Jahagirdar, J.:— The petitioner in this petition, Poona Industrial Hotel, Ltd. is a limited company having its registered office at Koregaon Road, Poona, and is owning an establishment known by the name of Hotel Blue Diamond also situated at Koregaon Road at Poona. The petition seeks to challenge the view taken by the Employees' State Insurance Corporation, having its regional office at Bombay, that the provisions of the Employees' State Insurance Act are applicable to the establishment known as Hotel Blue Diamond. In this petition the Regional Director of the Corporation has been added as the first respondent while the Corporation itself is the second respondent. The averments in the petition disclose that the hotel has 92 rooms for the residence of guests and it has been mentioned, partly proudly, that it is being groomed for five star classification. The primary object of the hotel is said to be provision of residential accommodation to the guests patronising the said hotel and in order to make the stay of the guests more comfortable, the hotel also provides food and beverages to its guests. The hotel employs 227 persons of whom 45 are working in the kitchen which prepares food as mentioned above for the guests of the hotel. In the kitchen itself there are 3 heaters, 1 griller, 2 toasters, 2 mixers, 2 water boilers, a bakery machine and an expresso machine among others. All these implements are run on electricity. In other words, the use of the power for the preparation of the articles of food in the kitchen is an admitted fact. Besides the abovementioned electrical appliances, there are also 7 gas ovens, 2 gas heaters and 3 gas burners all of which, as their names indicate, are run on gas. The petition also points out that the Municipal Corporation of Poona has given a certificate of registration under the Bombay Shops and Establishments Act, 1948, registering part at least of the hotel as a lodging house and part as a hotelling concern. The description of lodging house and hotelling is to be found against the column “kind of business” which is contained in the certificates of registration. The entire hotel itself is an establishment under the Bombay Shops and Establishments Act (hereinafter referred to as Shops and Establishments Act).
2. By a letter, dated 19 August, 1970, the Office of the Regional Director of Employees* State Insurance Corporation of Bombay informed the petitioner that the kitchen attached to the hotels and restaurants would be covered by the provisions of the Act with effect from 1 July, 1970, if they satisfy the provisions laid down in S. 2(12) of the Employees' State Insurance Act. With this information the petitioner was requested to furnish to the Office of the Regional Director all information in respect of the hotel/restaurant in a form which was enclosed with the said letter, dated 19 August, 1970. Thereafter, some correspondence ensued between the petitioner and the Employees' State Insurance Corporation. Ultimately, on 18 April, 1972, three letters were addressed by the Office of the Regional Director of the Corporation to the petitioner. First of them informed the petitioner that the principal employer of the factory covered under the Act was required to pay Employees' contribution at the rates specified in the First Schedule to the Act. It was noted in the said letter that the petitioner had not paid the employees' contribution for the period from 1 July, 1970 to 29 February, 1972. Certain other instructions for complying with the provisions of the Act were also given in the said letter. By another letter of the same date the petitioner was informed that an employer of a factory covered by the Act was required to pay under S. 73A of the Act. Employer's special contribution at the rate mentioned in the said letter. By a third letter of the same date the petitioner was informed about the necessity of submitting declaration forms under the Employees' State Insurance (General) Regulations. The petitioner sent a reply to the above mentioned letters and ultimately, on 19 August, 1972, the Office of the Regional Director of the Corporation informed the petitioner that since the petitioner's hotel employees were more than 19 in number and preparation of food and eatables was done in the hotel with the aid power, the hotel was a “factory” within the meaning of S. 2(12) of the Act. The petitioner was, therefore, required to start compliance with the provisions of the Act. If such compliance was not made, the petitioner was told that legal proceedings would be taken against petitioner and the contribution payable would be recovered through the Collector as an arrear of land revenue. At this stage it may be mentioned that in all these letters and the notices issued by the Employees' State Insurance Corporation there is a reference to the employees of the hotel and not merely to the employees of the kitchen.
