Dattu, J.:—
These appeals arise out of an order made by the Employees' State Insurance Court, Bangalore, on an application filed by Jaihind Road Ways under Section 75 of the Employees State insurance Act, 1948 (hereinafter for the sake of brevity referred to as ‘Act, 1948’).
2. Brief facts are
First respondent in M.F.A No. 3081/1995 Jaihind Roadways, Bangalore, had filed a petition under Section 75 of the Act before the ESI Court with a prayer to declare that it is neither a factory nor an establishment and therefore; the notification issued by the State Government in No. SW1/371.ESI/81 dated 5.1.1985 extending the provisions of the ESI Act is not applicable to its establishment and also to set aside the orders made by Officers of the ESI Corporation under the provisions of Section 45A of the Act dated 28.1.1988 in determining the contribution payable for the wage period 1.1.1987 to 31.3.1987 This application was registered by the ESI Court as ESI application No. 225/1988.
3. The first respondent - Jai Hind Roadways, Bangalore (M.F.A No. 3081/1995), had also filed another application under Section 75 of the Act, interalia requesting the ESI Court to set aside the demand notice dated 15.7.1988 issued by the ESI Corporation to pay the contribution for the previous wage period 27.1.1985 to 31.12.1986 This application was registered as ESI application No. 226/1988.
4. According to the case set out by the applicant in its applications, that, it is engaged in the business of transportation of goods by road with the assistance of transport carriers. It was stated that its head office is at Bombay and the office at Bangalore is only the branch office. It was also stated that for its business activity, it has clerical staff, appointed under the service contract and they are subject to the jurisdiction of State of Maharashtra. It was also alleged Page: 2285that ESI Corporation had issued a notice informing them that their establishment is covered under ESI Act in view of the notification issued by the State Government dated 5.1.1985 and therefore, they were asked to comply with the provisions of ESI Act, 1984. It is stated that the applicant disputed the claim of the ESI Corporation primarily urging, that it is neither an establishment nor a factory as defined under the notification of the State Government. According to the applicant, inspite of this objection, the ESI Corporation had passed an order under Section 454 of the Act, determining the contribution payable by the applicant at Rs. 8,421.60 ps. for the wage period 1.1.1987, to 31.3.1987 and also had Issued a demand notice for the previous wage period 27.1.1985 to 31.12.1986
5. The ESI Corporation had filed its objections before the ESI Court resisting the relief sought in the applications by the applicant principally on two grounds:
(i) that the notifications issued by the State Government under Section 1(5) of the Act would cover the applicant's establishment.
(ii) that since it is an establishment within the extending meaning under the notification, it is liable to pay contribution under the Act.
6. On these pleadings, the learned trial Judge had framed five issues. He found that the applicant is an establishment as defined under the notification issued by the State Government and therefore, there is liability on its part to pay the ESI contribution with effect from 27.1.1985 Accordingly, has dismissed both the applications and has further directed the applicant to pay the contribution of Rs. 8,421.60 ps. and contribution of Rs. 32,723.75 ps. for the period 27.1.1985 to 31.3.1987 with interest at 6% per annum on a sum of Rs. 8,421.60 ps. with effect from 28.1.1988, the date of the order and with interest at 6% per annum on Rs. 32,723.60 ps. with effect from 15.7.1988, the date of the impugned demand notice, till the date of payment.
