LexBOMBAY ANAND BHAVAN RESTAURANT versus THE DEPUTY DIRECTOR, ESI CORPORATION AND ANR.
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[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 KAT JU 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 8 Insurance Act, 1948 and whether the use of LPG gas is 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
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