G. M. LODHA, J. - (1.) BOTH these appeals are disposed of by a common order as prayed by the learned counsel for the parties. The simple reason for this prayer is that the question on which the entire debate had central round is whether once the State Government had issued a notification classifying the establishments in three categories for the purposes of application of the Employees State Insurance Act, it is permissible to hold that particular establishment can fall in more than one category of this notification.
(2.) THE precise question to make it more clear is that whether a case of restaurant which normally covered by clause (iii) in terms speaks about hotel and restaurants can also be covered by clause (i) and (ii) of this notification. Mr, Maloo and Jain appearing for the two restaurants proprietors have argued that once the State Government has classified the establishments in the three catego-ries and so far as restaurants are concerned, categorised them in clause (iii) md for the purposes of treating them as an establishment for application of the E. S. I. Act kept it a condition precedent that there must be 20 or more persons employed in it, then it is not permissible to apply clause (i) and (ii) to restaurants, Mr. J. P. Gupta, learned counsel for the Corporation on the contrary submit that a particular establishment may fall in more than one categories because it may be an establishment, which can be covered by clause (iii) and it can be covered by clause (i) and (ii) or even by the clause defining the factory under the E. S. I. Act. I have given my thoughtful consideration to the rival contentions of the learned counsel for the parties- In the present case it appears that both restaurants Kalinga and Coffee House at Jodhpur had employed less than 20 persons during the particular year for which the demand of contribution had been made by the Corporation. That being so it could not fall under clause (iii) because clause (iii) of the notification expressly mentions that the establishment must have 20 or more persons employed for wages on any date of the proceeding 12 months. Then it classifies by mentioning names of types of establishment, they are hotels, restaurants, shops, road motor transport establishments and cinemas. Now normally if 20 or more persons are employed in a restaurant, then irrespective of the fact whether it uses power or not and irrespective of the fact whether it is involved in manufacturing process or not it would be covered by clause (iii ). The question is what is to happen where the number of employees is less than 20 as is happened in the present cases. In my opinion the case can squarely be covered by clause (i) in case it is found even though the persons are employed less than 20 but they were 10 or more and further that in the restaurents in which they were working the manufacturing process was being carried on with the aid of power. Once it is established that the power is being used for manufacturing the various sweet or the preparations for serving the customers in restaurants then clause 1 would apply. It is not permissible to exclude hotel and restaurants from the application of clause (ii) simply on the ground that clause (iii) is a specific express particular provision or clause meant for restaurant.
(3.) THERE is no rule of law which can be termed as universally applicable either on account of the principles of statute or on account of any precedent of judicial recognition on account of which if a particular category is not covered by a class of establishments whose names are mentioned then that establishment cannot fall under other category. To argue or to expect a decision that if a hotel or establishment has been mentioned in clause (iii) by name then hotel or restaurant can only be covered by the requirements of 20 or more persons employment and the movement there are 19 persons even if manufacturing process is there and power is being used then clause (i) would not apply, is against law. L am of the opinion that cLause (i) and (ii) and cLause (iii) of this notification and so aLso the definition of factory as given in the E. S. I. Act they are aLL separate independent and each one can appLy. There is no bar for overLapping aLso. There is no prohibition under any Law. There is no such fundamentaL requirement of any Law that onLy one particuLar cLass of notification shouLd appLy to one particuLar cLass of estabLishment and if it faiLs to do so then it cannot be taken into other category I am therefore, convinced that the restaurants which are the subject matter of controversy in these two appeals would be covered by clause (i) also if the number is less than 20 but if it is proved that there is manufacturing process going on and the power being used. ;