3. We have already referred to the letter, dated 19 August, 1972, issued by the Office of the Corporation. Prior to that a letter, dated 16 March, 1972, was sent by the petitioner wherein it was contended on behalf of the petitioner that the hotel owned by the petitioner was not covered by the provisions of the Employees' State Insurance Act and there was in that letter a protest against the move of the Corporation to cover the hotel owned by the petitioner with the provisions of the Employees' State Insurance Act, with effect from 1 July, 1970. In another letter, dated 4 May, 1972, which was addressed on behalf of the petitioner to the Corporation, a contention was taken that the Corporation had not disclosed any reasons how the hotel owned by the petitioner could be treated as covered under the Employees' State Insurance Act. In these two communications sent by the petitioner to the Corporation the petitioner protested against the move of the Corporation to enforce the provisions of the Act against the Hotel Blue Diamond as a whole and there is no attempt to narrow the applicability of the Act to the kitchen which forms a part of the hotel. Similarly, in the petition itself in ground (a) it is specifically mentioned that:
“the said hotel can never be treated as a factory particularly in view of the fact that the said hotel is run by the petitioners predominantly for providing residential accommodation and the running of the kitchen in the said hotel is merely incidental and ancillary thereto. That the petitioner's said hotel is not a factory is clearly borne out by the fact that it is registered under the Shops Act which it would never have been had it been a factory in view of the provisions of S. 70 of the Shops Act”.
When we notice the prayer clauses also it is clearly seen that the challenge of the petitioner is to the applicability of the Employees' State Insurance Act to the Hotel Blue Diamond as such. We have mentioned these details because, as we will show a little later, a contention has been raised on behalf of the petitioner that the applicability of the Act should be confined to the kitchen alone and that such was the intention of the Employees' State Insurance Corporation. In view of the large correspondence that took place between the petitioner and the Corporation in which the provisions of the Employees' State Insurance Act are specifically invoked against the hotel itself and in view of the ground taken and the prayer made in the petition itself, the question that necessarily arises in this petition is whether Hotel Blue Diamond owned by the petitioner is covered by the provisions of the Employees' State Insurance Act.
4. The Employees' State Insurance Act, 1948, has admittedly come into force in the area in which the Hotel Blue Diamond is situated. Sub-section (4) of S. 1 of the said Act provides that it shall apply, in the first instance, to all factories other than seasonal factories. The appropriate Government, which means State Government in all cases where the establishments are not run by the Central Government or where the establishment is not a major port or a mine or an oil-field, has been invested with the power to extend the provisions of the Employees' State Insurance Act or any of them to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise. The extension of the provisions of the Act has got to be done with the approval of the Central Government and after giving six months' notice of the intention of applying the provisions by a notification issued in the official gazette. The use of the phraseology in Sub-sec. (5) of S. 1, viz., of extending the provisions of the Employees' State Insurance Act to any other establishment or class of establishments suggests, in our view, that the factories which are covered by the provisions of Sub-sec. (4) are also establishments. Sub-section (4) applies, without anything more to be done by the Government, to all the factories as defined in the Act, while the applicability of notification of the Government under Sub-sec. (5) refers to any other establishment or class of establishments. The establishment must, therefore, be taken to be generic which includes factory and other establishments. If the establishment is a factory as defined under the Act, it applies to the said establishment and it does not require any action on the part of the Corporation or of the Government to apply the provisions of the Act to the factory. In the present case, the Corporation has moved to apply the provisions of the Act on the basis that the petitioner's establishment, viz. Hotel Blue Diamond, is a factory as defined under the Act itself. It is not the contention of the Corporation, that they are applying the provisions of the Employees' State Insurance Act to the petitioner's establishment in accordance with the provisions contained in S. 1(5) of the Employees' State Insurance Act. The contention which has been taken in the petition, to which we will make a reference again, that there is a denial of natural justice because the Corporation has not informed the petitioner before applying the provisions of the Employees' State Insurance Act is, therefore, wholly misconceived. If the establishment of the Hotel Blue Diamond is a factory as defined in the Act, then the provisions of the Act automatically come into operation.
