LexM/S. RAJAKAMAL TRANSPORT AND ANR. versus THE EMPLOYEES STATE INSURANCE CORPORATION, HYDERABAD
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A B M/S. RAIAKAMAL TRANSPORT AND ANR. v. THE EMPLOYEES STATE INSURANCE CORPORATION, HYDERABAD APRIL 17, 1996 [K. RAMASWAMY AND S.P. BHARUCHA, JJ.j Employees' State Insurance Act, 1948 : C S.2(9)--Canier~Engaging hamalis'-Collecting charges from cus- D E F G tomers and paying to hamali~Supe1vising of loading and unloading-Hence liable to contribute towards the insurance benefit of workmen-Plea of non- applicability of the Act on the ground that local Act is applicable-No mate1ial placed before High Cowt or Supreme Court-Hence that question not gone into. Royal Talkies, Hyderabad & Ors. v. Employees State Insurance C01pn., (1979] 1 SCR 80; E.S.l. Cmpn. v. South Flour Mills, [1986] 2 SCR 863 and Kirloskar Brothers Ltd. v. Employees' State Insurance Co1pn., (1996) 2 SCALE 1, relied on. CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5376-77 of 1995. From the Judgment and Order dated 7.2.85 of the Andhra Pradesh High Court in C.M.A. Against Order Nos. 297 and 868 of 1981. C. Sitaramaiah and B. Parthasarthy for the Appellants. R. Venugopal Reddy, S.W.A. Qadri and C.V. Subba Rao for the Respondents. The following Order of the Court was delivered : These appeals arise from the order of the Division Bench of the Andhra Pradesh High Court dated February 7, 1985 made in C.M.A. Nos. 868 and 297/81. The admitted facts are that the appellants had engaged hamalis for loading and unloading of the goods undertaken by them for H carriage as carriers. The respondent has applied the Employees' State 410 ' '· ~1 RAJAKAMAL TPT. v. E.S.I. CORPN. 411 Insurance Act, 1948 (Act No. 34 of 1948) (for short, the 'Act') to the A appellant's establishment and called upon them to pay their contribution for the periods mentioned in the notice served on them with interest at 7% thereon. The appellants have disputed the liability and made an application for determination i:nder Section 76 of the Act. The Insurance Court had held that the hamalis are employees within the meaning of Section 2(9) of B the Act. Though the appellants collect the charges from the customers and pay the amount to the hamalis at the piece rate for the work they do, they have got supervision of loading and unloading by the hamalis. The hamalis are not appo_inted or controlled by any other agency. Accordingly appel- lants are liable to contribute the amount called upon towards the insurance benefit of the workmen under the Act. The appeals came to be dismissed C by the High Court. Thus these appeals by special leave. Shri C. Sitaramiah, learned senior counsel appearing for the appel- lants contended that there is no relationship of master and servant; no regular salary is paid by the appellants to the hamalis and there is no fixed D hours of works for the hamalis. Under those circumstances, the hamalis cannot be considered to be the employees nor the appellants be treated as employer under the Act. We find no force in the contention. Section 2(9) of the Act defines "employee" to mean any person employed for wages in or in connection with the work of a factory or E establishment to which the Act applies. Clause (ii) envisages that they need not necessarily be directly employed by the employer. Those who are employed by or through an immediate employer on the premises of the factory or establishment or under the supervision of the piincipal employer or his agent on work which is ordinaiily part of the work of the factory or F establishment or which is prelimiuary to the work carried on in or incidental to the purpose of the factor~ or establishment is an employee within the meaning of Section 2(9) of the Act. The controversy is no longer res integra. This Court in. Royal Talkies, Hyderabad & Ors. v. Employees State G Insurance Corpn., [1979] 1 SCR 80, was called upon to consider whether workmen engaged in the cycle stand and canteen of a cinema theater were employees of the theater within the meaning of Section 2(9) of the Act. This Court, on interpretation, hdd that the reach and range of the defini- tion is apparently wide and deliberately transcends pure contractual relationships. In the field of labour jurisprudence, welfare legislation and H 412 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R. A statutory construction which must have due regard to Part IV of the Constitution, a teleological approach and social perspective must play upon the interpretative process. The primary test in the substantive cl
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