclopaedia

h. Many people use Liquified Petroleum Gas (LPG) for heating and cooking. LPG is used in industry for cutting and welding metals and on farms for operating various kinds of equipments.

The World Book Encyclopaedia.”

14. That apart, Section 2(g) of the Factories Act, 1948 defines ‘Power’ as follows:

“2(g) “Power” means electrical energy, or any other form of energy which is mechanically transmitted and is not generated by human or animal agency.”

From the reading of the definition, it is clear that it may be electrical energy or any other form of energy which is mechanically transmitted and is not generated by human or animal agency. Thereby, from the definition it makes clear, if the energy is used in the form of heat for the purpose of manufacturing process it comes within the meaning of ‘power’. It is with this approach, the Court has to adjudicate the matter.

15. In “The World Book” Encyclopedia (E Volume 6) Published by World Book International, at page 245, ‘Energy’ as well as ‘Forms of Energy’ are defined which is as follows:

“Energy” in physics, is the ability to do work. For example, the acceleration of a Car or the lifting of a stone requires work. Work and energy are measured in the same units. People often confuse energy, power and force. Power is the rate at which work is done. Force is a push or a pull on an object or body. A force will deliver work as long as it moves the object. The amount of work will be determined by the strength of the force used and the distance over which the object moves. Energy associated with motion is called mechanical energy.

FORMS OF ENERGY

Energy is one of the fundamental ideas in physics. The other is mass. Energy exists in several forms. One form of energy can change into another form in a process called transformation of energy. For example, the heat we feel coming from a fire reaches us as radiation. Objects close to the fire are warmed by infrared rays, a form of electromagnetic radiation. These objects gain energy in the form of heat. Light is also electromagnetic radiation, and so is a form of energy. Other forms of energy are chemical energy, nuclear energy, electrical energy, and mass.

All human life depends on the energy we receive from the sun in the form of radiation. The sun's infrared radiation warms the earth, and its light rays glys plants the energy to grow. Plants store the sun's energy as chemical energy in a process called photosynthesis (See photosynthesis). The food that plants make is the food on which all animals depend. Animals and human beings use the energy from food to drive their body processes and to move their muscles. The sun's energy is also stored as chemical energy in oil, gas and coal. These fossil fuels are decay products of plants and organisms that lived millions of years ago. We burn these fuels to extract the energy in them. Burning converts the chemical energy in fuels into heat. Heat, in turn, can be changed into mechanical energy. For example, the burning of coal can power steam turbines that generate electricity in power stations. In a power station, chemical energy in coal is transformed into heat energy, which is itself transformed into mechanical energy. The mechanical energy delivered by the turbine is transformed by the generators into electrical energy.”

16. Respondent No. 1 admittedly is carrying on with the manufacturing activity of sweets with the aid of gas. It is common knowledge, whether an establishment is small or big, normally in the manufacturing of sweets nowhere it is found electricity being used for that purpose. But it is only gas which is commonly used. Therefore, the submission of the learned Counsel that the use of “electric power” is essential for the purpose of manufacturing of sweets cannot be accepted, as it is clear that “energy” may be in the form of oil, gas and coal and the burning of it in the turbines generate electricity in power stations.

17. In the case on hand, the gas which is used for the preparation of sweets is being transmitted through the tube to the stove which creates heat. It is on account of the use of the heat which is “energy” sweets are being manufactured. Therefore, it also comes within the meaning of transmitting power and thereby attracts the provision of Section 2(12) of the Employee's State Insurance Act so as to cover the establishment and thereby liable to pay contribution determined under the Act. Therefore, I am of the clear opinion that “gas” is also one of the forms of ‘power’ within the meaning of the Act and that it need not be in the form of electrical energy.

18. For the foregoing reasons, the appeal is allowed setting aside the order of the E.S.I Court dated 11.4.1996 by restoring the order passed under Section 45-A of the Employees State Insurance Act.

In view of the peculiar circumstances of the case, the parties shall bear their own costs.