5. This petition seeks an appropriate writ from this Court requiring the respondents, viz., the Corporation and its Regional Director, to withdraw the notices, dated 18 April, 1972, and the letter, dated 19 August, 1972, to which we have already made a reference above. This relief is to follow a declaration that the Employees' State Insurance Act, 1948, does not apply to the petitioner in respect of the Hotel Blue Diamond. An alternative prayer has also been made requiring the Corporation to withdraw or cancel the notices and the letter referred to above to the extent that the same relates to the portion of the Hotel Blue Diamond excepting kitchen thereof. Sri Chinoy, the learned counsel appearing in support of the petition, has urged three main grounds for challenging the view of the Corporation that the provisions of the Employees' State Insurance Act apply to the Hotel Blue Diamond as such. In the first place, it was contended by him that before invoking the provisions of the Employees' State Insurance Act against the petitioner the Corporation did not give the petitioner an opportunity of being heard and of showing cause as to why the provisions of the Employees' State Insurance Act should not be made applicable to the hotel owned by the petitioner. Secondly, it was contended that in the kitchen of the hotel where food is cooked no manufacturing process takes place within the meaning of that word as defined in the relevant statute. Thirdly, it was contended that even if it is held that manufacturing process is employed, it is employed only in the kitchen which must be treated as a premises independent of the hotel and which may be covered by the provisions of the Employees' State Insurance Act. In other words, it is the kitchen and not other parts of the Hotel Blue Diamond that may be covered by the provisions of the Employees' State Insurance Act.
6. The first contention, viz., on the question of hearing the petitioner before invoking the provisions of the Act, is in fact, disposed of by what we have already stated regarding the different provisions contained in Sub-secs. (4) and (5) of S. 1 of the Employees' State Insurance Act. Sri Chinoy, however, referred to two judgments of the Allahabad High Court. One is Employees' State Insurance Corporation v. Uttar Pradesh Hotel and Restaurant, Ltd., [1975 All L.J 264], which has been subsequently followed by a Division Bench of the same Court in Civil Miscellaneous Writ Petition No. 4027 of 1971, The view taken in these two judgments undoubtedly supports the contention of Sri Chinoy. In our opinion, however, in view of the clear language of Sub-secs. (4) and (5) of S. 1 of the Employees' State Insurance Act, it is difficult to agree with the view taken in the judgments of the Allahabad High Court. If the hotel which is owned by the petitioner is a “factory” as defined in the Act, we do not see how the law requires that the petitioner should be heard before invoking the provisions of the Act against it. If there is a dispute about the contribution to be made by the petitioner, then, may be, that question has to be decided by the Employees' State Insurance Court under the Employees' State Insurance Act but as far as the application of the Employees' State Insurance Act which is being done on the basis that the petitioner's establishment is a factory, there is no provision at all that the petitioner should be heard on that question. On the other hand, if Parliament itself has laid down that the Employees' State Insurance Act applies to the factories as defined in the Act, it is not open to any authority under the Act to decide whether the Employees' State Insurance Act applies to the factories or not. In any case, since the petitioner has challenged the view taken by the Corporation that hotel industry is a factory in this petition itself which is being decided by us after hearing the petitioner, the grievance about not giving an opportunity of being heard can no longer survive.
7. As already mentioned above, the Employees' State Insurance Act applies without anything being done by any authority under the Employees' State Insurance Act to all factories other than the seasonal factories. The word “factory” has been defined in S. 2(12) of the Employees' State Insurance Act as follows:
“‘factory’ means any premises including the precincts thereof 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 with 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, or a railway running shad”.
