Susanta Chatterji, J. - (1.) The present Rule was issued on 7-6-76 at the instance of the Bata India Limited praying inter alia, to issue a Writ of Mandamus commanding the respondents to forbear from giving effect and/ or taking any steps pursuant to and/or from applying or enforcing the provisions of the Employees' State Insurance Act, 1948 to the petitioner in respect of its registered and head office at No. 30, Shakespeare Sarani, Calcutta and branch offices and sales shops and sales depots situated in the different States of India and for other consequential reliefs as thereunder stated.
(2.) It is alleged that the Head Once of the Company is situated at No. 30 Shakespeare Sarani, Calcutta and Sales Office/Sales Organisation is situated at No. 6A, S. N. Banerjee Road, Calcutta. The factories, Head Offices and Sales Organisations are completely distinct separate organisations under the organisational setup of the company. Rata India Limited, an existing Company has three factories at Batanagar, Batagunge and Faridabad. Said three factories have their respective separate administrations. It is stated further that the said three factories of the petitioner are registered under the Factories Act, 1948 they are completely distinct and independent establishments from the registered and/or sales depot and/or sales offices. According to the petitioner, the said Employees State Insurance Act, 1948 as amended in the year 1966 and the statements of objectives and reasons of the said Act as would appear from the Act itself and by reason of the provisions of Section 1(4) of the said Act, the said Act is to apply in the first instance to-all factories including the factories pertaining and belonging to the Government other than seasonal factories. The main factory of the petitioner is situated at Batanagar which is a non-implemented area and the petitioner has two other branch factories, at Batagunge and Faridabad. The administrative offices of the said factories are also situated in the said factories of the petitioner. Under the provisions of Section 1(5) of the said Act, the appropriate Government may in consultation with the E.S.I. Corporation, the respondent No. 1 herein, set up under the said Act and where the appropriate Government is the State Government, with the approval of the Central Government, after giving 6 months' notice of its intention of so doing, by a Notification in the Official Gazette, extend the provisions of the said Act or any of them to any other establishment or class of establishment, industrial, commercial, agricultural or otherwise. The petitioner has laid emphasis upon the fact that the provisions of the said Act cannot be made applicable to any establishment other than a factory as defined in the said Act unless an appropriate Notification is issued under Section 1(5) of the said Act by the appropriate Government extending the application of the provisions of the said Act to such establishment. Stating all these facts in details, the writ petition has been filed on the ground that the provisions of the said Employees State Insurance Act did not apply to the petitioner in respect of any person employed in its institution and said registered and Head Office at Calcutta and Sales Offices of Sales Shop/Sales depot situated in the different States of India inasmuch as the said provisions only apply to a Factory or to an Establishment to which they have been extended but the said Head Office and Sales Offices are neither as such. The provisions of the said Act have not been extended to the main factory of the petitioner situated at Batanagar and the persons to be insured under the said Act are persons employed in the factories of the establishment to which the said Act applies and none of the persons employed at the Head, Branch aces, Sales Shops and Sales Depot/Office fall within such category.
(3.) Mr. Ginwalla, learned counsel appearing for the petitioner company has strongly argued that the operation of the said Employees State Insurance Act as indicated under Section 1 thereof, could not be and was not altered by the amendment of the definition of the word "employee" as contained in Section 2(9) of the said Act and the employees of the said Head Office, Sales Office, Sales Shops/Depot are not employees in the said factories who are required to be insured under the charging Section 38 of the said Act.;