R. P. Sondurbaldota, J. - (1.) This appeal preferred by the Regional Director, E.S.I. Corporation was admitted on the following substantial questions of law: (A) Whether the coolies/hamalies engaged for loading and unloading goods of the respondent in connection with their business are covered within the scope of the term employee as defined under Section 2(9) of the employee's State Insurance Act and whether the ratio as laid down by the Bombay High Court in the Parle Bottling case would not be binding ratio in view of the Judgment of the Apex Court in the case of Rajkumar Transport and South India Flour Mills case. Whether the ratio laid down by the A.P. Court in E.I.D. Parry case is per incurium considering the ratio laid down by the Hon'ble Supreme court in Rajkamal case (B) Whether the E.I. Court has ignored and by passed the basic norm governing coverage of the establishment and the definition of employee as contained in Section 2(9) of the E.I. Act and the relevant test that if the hamalies/coolies casual employees worked in connection with the work of the establishment they would have to be treated as employees within the meaning of the expression employee as contained in Section 2(9) of the E.I. Act.
(2.) The factual matrix of the appeal is that the respondent is a partnership firm dealing in the business of selling medicines and drugs. It has branches at Margao and Mapusa in the name and style of Drogaria Ananta Panaji and Drogaria Ananta Mapusa. The total number of employees reflected in the returns filed by the respondents were more than 31 during the period 1990-92. The establishment of the respondent was inspected by ESI inspector on 6th November, 1992. Thereafter, notice dated 6th April, 1994 came to be served upon it under Section 45- A of Employees State Insurance Act (hereinafter referred to as 'ESI Act') calling upon it to show cause as to why the contribution as per the statements enclosed therein should not be recovered from it. The respondent failed to respond in any way to the show cause notice. It neither paid the contribution as demanded under the notice nor sent any reply thereto. It also did not appear before the Regional Director of the Corporation when personal hearing was afforded to it. The appellant then passed orders dated 29th December, 1995 calling upon the respondent to pay contribution of Rs.5,608/- for the period April, 1990 to March 1992 and Rs.2,118/- for the period 1990-1991 along with interest thereon. The demand of contribution had been made in respect of; (i) the coolie charges or freight charges and (ii) towards repair and maintenance charges. The respondent challenged the demand by filing application under Section 75 of ESI Act contending that it was not liable to pay any contribution in respect of coolie and freight charges as also the repair and maintenance charges. The ESI Court, relying upon decision of this Court in the case of Parle Bottling Company Pvt. Ltd. V/s. The Regional Director, ESIC, Bombay, 1989 2 CurLR 229 held that no contribution was payable by the respondent in respect of the freight charges. As regards the amount claimed on repairs and maintenance the ESI Court was of the opinion that the order passed by the Corporation being a non-speaking order could not be sustained. For these reasons it allowed the application of the respondent under Section 75 and 77 of the ESI Act. Being aggrieved by the order the Regional Director, ESI Corporation has filed the present appeal.
(3.) Ms. Agni, the learned counsel for the appellant submits that in the impugned order the ESI Court refers to decisions of the Apex Court in M/s. Rajkamal Transport and another V/s. The Employees State Insurance Corporation, Hyderabad, 1996 9 SCC 644, Andhra Pradesh High Court in E.I.D. Parry (India) Ltd., Vijayawada V/s. Employees State Insurance Corporation and another, 2002 2 CurLR 349 and of this Court in Parle Bottling Co. Pvt. V/s. The Regional Director, E.S.I.C., Bombay, 1989 2 CurLR 229, but the appreciation of these three decisions by it in the impugned order is not correct. According to her the decisions have not been read in the correct prospective. On proper reading of the decisions the respondent will have to be held liable to pay the contribution. She also submits that the ESI Act being a beneficial legislation will have to be read and interpreted in favour of the employee in the event of possibility of different interpretations.;