The definition, as it stands, consists of two parts. The first part requires that 20 or more persons must be employed in the premises including the precincts thereof. The second part mentions that in any part of the premises manufacturing process must be carried on with the aid of power or is ordinarily so carried on. As we read the definition, 20 or more persons must be employed in the premises and manufacturing process must be carried on in any part of the said premises. It is not as if manufacturing process must be carried on in the entire premises wherein 20 or more persons are employed. It is enough if 20 employees are working in premises in a part of which manufacturing process is carried on or is ordinarily carried on. In the petition itself it has been mentioned that the hotel employs 227 persons of whom 45 are employed in the kitchen. This clearly shows that, subject to the question of the manufacturing process being carried on in any part of the premises, the hotel would necessarily be covered by the definition of “factory” contained in the Employees' State Insurance Act.
8. The phrase “manufactures process” itself has not been defined in the Employees' State Insurance Act but it has been mentioned that the expression “manufacturing process” shall have the meaning assigned to it in the Factories Act, 1948. Section 2(k) of the Factories Act defines the phrase “manufacturing process” as follows:
“‘manufacturing process’ means 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…”
That the preparation of the food in the kitchen of the hotel is done with the aid of power is admitted. Now, the question is whether manufacturing process is employed in the preparation of the food. In our opinion, the preparation of the food necessarily implies making of the food which is an article or substance as mentioned in the definition of the phrase “manufacturing process”. Several other articles which go into the preparation of the food are altered or cleaned or otherwise treated or adapted before the ultimate item of food emerges in the kitchen. We do not see how this process for making food or for washing, cleaning or otherwise treating or adapting raw materials with a view to prepare food cannot be treated as manufacturing process as defined in S. 2(k) of the Factories Act. It must also be noted that such manufacturing process is being employed for making of the food article either for use or for disposal, In our opinion, therefore, the processes which have been described in the petition itself, viz., use of the various electrical appliances involve manufacturing process as defined in Cl. (k) of S. 2 of the Factories Act.
9. Similar view has been taken by a Division Bench of the Madras High Court in Employees' State Insurance Corporation, Madras v. Spencer & Co., Ltd., [1978 — II L.L.N 328]. The question before the Madras High Court was identical with the question with which we are now concerned. The respondent was the owner of the hotel called “Connemara” which had 95 fully air-conditioned rooms. In the said hotel there was an electric motor used for peeling potatoes and, as in the Hotel Blue Diamond, in that hotel also there were electrical appliances which were used in the preparation of food. In the light of the definition of the phrase “manufacturing process,” the Madras High Court had no difficulty, as we have no difficulty, in holding that the preparation of food would be a manufacturing process. It is unnecessary to refer to the reasoning contained in the said judgment of the Madras High Court which is to be found in Para. 7 of the judgment because on an analysis of the section itself we have arrived at the same conclusion. In P. Laxmana and Sons v. Additional Inspector of Factories, [1959—I L.L.J 5], a single Judge of the Andhra Pradesh High Court has taken a similar view and has mentioned that:
“the language employed in Cl. (k) of S. 2 is wide enough to include the process of preparing foodstuffs and other eatables which are supplied by these establishments. It does satisfy the test of ‘making, altering or otherwise treating or adapting any article or substance with a view to its use, sale or disposal’…”
10. It has been contended be Sri Chinoy that it would be incongruous to apply the word “process” to the preparation or cooking of food. The very concept of process, according to Sri Chinoy, appears foreign to the method followed in the preparation of food. According to him, the use of the word “process” in relation to the preparation of the food is somewhat revolting to commonsense and, therefore, despite the authorities to which we have mentioned, it should not be held that the preparation of food involves manufacturing process. We are unable to agree with Sri Chinoy on this aspect. In the first place, we are dealing with a definition contained in the statute and if that definition read as a whole necessarily leads us to the conclusion that the preparatoin of food involves manufacturing process we cannot discard that view merely on the basis that it appears to be revolting to commonsense. We are also satisfied that the word “process” is in fact not revolting to commonsense if it is properly understood. The word “process” itself his not been defined in the Act and we may consult the dictionary for its meaning in the context in which it is used. Shorter Oxford English Dictionary, 3rd Edn., defines the word “process” as follows:
“A continuous and regular action or successive actions taking place or carried on in a definite manner, a continuous (natural or artificial) operation or series of operations; a particular method of operation in any manufacture”.
