- (1.)The issue that arises for our consideration and decision is, whether a 'race-club' would fall under the scope of the definition of the word 'shop', for the purposes of notification issued under sub-section (5) of section 1 of the Employees' State Insurance Act, 1948 (for short, "the ESI Act").
(2.)The matter is referred to three-Judge Bench of this Court as two-Judge Bench of this Court is of the view that the decision of two-Judge Bench of this Court in the case of Employees State Insurance Corporation v. Hyderabad Race Club, 2004 6 SCC 191 may require reconsideration. By the aforesaid judgment, it was observed by this Court that 'race-club' is an 'establishment' within the meaning of the said expression as used under Section 1(5) of the ESI Act. The order of reference reads as under:
" O R D E R

Heard learned counsel for the parties.

The short question involved in these cases is whether the appellant Turf Clubs are covered by the Employees' State Insurance Act, 1948 (for short 'ESI Act').

Under Section 1 sub-section (5) of the ESI Act all establishments are not automatically covered by the said Act but only such establishments as are mentioned in the notification issued by the appropriate Government under Section 1(5). This provision is not like sub-section (4) of Section 1 by which all factories are automatically covered by the ESI Act. The notifications issued under Section 1(5) in these cases use the word 'shop' and it has been held by the impugned judgments in these cases that the turf clubs are shops. Reliance in this behalf has been placed on the judgment of this Court in the case of Employees State Insurance Corpn. vs. Hyderabad Race Club, 2004 6 SCC 191.

With great respect to the aforesaid decision in the case of Hyderabad Race Club , we think that the said decisions requires reconsideration. In common parlance a club is not a shop.

The word 'shop' has not been defined either in the ESI Act nor in the notification issued by the appropriate government under Section 1(5).

Hence, in our opinion, the meaning of 'shop' will be that used in common parlance. In common parlance when we go for shopping to a market, we do not mean going to a racing club. Hence, prima facie, we are of the opinion that the appellant-club is not a shop within the meaning of the Act or the notification issued by the appropriate government.

In our opinion, the error in the judgment in the case of Hyderabad Race Club is that it has been presumed therein that all establishments are covered by the Act. That is not correct. Only such establishments are covered as are notified under Section 1(5) in the official gazette.

The High Court in the impugned judgment has placed reliance on the judgment of this Court in the case of Bangalore Water Supply & Sewerage Board vs. A. Rajappa & Ors., 1978 2 SCC 213.

In our opinion, reliance on the aforesaid decision is wholly misplaced. The definition of 'industry' in the Industrial Disputes Act is very wide as interpreted in the aforesaid decision. We cannot apply the judgment given under a different Act to a case which is covered by the ESI Act. Under various labour laws different definitions have been given to the words 'industry' or 'factory' etc. and we cannot apply the definition in one Act to that in another Act (unless the statute specifically says so). It is only where the language used in the definition is in pari material that this may be possible.

Hence, we are of the opinion that the decision of this Court in the case of Hyderabad Race Club should be reconsidered by a larger Bench. In the meantime, the respondents shall not raise any demand against the appellant-clubs.

Let the papers of these cases be placed before Hon'ble The Chief Justice of India for constituting an appropriate Bench."

(3.)By the said referral order dated 28.04.2009, it is the view of the two-Judge Bench of this Court that in view of the meaning as used in common parlance, the term 'shop' may not include racing clubs as stated by this Court in the Hyderabad Race Club case . Therefore, prima facie, the view of this Court is that the Appellant-Turf Clubs would not be a shop for the purpose of the ESI Act or notifications issued thereunder. It is further observed that the meaning of 'shop' will be that as would be used in common parlance.
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