GUMAN MAL LODHA,J. - (1.) THIS is an appeal under Section 82 of the ESI Act against the judgment dated 19 April, 1979 passed by the Employees State Insurance Court, Jaipur in ESI Case No. 18 of 1978.
(2.) THE appellant filed an application under Section 75 of the ESI Act on 28 -10 -1976 before the ESI Court Jaipur praying that the Ganpati Printing Works, Pali was not covered under the provisions of the ESI Act and therefore the respondent could not demand the ESI contribution as a sum of Rs. 4,738.82 declared to be due in the appellant and the declaration was sought that the petitioner was not liable for any contribution under the ESI Act and no amount could be recovered from it. Mr. Calla's principal contention is that since by notification dated September 25, 1975 there has been exclusion and this has been accepted by the ESI court therefore the finding that the appellant is included as an establishment is contradictory and cannot be sustained. In support of this he referred to the notification No. 1 and also the judgment para No. 8, 9 and 10.
(3.) I have carefully gone through the notification and also the judgment relevant portion as pointed out by Mr. Calla. It is to be noticed that the finding of fact of the ESI court is that the establishment of the appellant as per Ex. A/1 is employed in process for making colour. This particular finding of fact of the ESI court is not to be considered with the notification. While considering the notification it must not be forgotten that Section 1 of the Employees State Insurance Act contains a provision in Sub -clause (iv) by which it applies to all factories other than general factory Clause (v) of Section 1 empowers the Central Government to issue notification for extending the provisions of this Act and of them to any other establishment or class of establishment industrial commercial agricultural or otherwise, obviously the factories in general are covered by Clause (iv) of section and they were covered immediately on coming into force of this Act. Clause (v) is additional empowering power given for the purpose of extending the provisions of this Act to other establishment industrial commercial agricultural otherwise. It means that the extension of this provision of the Act would be to those establishments which were not covered earlier by Clause (iv). It is to make this patent and clear that notification expressly mentioned exclusion of them. This exclusion is not intended to be total exclusion but is meant to clarify the position that by virtue of this notification the new adoption or expansion would apply to those factories or establishments which are not covered earlier and those already are covered by Clause (iv) would already remain by virtue of Clause (iv) and not this notification. In this view of the matter, I have no hesitation in holding that the Clause (v) supplements Clause (iv) of the Act and Clause (v) empowers the State Government by notification to extend the application of this Act to those establishments which are not covered earlier by Clause (iv). In the notification the provision for exclusion of the factory is meant to cover these areas only which are already covered and there should not be so overlapping by the inclusion of those factories which have already been covered by Clause (iv).;