This is the sense in which one has to understand the word “process”. It means a continuous or regular action or succession of actions. It means an operation or a series of operations. It is a method followed Sot achieving a particular end or object. Understood in any of these natural senses, it is inevitable that we hold that the operation, method or activity carried on in the kitchen in the preparation or making or food is a process and since it is a process for making an article of food or for adapting an article with the object of its use or disposal, the preparation of food must necessarily involve a manufacturing process. In fact, one process may consist of several other processes especially in the preparation of food. Straud's Judicial Dictionary, 4th Edn, mentions the phrase “in any process” as being equivalent to “in any activity” under S. 151 of the Factories Act, 1937, in England.
11. But Sri Chinoy relying upon the provisions contained in the Factories Act of England cited a judgment of the Court of Appeal in Wood v. London County Council, [(1941) 2 All E.R 2???0]. The facts of the case before the Court of Appeal disclose that the Court was concerned with a kitchen which was attached to a mental hospital and the question was whether the appellant before the Court who was employed in the kitchen was an employee. The determination of that question necessarily involved determination of the question whether the kitchen attached to the mental hospital was a factory as defined in S. 151 of the Factories Act, 1937. Mackinnon, L.J, speaking for the Court, noticed that if it were held that kitchen were a factory some extraordinary results would follow. However, he also recognised that in construing an Act, one was not to be deflected from giving it its proper meaning by looking at and citing absurd lengths to which the definition may drive one. Despite this, however, he proceeded to hold that:
“…I do not think that it is improper to take into account the whole nature of these premises and the nature of the work which is going on in them …”
With this view it was held by the Court of Appeal that a kitchen was not a factory despite the fact that dishes were washed up in the kitchen and that the articles were altered, finished or cleaned. Proceeding further, the Court of Appeal held that a kitchen which was carried on in a large way by people running a restaurant for the purpose of trade or gain would not by reason of the words contained in the definition become a factory within the meaning of S. 151(9) contained in the English Act. We find it impossible to agree with the said judgment that the kitchen cannot be a factory by the very nature of the activities carried on in the kitchen. It is true that the definition contained in the English Act is some what analogous to the definition with which we are concerned, but, we are unable to agree with the view taken by the Court of Appeal in England because, in the first place, on a proper analysis of the definition contained in the Indian Act we are led to take a contrary view and, secondly, in that judgment there is. with great respect, practically no reasoning at all as to why, despite the nature of the activities mentioned in the definition, the kitchen was held to be not a factory.
12. Reliance was also placed by Sri Chinoy on Commissioner of Income tax v. Casino (Private), Ltd., [(1973) 91 I.T.R 289]. In the said case the Kerala High Court was concerned with the interpretation of the phrase “manufacturing or processing of goods” for the purpose of the Finance Act, 1958. In that case also the question was whether converting of raw materials into food in a hotel involved manufacturing or processing of goods. Admittedly, the term “manufacturing or processing of goods” had not been defined by the Finance Act, 1968. In the absence of the definition, the Division Bench thought it fit to adopt what it regarded as a commonsense meaning. We are unable to find any support in this decision for the contention of Sri Chinoy because in the present case the phrase “manufacturing process” has been defined in somewhat great detail and that definition, as we have pointed out above, necessarily includes a process employed for the purpose of preparation of food.