7. The ESI Corporation in their appeal in MFA No. 3081/1995 question only that portion of the order of the trial Judge where he has imposed only 6% of interest on Rs. 32,723.60 Ps. with effect from 15.7.1988 and the other two appeals namely, MFA No. 3041/1995 and M.F.A No. 3042/1995 are filed by the applicant - respondent establishment aggrieved by the rejection of their applications filed under Section 75 of the Act dated 9.2.1994
8. Smt. Geetha Devi, learned Counsel for the appellant in appeal No. 3081/1995 submits that in view of the amendment to the provisions of Section 39(5) of the Act, which has come into effect from 20.10.1989, the learned trial Judge has erred in awarding interest only at the rate of 6% for the wage period 27.1.1985 to 31.12.1986 In aid of this contention, the learned Counsel relies on the observations made by this Court in the case of Manjog & Organisation in M.F.A 870/1993 and connected appeals disposed off on 31.7.1994
9. Sri C.B Srinivasan, learned Counsel for applicant/establishment in MFA No. 3041/1995 and connected appeal submits that in view of the definition of ‘manufacturing process’ under Section 2(14-AA) of the ESI Act read with Section 2(1-C) of Factories Act, the establishment of the applicant cannot be construed either as ‘shop’ or a ‘road transport establishment’ or a ‘cinema’ and so on and secondly, it is stated that the trial Court has committed a grave error in coming to the conclusion that the applicant's establishment falls within the definition of ‘manufacturing process’, inspite of the fact which is not even disputed by the ESI Corporation that the applicant does not own any vehicles for its business activity and engages only the services of transport carriers. In support of this submission, the learned Counsel relies on the definition of the meaning of the expression ‘manufacturing process’ found in Section 2(k) of the Factories Act.
10. Since the main contention raised by Sri C.B Srinivasan, the learned Counsel for the appellants in MFA No. 3041/1995 and connected appeal is that the transportation of goods from one place to another place by road with the assistance of transport carriers would not come within the meaning of the expression manufacturing process as defined under Section 2(14-AA) of the ESI Act, the said expression requires to be noticed and analysed first. Section 2(14-AA) of ESI Act defines the meaning of the expression ‘manufacturing process’. It says that, whatever meaning that is assigned to that expression under the Factories Act, requires to be adopted for understanding the expression ‘manufacturing process’. This expression is defined under the Factories Act to mean “any process for making, altering, repairing, ornamenting finishing …. or adopting any article or substance with a view to its use, sale, transport, delivery or disposal, etc”. Apart from others, it only means, if an establishment Page: 2287carries on business of preparing a vehicle to facilitate in the transport business, that establishment would fall within the meaning of the expression transport, etc.”
11. The learned trial Judge while deciding the us before him rightly frames the issue, whether the applicant proves that it does not fall within the meaning of ‘shop’ or ‘motor road transport establishment’ and therefore, there is no liability on its part to pay the ESI contribution, but while answering this specific issue proceeds on wrong assumption that merely because the applicant is engaged in the business of transportation of goods on contract basis from one place to another, it would come within the meaning of the expression ‘manufacturing process’ since that expression includes the transportation, delivery and disposal of articles of goods and further, since it has engaged more than 20 employees for its activity of transportation, the applicant is an establishment as defined in the notification issued by the State Government. To my view there is fallacy in the reasoning of the learned trial Judge, when he concludes the expression ‘manufacturing process’ includes transportation. Section 2(k) of the Factories Act, defines the expression ‘manufacturing process’. It is an inclusive definition. It means, apart from others, any process or adopting any article or substance with a view to its use, sale, transport, delivery or disposal. The word ‘transport’ is not defined in the Act. The dictionary meaning of the word ‘transport’ is ‘to carry, move or convey from one place to another’. Therefore, in the context in which it is use only means an ‘establishment’ where it engages employees to make a vehicle fit for ‘transport’ or ‘suitable for transportation’ would fall within the meaning of expression ‘manufacturing process’. In my opinion, this is the only meaning that can be assigned to the expression ‘transport’ and therefore, the learned Trial Judge is not justified when he comes to the conclusion that since the activity of the applicant is transportation of goods on contract basis from one place to another, its activity falls within the definition of ‘manufacturing process’ as defined under Section 2(k)(1) of the Factories Act.
