- (1.) This appeal under section 82 of the Employees' State Insurance Act, 1948, (hereinafter called the Act) arises out of an application under section 75 of the Act, which has been allowed by the Employees' Insurance Court, Chandigarh, vide order dated March 5, 1979.
(2.) The respondent, M/s. Malhotra & Co., Sector 19, Chandigarh, is a firm registered under the Indian Partnership Act, and is carrying on the business of petrol pump and service station in Sector 19, Chandigarh. Under section 40 of the Act, a principal employer of a factory or establishment covered under the Act, is required to pay the contribution at the rates specified in the First Schedule to the Act. The respondent was surveyed by the ESI Inspector and on the basis of his report, it was found that the respondent was covered under the Act and was liable to pay . the contribution. Consequently, notice was issued to the respondent for paying a sum of Rs. 4704/-, as a contribution payable in respect of the employees of the respondent. The respondent challenged the validity of the order passed by the Corporation, the appellant. It was pleaded that the number of the respondent's employees was only eight and had at no point of time, exceeded the same. Out of those eight employees, two were part-time, that is, a Mali (gardener) and a sweeper who got a small amount of salary and cannot be considered as the employees of the respondent. It was also pleaded that the respondent had no connection with one Mr. Bali who did repair work of motor vehicles with the help of certain persons working independently and was merely a licensee of the respondent and no remuneration or salary was paid to him by the respondent. The stand of the appellant covering the respondent under the Act was against law and facts and thus, the respondent, had filed the petition under section 75 of the Act, for a declaration to the effect that the order, dated January 24,1978, requiring it to pay Rs. 4704/-, as contribution, was illegal, null and void and the respondent was not covered under the Act. That application was resisted on behalf of the appellant. It was pleaded that in pursuance of the survey report of the Insurance Inspector, the respondent was covered under the Act, as according to the survey report, there were nine employees in August September and October, 1976, and five other employees were also found employed in the premises of the respondent excluding the two mechanics one for the repairs of the motors, and the other for the repairs of the scooters. The stand of the appellant was that there were 14 employees of the respondent and thus, the respondent was covered under the Act, and was, thus, liable to pay contribution. It was specifically pleaded that the persons employed through mechanics were under the control and supervision of the respondent. On the pleadings of the parties, the following issues were framed: 1. Whether the plaintiff firm is not covered under the provisions of the Employees State Insurance Act, as alleged? 2. Whether the impugned order, dated January 24/25,1978, passed by the respondent demanding Rs. 4704/- as contribution is illegal null and void as alleged? 3. Whether the petition is not maintainable? 4. Relief On issues Nos. 1 and 2, discussed together, the trial Court, came to the conclusion that the appellant could not demand contribution from the respondent because the respondent did not come within the ambit of an establishment as defined in the notification, dated August 30, 1976, published in the Chandigarh Administration, Gazette dated August 30,1976, and thus, the demand raised by the appellant was illegal and void. As a result of this finding, the application was accepted and it was declared that the order, dated January 24, 1978, requiring the respondent to pay Rs. 4704/- as contribution was illegal and null and void. Feeling aggrieved against the same, the appellant, has come up in appeal to this Court.
(3.) The learned counsel for the appellant, vehemently contended that issues Nos. 1 and 2 have been wrongly decided by the Employees' Insurance Court. The two mechanics who were working on the premises of the establishment were covered under the definition of 'employee' as given in section 2 (9) (ii) of the Act. According to the learned counsel, the mechanics who were working on the premises of the establishment were covered under the definition of "immediate employer" also as defined under section 2 (13). Under these circumstances, the principal employer, that is the respondent, was liable to pay contribution under sections 39 and 40 of the Act. It was further contended that the work of repairs done at the premises with the permission of the principal employer is closely connected with the main business of the establishment which is a petrol pump with a service station. In any case, it is incidental to the purpose of the petrol pump and the service station. In support of this contention, reliance was placed on Royal Talkies, Hyderabad V/s. Employees State Insurance Corporation, 1978 AIR(SC) 1478. On the other hand, the learned counsel for the respondent contended that an appeal under section 82 of the Act lies only on a substantial question of law and since no substantial question of law is involved in the present case, the appeal as such, is not competent and is liable to be dismissed. He also contended that the two mechanics doing the repair work were neither immediate employers, as contended by the learned counsel for the appellant, nor they were employees in any way as contemplated under the Act, as they had no relationship of any kind so far as the business of the respondent was concerned.;