13. It was next contended by Sri Chinoy that the manufacturing of food, if it is held to be a manufacturing process, is not the dominant object or activity of the hotel of the petitioner and it was only incidental or ancillary to the main object of the hotel which was to provide residential accommodation to the patrons of the hotel. Hence, says Sri Chinoy, the entire hotel could not be regarded as a factory for the purpose of Employees' State Insurance Act. As a part of this agreement it was also contended that what is manufactured in the kitchen is a product for the inmates of the hotel and the product so manufactured is not the subject-matter of sale. Reference was made to a judgment of the Supreme Court in Northern India Caterers (India) Ltd. v. Lt. Governor Of Delhi., [(1978) 4 SCC 36 : A.I.R 1978 S.C 1591], wherein it has been held that the provision of meals to the residents of a lodging house does not amount to a sale within the meaning of Bengal Finance (Sales Tax) Act, 1941. We must state, however, that the question is not what is the dominant object of the establishment known as Hotel Blue Diamond; the question is whether the establishment is a factory as defined in S. 2(12) of the Employees' State Insurance Act. We have already, after a detailed analysis of the word “factory” as defined in the Employees' State Insurance Act and of the phrase “manufacturing process” as defined in the Factories Act, come to the conclusion that the establishment of the Hotel Blue Diamond is a factory. What is prepared in the kitchen is the result of a manufacturing process with a view to its use or disposal as defined in the phrase “manufacturing process”. We, therefore, do not regard that the judgment of the Supreme Court in Northen India Caterer case (vide supra), has any relevance to the point involved in the present petition. We are also of the opinion that the reliance placed by Sri Chinoy upon Khadya Peya Vikreta Sangh v. Chief Officer, Sangli Municipal Council, [(1977) 1 SCC 455 : A.I.R 1977 S.C 527], is equally misplaced. Reliance was placed upon this decision for the purpose of contending that the word “manufacturer” did not include restaurant keepers conducting the business of retail sale of food articles. In that case, the Supreme Court was concerned with the interpretation of the word “manufacturer” for the purpose of the Maharashtra Prevention of Food Adulteration Rules. In view of the totally different facts involved in that case and also of the difference in the definitions, we are unable to see any relevance of the said decision to the point which has a bearing upon the question before us.
14. A somewhat faint attempt was also made by Sri Chinoy to contend that in view of the fact that the provisions of the Shops and Establishments Act are applicable and have in fact been applied to the petitioner's hotel, the hotel ceases to be a factory. Section 70 of the Bombay Shops and Establishments Act, 1948, excludes the applicability of the provisions of the said Act to a factory which, according to S. 70 itself, would be governed by the provisions of the Factories Act. In this connection, Sri Chinoy referred to the judgment of the Supreme Court in B.P Hira v. C.M Pradhan, [(1959) 17 F.J.R 149], wherein the provisions contained in the Bombay Shops and Establishments Act and in particular S. 70 of the Act have been explained in some detail. It is unnecessary to refer to the said decision of the Supreme Court in B.P Hira (vide supra), case because there is no dispute that by virtue of the provisions contained in S. 70 of the Shops and Establishments Act a factory under the Factories Act will not, unless otherwise directed under the second proviso to S. 70, be governed by the provisions of the Shops and Establishments Act. We are in the instant case not concerned with the question whether the petitioner's establishment is governed by the provisions of the Factories Act.
The question is whether it is a factory covered by the provisions of the Employess' State Insurance Act.
