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TMI Blog2016 (2) TMI 1362X X X X Extracts X X X X X X X X Extracts X X X X ..... estions on merit. 3. It was submitted on behalf of Royal Western India Turf Club Ltd. that temporary staff engaged on race-days for issue of tickets, would not be covered by the definition of the "employee" under Section 2(9) of the Employees State Insurance Act, 1948. It was also submitted that in view of the consent terms filed in Application No.16/1976 by the Turf Club before the ESI Court, Bombay, the casual labour engaged on race track were not to be covered under the ESI Act. It was further submitted that in view of Rule 2A of the Employees' State Insurance (Central) Rules, 1950, contribution is required to be made for a period as may be prescribed in the Regulations and in view of Regulations 29 and 31 of the Employees' State Insurance (General) Regulations, 1950, it would be difficult to calculate the contribution for the employees who work casually on the racing days. It was also submitted that the direction issued by the High Court not to recover the amount before 1987 does not call for any interference in the appeal filed by ESI Corporation, for which reliance has been placed on a decision of this Court in Employees State Insurance Corporation v. Hyderabad Race Club (20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person so employed whose wages (excluding remuneration for overtime work) exceed such wages as may be prescribed by the Central Government a month: Provided that an employee whose wages (excluding remuneration for overtime work) exceed such wages as may be prescribed by the Central Government at any time after (and not before) the beginning of the contribution period, shall continue to be an employee until the end of that period;" The definition of "employee" is very wide. A person who is employed for wages in the factory or establishment on any work of, or incidental or preliminary to or connected with the work is covered. The definition brings various types of employees within its ken. The Act is a welfare legislation and is required to be interpreted so as to ensure extension of benefits to the employees and not to deprive them of the same which are available under the Act. 6. Section 39 deals with the contribution payable under the Act with respect to the employee in respect of each "wage period" shall ordinarily fall due on the last day of the wage period, and where an employee is employed for "part" of the wage period or is employed under two or more employers during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f land revenue. 7. Section 42 deals with the general provisions as to payment of contributions. It is provided in section 42 that no employee's contribution shall be payable by or on behalf of an employee whose average daily wages are below such wages as may be prescribed by the Central Government. Sub-section (2) of section 42 again provides that contribution of the employer as well as the employee shall be payable by the principal employer for the wage period in respect of the whole or part of which wages are payable to the employee and not otherwise. The provision does not prescribe that employee has to work for a particular period for availing benefit of the said provision. 8. Reliance has been placed on behalf of the Turf Club, on the definitions of wages and wage period. Sections 2(22) and 2(23) dealing with wages and wage period are as follows : "2(22). "wages" means all remuneration paid or payable in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled and includes any payment to an employee in respect of any period of authorised leave, lock-out, strike which is not illegal or layoff and other additional remuneration, if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Director, Employees' State Insurance Corporation, Madras v. South India Flour Mills (P) Ltd. [AIR 1986 SC 1686] has overruled the decision of the Madras High Court in Employees' State Insurance Corporation v. Gnanambikai Mills Ltd. (1974) 2 Lab. Law Journal 530 (Mad.) in which the High Court laid down that though casual employee may come within the definition of the term "employee" under section 2(9) of the Act, yet they may not be entitled to sickness benefits in case their employment is less than the benefit period or contribution period and that it does not appear from the Act that casual employee should be brought within its purview. This Court while overruling decision of High Court held thus : "8. Section 39 provides for contributions payable under the Act. Sub-section (4) of Section 39 provides as follows: "The contributions payable in respect of each week shall ordinarily fall due on the last day of the week, and where an employee is employed for part of the week, or is employed under two or more employers during the same week, the contributions shall fall due on such days as may be specified in the regulations." 9. Sub-section (4) clearly indicates employment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt have rightly taken the view that casual employees are employees within the meaning of the term "employee" as defined in Section 2(9) of the Act and, accordingly, come within the purview of the Act. 11. Indeed Dr. Chitaley, learned counsel appearing on behalf of the respondent company in Civil Appeal No. 819 (NL) of 1976, frankly concedes that it will be difficult for him to contend that casual workers are not covered by the definition of the term "employee" under Section 2(9) of the Act. He, however, submits that in the instant case the work in which the casual workers were employed by the respondent company, namely, Shri Shakthi Textiles Mills Pvt. Ltd., not being the work of the factory or incidental or preliminary to or connected with the work of the factory, such workers cannot be employees within the meaning of Section 2(9) of the Act. The contention of the learned counsel is that the work of the factory being "weaving", an employee within the meaning of Section 2(9) must be employed on any work incidental or preliminary to or connected with the work of weaving that is carried on in the mill or factory. Counsel submits that the work of construction of factory buildings c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged on race track, temporary staff engaged on race days for issue of tickets/dividends were not covered. In the aforesaid case the period involved was as specified in the notification dated 26.2.1976 which was prior and not related to the period in question 1978-79 to 1982-83 involved in C.A. No.49/2006 and in other appeals also the period is subsequent thereto. After issuance of the notification dated 18.9.1978 by the Government of Maharashtra, the remaining departments of Turf Club which were left out earlier were specifically covered under the purview of the ESI Act. Thus, the demand in the instant case is based upon the notification dated 18.9.1978 which left no room to entertain any doubt that the establishments of the aforesaid department in question were also covered under the ESI Act. Thus, no benefit can be derived by the consent terms which related to the earlier period when notification dated 18.9.1978 had not been issued. Notification has statutory force and agreement cannot supersede it. It is also clear that several departments of race club were covered under the notification issued in 1968. Thus, the submission raised on the basis of consent terms is hereby rejected. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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