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    CHAPTER I

CHAPTER I

PRELIMINARY

1. Short title, extent, commencement and application

(1) This Act may be called the Employees' State Insurance Act, 1948.

(2) It extends to the whole of India.

(3) It shall come into force on such date or dates as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Act and for different States or for different parts thereof .

(4) It shall apply, in the first instance, to all factories (including factories belonging to the government) other than seasonal factories:

PROVIDED that nothing contained in this sub-section shall apply to a factory or establishment belonging to or under the control of the government whose employees are otherwise in receipt of benefits substantially similar or superior to the benefits provided under this Act.

(5) The appropriate government may, in consultation with the Corporation and where the appropriate government is a State Government, with the approval of the Central Government, after giving six months' notice of its intention of so doing by notification in the Official Gazette, extend the provisions of this Act or any of them, to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise :

PROVIDED that where the provisions of this Act have been brought into force in any part of a State, the said provisions shall stand extended to any such establishment or class of establishments within that part if the provisions have already been extended to similar establishment or class of establishments in another part of that State.

(6) A factory or an establishment to which this Act applies shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time falls below the limit specified by or under this Act or the manufacturing process therein ceases to be carried on with the aid of power.

COMMENTS

Where by some club not only sporting facilities but a kitchen is also maintained, wherein a big number of members come,├┐it is not necessary that they are participating only in sports activities, they are also entertaining themselves and their guests by partaking beverages and tea served by the club. Activity in the kitchen has a direct connection with the activities carried on in the rest of the club premises. It is necessary that the club be registered under ESI Act as regards all the employees engaged by the club irrespective of the fact in which department they are working. Cricket Club of India satisfies the definition of the term `factory' under s. 2(12) of the Act hence covered by it.-- Cricket Club of India v. ESI Corporation 1994 (69) FLR 19.

The scheme of the Act does not provide that the provisions should be made applicable to all the areas and all the establishments at one stroke or to none at all. It would defeat beneficial scheme prescribed by the Act. The power conferred on the State Government under s. 1(5) of the Act can be exercised only with the approval of the Central Government, and therefore, it cannot be said that the limit of extension only to certain areas out of the areas covered under s. 1(3) of the Act would amount to encroachment of the powers of the Central Government. Sec. 1(5) does not indicate that the approval must be sought from the Central Government only after the expiry of the period mentioned in the notice of intention but there are circumstances to indicate that such approval must be secured beforehand. Requirement of s. 1(5) is that State Government can extend the scheme provided Central Government gives approval and after consultation with the corporation.-- ESI Corpn. v. Fariyar Hotel (P) Ltd. 1989 (1) LLJ 356.

Where in an establishment activities like that of clearing and forwarding is going on, it would fall within the expression "shop" even though clearing of documents is done in customs house meant for export and import of goods. Person involved in such business is catering to the needs of exporters and importers and others wanting to carry the goods further.-- AIR 1993 SC 252 .

Sec. 1(4) in the first instance is made applicable to all the factories. The Act envisages the extension of benefit to the employees in other establishments or class of establishments, industrial, commercial or otherwise. The extension of benefit is to be done by means of a notification by the appropriate government. Thus the benefits conferred by the Act cover a large area of employees than what the Factories Act and the akin legislation intended.-- Cochin Shipping Company v. Employees' State Insurance Corporation 1992 (65) FCR 676.

It is not actually necessary that the delivery of the goods to the purchaser should take place at the premises in which the business of buying or selling is carried on to constitute the said premises into a shop. The delivery of the goods sold to the purchaser is only one aspect of trading activities. Negotiation of the terms of sale, carrying on the survey of the goods imported, arranging for the delivery of the goods sold, collection of the price of the goods sold, etc. are all trading activities. If orders are received at a place which ultimately fructify with sales and the resulting trading activity is directed from there, that place comes to be known as a "shop"-- Cochin Shipping Co. v. ESI Corporation 1992 (65) FLR 676.

Anyone having product may approach advertising agency. The advertising agency will prepare an advertising campaign for him utilising the services of the experts it employs in this behalf. It sells the campaign to the client and receives the price thereof. Indubitably, the price will depend upon the nature of the campaign but that does not make any great difference. Essentially, the advertising agency sells its expert services to a client to enable the client to launch an effective campaign of his products without staining the language, the premises of an advertising agency can be said to be a "shop"--ESI Corporation v. R.K. Swamy 1993 (67) FLR 1145 : 1993 (2) CLR 1068.

2. Definitions

In this Act, unless there is anything repugnant in the subject or context,--

(1) "appropriate government" means, in respect of establishments under the control of the Central Government or a railway administration or a major port or a mine or oilfield, the Central Government, and in all other cases, the State Government;

(2) [* * *]

(3) "confinement" means labour resulting in the issue of a living child or labour after twenty-six weeks of pregnancy resulting in the issue of a child whether alive or dead;

(4) "contribution" means the sum of money payable to the Corporation by the principal employer in respect of an employee and includes any amount payable by or on behalf of the employee in accordance with the provisions of this Act;

(5) [ * * * ]

(6) "Corporation" means the Employees' State Insurance Corporation set up under this Act;

(6A) "dependant" means any of the following relatives of a deceased insured person, namely,--