12. The learned Counsel Smt. Geetha Devi, for ESI Corporation submits that the applicant's establishment if it cannot be brought within the meaning of the expression ‘manufacturing process’, it certainly falls within the meaning of the expression ‘shop or road motor transport’. To buttress this argument, the learned Counsel relies Page: 2288upon the notification issued by the State Government in exercise of its powers under sub-section (5) of Section 1 of ESI Act, 1948, dated 5.1.1985
13. By virtue of the aforesaid notification, with effect from 27.1.1985, the State Government has extended the provisions of ESI Act, to the classes of establishment and the areas specified in the schedule to the notification. Clause 3 of the schedule speaks of shops, road transport establishments, etc., which are employing or were employing twenty or more persons for wages on any of the preceding twelve months. Therefore, the question that requires to be considered is whether applicant's establishment falls within the meaning of the expression ‘shop’ or ‘road motor transport establishment’. The applicant in his evidence admits that its activity is transportation of movable goods by road for hire with the assistance of transport carriers and it does not own transport vehicles, it is also admitted in the evidence that for its activity of transportation of goods it has engaged more than 20 employees. The word ‘shop’ has been construed and interpreted by Apex Court in several decisions. To notice a few, the Apex Court in the case of Hindu Jea Band, Jaipur v. Regional Director, Employees' State Insurance Corporation, Jaipur AIR 1987 SC 1166 was pleased to observe:
“We do not agree with the narrow construction placed by the petitioner on the expression ‘shop’ which appears in the notification issued under Section 1(5) of the Act which is a beneficient legislation. The word ‘shop’ has not been defined in the Act. A shop is no doubt an establishment (other than a factory) to which the Act can be extended under Section 1(5) of the Act provided other requirements are satisfied. In Collins English Dictionary the meaning of the word ‘shop’ is gives thus: “(i) a place esp. a small building for the retail sale of goods and services and (ii) a place for the performance of a specified type of work; workshop”. It is obvious from the above meaning that a place where, services are sold on retail basis is also a shop.”
14. In M/S Cochin Shipping Co. v. E.S.I Corporation (1992) 4 SCC 245 while considering whether carriers establishment carrying on clearing and forwarding operation is a ‘shop’ or not, the Apex Court was pleased to observe:
“that the appellant was carrying on stevedoring, clearing and forwarding operations. Clearing documents, even it be in the Custom house, was necessary for the export or import of goods. These services formed part of the carriers job. It could not be gainsaid that the appellant was rendering a service to cater to the needs of exporters and importers and others who wanted to carry goods. Therefore, the appellant's premises were held to be a shop carrying on a systematic economic or commercial activity.”
15. In International Ore & Fertilizers (India) Pvt. Ltd. v. E.S.I Corporation (1987) 4 SCC 203, while considering whether the commercial activities carried on in the premises, is shop or not, the Apex Court was pleased to observe:
“In our opinion, it is not actually necessary that the delivery of the goods to the purchaser should take place at the premises in which the business of buying or selling is carried on to constitute the said premises into a ‘shop’. The delivery of the goods sold to the purchaser is only one aspect of trading activities. Negotiation of the terms of sale, carrying on of the survey of the goods imports, arranging for the delivery of the goods sold, collection of the price of the goods sold, etc., are all trading activities. The premises where business is carried on by the petitioner is undoubtedly a shop as the activities that are carried on there relate only to the sale of goods which are imported into India. The petitioner acts as the agent of its foreign principals who are the sellers. The petitioner directs and controls all its activities from the premises in question. If orders are received at a place which ultimately fructify into sales and the resulting trading activity is directed from there that place comes to be known as a ‘shop’. In our view, the Employees Insurance Court placed a very narrow interpretation on the expression ‘shop’ while upholding the contention of the petitioner by confining ‘shop’ to a place where goods are actually stored and delivered pursuant to a sale. We agree with the decision of the High Court that while construing a welfare legislation like the Act and the notification issued thereunder a liberal construction should be placed on their provisions so that the purpose of the legislation may be allowed to be achieved rather than frustrated or stultified.”