15. It was brought to our notice by Sri Chinoy that the Government of Maharashtra has issued certain notifications in the exercise of the powers conferred upon it by S. 1 of the Employees' State Insurance Sub-sec. (5) Act. A notification bearing No. E.S.I 1874/1047.S., dated 7 November, 1974, has bean issued by the Government giving notice of its intention to extend the provisions of the Employees' State Insurance Act to, among others, hotels and restaurants situated in town like Bombay, Poona, Nagpur, etc. By a subsequent notification, dated 19 November, 1976, the Government appointed 27 November, 1976, as the date on which all the provisions of the Employees' State Insurance Act extend to hotels and restaurants in the various towns mentioned in the said notification. The latter notification is pursuant to the notice of intention which was given on 7 November, 1974. According to Sri Chinoy, if the Government has in 1974 given notes of its intention to apply the provisions of the Employees' State Insurance Act to the hotels and restaurants and has ultimately extended the provisions of the said Act to the hotels and restaurants in 1975, it is implicit that prior to the said date the provisions of the said Act did not apply to the hotels and restaurants. He contended that the notifications issued by the State Government under Sub-sec. (5) of S. 1 of the Employees' State Insurance Act were in the nature of subordinate legislation and the said notifications must be read as a part of the Act itself. In order to support this contention that the notification must be regarded as a part of the Act itself, he invited our attention to a judgment of the Supreme Court in State of Uttar Pradesh v. Babu Ram Upadhya ([A.I.R 1961 S.C 751. Thus judgment lays down that rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act. It is further laid down in the said decision that the rules are to be judicially noticed for all purposes of construction or obligation. The rules which are validly made under an Act or a notification validly issued in exercise of the powers contained in the Act have as much legal validity as the provisions of the Act. This cannot for a moment be disputed but we are unable to accept Sri Chinoy's contention that the action of the State Government in extending the provisions of the Act by exercising all the powers contained in S. 1(5) of the Employees' State Insurance Act to the hotels and restaurants necessarily involves an implicit legal position that prior to the said extension the provisions of the Employees' State Insurance Act did not apply to the hotels and restaurants. There are several reasons why this contention of Sri Chinoy cannot be accepted. In the first place, a view taken by an authority under the provisions of the Act cannot be regarded as always correct and cannot be binding upon this Court. Secondly, the description of the establishments to which the provisions of the Act have been extended by the State Government rules out the view which is being propounded by Sri Chinoy. By the notifications referred to above, the State Government has extended the provisions of the Act to the establishments including hotels and restaurants wherein 20 or more person are employed. This is necessarily different from the word “factory” contained in S. 1(4) of the Employees' State Insurance Act and it the hotel which answers the description of a factory is already covered by the provisions of the Act, the notification issued by the State Government will necessarily not apply to the said hotel. Indeed, the language used in the notification shows that the provisions may apply to establishments where power is not used in the manufacturing process. It is also conceivable that by extending all the provisions of the Act to the wider classes of hotels and restaurants, the intention might be to cover employees of a hotel who may not have been covered despite the fact that the hotel is held to be a factory under the provisions of the Employees' State Insurance Act. For these reasons we are unable to read with Sri Chinoy a meaning into the notifications which would suggest that prior to the notifications the provisions of the Act did not apply to the hotels which include the Hotel Blue Diamond.
16. Sri Chinoy then made an attempt to restrict the applicability of the Employees' State Insurance Act to the kitchen alone apart from the other premises of the hotel. He contended that the kitchen where certain manufacturing process is being employed is separate permises by itself or can be treated as such and, therefore, kitchen should alone be regarded as a factory and the provisions of the Act cannot and could not be extended to the other parts of the hotel. In order to support his contention that a room in a building can be premises by itself Sri Chinoy relied upon Fr???st v. Caslon and Frost v. Wilk???ns, [(1929) 2 K.B 138]. In that case a limited company had given one of its directors exclusive possession of a room in its premises by an agreement in writing and was charging rent for the same. The director had occupied the room solely for the purpose of ???arrying out his duties as director. A question arose whether the room which he had occupied constituted “premises” within the meaning of S. 1(3) of the Representation of the People (Equal Franchise) Act, 1928. The question was answered in the affirmative. We do not see how this decision will help the petitioner in view of the facts of the present case to which we will make a reference immediately. Before that we must also take note of the reliance placed by Sri Chinoy on the judgment of the Supreme Court in B.P Hira case, [(1959) 17 F.J.R 149], wherein the following sentense occurs;
“…It is conceivable that a kitchen attached to an establishment like a residential hotel may satisfy the definition of factory; but it seems to us that such an adjunct of an establishment is, prima facie, not intended by the Act to be treated apart and separately from the main establishment itself”.
B.P Hira case (vide supra), again is totally inapposite when we consider the facts of the present case. The question involved in that case was the applicability of the Factores Act vis-a-vis the applicability of the Shops and Establishments Act. We have already held in this judgment that the question whether the Factories Act applies to the establishment of the petitioner is totally irrelevant while considering the provisions of the Employees' State Insurance Act. Similarly, for the same reasons, we do not think that the reliance placed upon B.P Hira case (vide supra), by Sri Chinoy is appropriate. A room no doubt can by itself constitute premises but it can also be a part of a larger building which can be called premises. As the averments mentioned in the petition itself disclose, the kitchen is a part of the building which houses the hotel where residential accommodation, to the patrons of the hotel is provided. It has been further mentioned, and correctly, in our opinion, that the hotel provides food and beverages to its guests with a view to render the stay of the guests more comfortable. There is not only geographical unity but unity of ownership between the hotel and the kitchen in which food for the guests of the hotel is manufactured. In these circumstances, we do not see how kitchen can be carved out as a separate geographical or legal entity and treated as separate premises from the hotel as a whole. On the contrary, on the facts of this case, it is inevitable that the kitchen must be treated as part of the hotei in view of the main function which has been assigned to it, viz., the preparation of food for the purpose of catering to she needs of the patrons accommodated in the hotel. Since we have taken the view that the establishment called “hotel” is to be taken as premises, where 20 or more persons are admittedly employed and in any part of which, viz., kitchen, food is manufactured by a process which we have accepted as a manufacturing process, it is inevitable that the Hotel Blue Diamond must be held to be a factory within the meaning of S. 2(12) of the Employees' State Insurance Act. As such it is covered by the provisions of the said Act.
17. Some observations contained in the judgment of the Supreme Court in Nagpur Electric Light and Power Company, Ltd. v. Employees' State Insurance Corporation, [1967 — II L.L.N 40], were sought to be pressed into service in support of the contention that a part of an establishment can be treated separately as premises. In the said case, the Court was concerned with the question whether some of the persons employed in the Nagpur Electric Company were employees within the meaning of that word in the Employees' State Insurance Act. In Para. 5 of the judgment it was pointed out that any premises constituted a factory if 20 or more persons are working and in any part thereof a manufacturing process is being carried on with the aid of power. Referring to an earlier decision of the Supreme Court in Ardershir H. Bhiwandiwala v. State of Bombay, [1961—II L.L.J 77], it was pointed out that the premises constituting a factory could be a building or open land or both. In Para. 7 of the judgment the Supreme Court held that the process of transforming electrical energy from the high to low potential and the process of transmitting energy through supply lines were both manufacturing process. Thereafter the following sentences occur:
“In a part of the premises occupied by the company, two processes are carried on with the aid of power by means of electrical gadgets and other devices. Qn the premises more than 20 persons were and are working. No part of the premises is used for purposes unconnected with the manufacturing processes”.
The last sentence in the above quotation prompted Sri Chinoy to argue that if some part of the premises are unconnected with the manufacturing process then that part could not be held to be covered by the definition of “factory” contained in the Employees' State Insurance Act. In our opinion, the observations of the Supreme Court do not lend support to the view which Sri Chinoy has put forth. In that case, the question whether certain persons were employees' for the purposes of the Act was to be decided. An argument was obviously advanced that certain part of the premises was used for a purpose unconnected with the manufacturing process. On facts this argument was repelled by the sentence on which, heavy reliance is being placed by Sri Chinoy. In the present case, we are not concerned with the question whether particular persons are employees or not; the question is whether the establishment which employs 20 persons or more and in a part of which manufacturing process is being carried on is a factory. Our answer has been in the affirmative.
18. In the result, we must hold that the Hotel Blue Diamond which has a kitchen manufacturing items of food and which is owned by the petitioner, is a factory within the meaning of that word as defined in S. 2(12) of the Employees' State Insurance Act and the provisions of the said Act will apply to the said establishment. No relief claimed by the petitioner, therefore, can be given. Rule discharged with costs. At this stage Sri Chinoy applies for a certificate under Art. 133(1) of the Constitution and the same is refused.
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