16. Keeping in view the interpretation of the word ‘shop’ by the Apex Court in the aforesaid decisions, let me notice the fact situation Page: 2290in the instant case. The applicant in the instant case, is carrying on its business in its branch, office situate at ‘New Mission Road’, Bangalore. At that place, it accepts the goods of its customers to transport it to other places by road by engaging the services of private carriers. This activity is nothing but commercial activity of the applicant and all these activities are directed and controlled from its branch office situate at Bangalore. In view of this, the premises where such business and trading activities are carried on is a ‘shop’ as in ordinary parlance a ‘shop’ is a place where the activities connected with the buying and selling of the goods is carried on. In my opinion, in view of the observations made by Apex Court in the aforesaid decisions, it can safely be said that the business of the applicant is a ‘shop’ within the meaning of Clause 3 of the notification dated 5.1.1985 issued under Section 1(5) of the Act. Therefore, the impugned order of the ESI Court requires to be confirmed may be for a different reason. Accordingly, applicants appeal in MFA No. 3041/1995 and MFA No. 3042/1995 requires to be rejected.
17. Now coming to the ESI Corporation's appeal, in the grounds of appeal, it is urged that ESI Court has committed a serious error in granting interest at the rate of 6% per annum instead of granting at the rate of 12% in view of the amended provisions. In support of this assertion its learned Counsel brings to my notice the observations made by a learned Single Judge of this Court in the case of Regional Director, E.S.I Corporation v. Manjog Home Organisation ILR 1995 Kar. 3430, in the said decision, the Court was pleased to hold:
‘Section 39 of the Act makes provision for levy of interest on the contribution which has become due and which has not been paid. A defaulter in payment of the contribution cannot claim any right to pay interest at a particular rate. Interest is payable by virtue of the statutory provision which prescribes the rate. When the statute which prescribes the rate at which interest is payable is amended it follows that from the date of amendment interest is payable in respect of all contributions which remain unpaid till that date, at the amended rate. The contention that in respect of the amount due for a charging period prior to the amendment coming into force, the old rate of interest itself has to be levied till the payment is made is untenable Section 39(5) does not Page: 2291give any discretion either to the authority or to the Court to levy interest at a rate lesser than 12% after the amendment came into force. In all cases where contribution which has become due has remained unpaid, then interest will have to be paid at the statutory rate till the amount is paid. If the rate as provided under the statute was 6% upto 20.10.1989 and thereafter, if it has become 12%, then the interest will have to be paid at 6% from the date of default upto 20.10.1989 and thereafter at 12%. If the contributions continue to remain unpaid and if the statute is again changed and higher rate is prescribed then from the date such higher rate comes into force they may have to pay even at that rate.”
18. In my opinion, the observations made by this Court would assist the appellant in MFA No. 3081/1995. Section 39(5) of the ESI Act was amended by. Act No. 29 of 1989 with effect from 29.10.1989 The amended provisions provides for levy of interest on the contribution, which has become due and which has not been paid. When the statute which prescribes the rate at which interest payable is amended, as observed by learned Single judge in Manjoj Home and Organisations' case, it follows that from the date of amendment interest is payable in respect of all contributions which remain unpaid till that date, at the amended rate. In the instant case, contribution was payable by the applicant for the wage period 27.1.1985 to 31.12.1986 and from 1.1.1987 to 31.3.1987 The learned trial Judge has awaided only 6% interest on the contributions due for the aforesaid period. As observed by this Court in the aforesaid decision, the ESI Court should have taken into consideration the amended provisions which has come into effect from 20.10.1989 and should have awarded interest at the rate prescribed under the amended provisions. Since that has not been done by the ESI Court, that portion of the order of the ESI Court requires to be modified. Accordingly, the following:
(I) M.F.A No. 3081/1995 is allowed. The order of the ESI Court dated 9.2.1994 is modified in so far as the grant of interest on the contribution due from the defaulter applicant by directing the applicant to pay interest at 6% on the contribution due upto 20.10.1989 and thereafter at 12% till the date of payment.
(II) M.F.A No. 3041/1995 and M.F.A No. 3042/1995 are dismissed.
(III) No order as to costs.