(i) a widow, a minor legitimate or adopted son, an unmarried legitimate or adopted daughter;

(ia) a widowed mother;

(ii) if wholly dependent on the earnings of the insured person at the time of his death, a legitimate or adopted son or daughter who has attained the age of eighteen years and is infirm;

(iii) if wholly or in part dependent on the earnings of the insured person at the time of his death,--

(a) a parent other than a widowed mother,

(b) a minor illegitimate son, an unmarried illegitimate daughter or a daughter legitimate or adopted or illegitimate if married and a minor or if widowed and a minor,

(c) a minor brother or an unmarried sister or a widowed sister if a minor,

(d) a widowed daughter-in-law,

(e) a minor child of a pre-deceased son,

(f) a minor child of a pre-deceased daughter where no parent of the child is alive, or

(g) a paternal grand-parent if no parent of the insured person is alive;

(7) "duly appointed" means appointed in accordance with the provisions of this Act or with the rules or regulations made thereunder;

(8) "employment injury" means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India;

(9) "employee" means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and--

(i) who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of, the factory or establishment whether such work is done by the employee in the factory or establishment or elsewhere; or

(ii) who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment; or

(iii) whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or let on hire has entered into a contract of service;

and includes any person employed for wages on any work connected with the administration of the factory or establishment or any part, department or branch thereof with the purchase of raw materials for, or the distribution or sale of the products of, the factory or establishment or any person engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961, or under the standing orders of the establishment; but does not include--

(a) any member of the Indian naval, military or air forces; or

(b) any person so employed whose wages (excluding remuneration for overtime work) exceed such wages as may be prescribed by the Central Government a month:

PROVIDED that an employee whose wages (excluding remuneration for overtime work) exceed such wages as may be prescribed by the Central Government a month at any time after (and not before) the beginning of the contribution period, shall continue to be an employee until the end of that period;

(10) "exempted employee" means an employee who is not liable under this Act to pay the employee's contribution;

(11) "family" means all or any of the following relatives of an insured person, namely,--

(i) a spouse;

(ii) a minor legitimate or adopted child dependent upon the insured person;

(iii) a child who is wholly dependent on the earnings of the insured person and who is--

(a) receiving education, till he or she attains the age of twenty-one years,

(b) an unmarried daughter;

(iv) a child who is infirm by reason of any physical or mental abnormality or injury and is wholly dependent on the earnings of the insured person, so long as the infirmity continues;

(v) dependent parents;

(12) "factory" means any premises including the precincts thereof--

(a) whereon ten or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on, or

(b) whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on.

but does not include a mine subject to the operation of the Mines Act, 1952 or a railway running shed;

(13) "immediate employer", in relation to employees employed by or through him, means a person who has undertaken the execution, on the premises of a factory, or an establishment to which this Act applies or under the supervision of the principal employer or his agent, of the whole or any part of any work which is ordinarily part of the work of the factory or establishment of the principal employer or is preliminary to the work carried on in, or incidental to the purpose of, any such factory or establishment, and includes a person by whom the services of an employee who has entered into a contract of service with him are temporarily lent or let on hire to the principal employer and includes a contractor;

(13A) "insurable employment" means an employment in a factory or establishment to which this Act applies;

(14) "insured person" means a person who is or was an employee in respect of whom contributions are or were payable under this Act and who is, by reason thereof, entitled to any of the benefits provided by this Act;

(14A) "managing agent" means any person appointed or acting as the representative of another person for the purpose of carrying on such other person's trade or business, but does not include an individual manager subordinate to an employer;

(14AA) "manufacturing process" shall have the meaning assigned to it in the Factories Act, 1948;

(14B) "miscarriage" means expulsion of the contents of a pregnant uterus at any period prior to or during the twenty-sixth week of pregnancy but does not include any mis-carriage, the causing of which is punishable under the Indian Penal Code;

(15) "occupier" of the factory shall have the meaning assigned to it in the Factories Act, 1948;

(15A) "permanent partial disablement" means such disablement of a permanent nature, as reduces the earning capacity of an employee in every employment which he was capable of undertaking at the time of the accident resulting in the disablement:

PROVIDED that every injury specified in Part II of the Second Schedule shall be deemed to result in permanent partial disablement;

(15B) "permanent total disablement" means such disablement of a permanent nature as incapacitates an employee for all work which he was capable of performing at the time of the accident resulting in such disablement:

PROVIDED that permanent total disablement shall be deemed to result from every injury specified in Part I of the Second Schedule or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more;

(15C) "power" shall have the meaning assigned to it in the Factories Act, 1948;

(16) "prescribed" means prescribed by rules made under this Act;

(17) "principal employer" means--

(i) in a factory, the owner or occupier of the factory, and includes the managing agent of such owner or occupier, the legal representative of a deceased owner or occupier, and where a person has been named as the manager of the factory under the Factories Act, 1948; the person so named;

(ii) in any establishment under the control of any department of any government in India, the authority appointed by such government in this behalf or where no authority is so appointed, the head of the department;

(iii) in any other establishment, any person responsible for the supervision and control of the establishment;

(18) "regulation" means a regulation by the Corporation;

(19) "Schedule" means a Schedule to this Act;

(19A) "seasonal factory" means a factory which is exclusively engaged in one or more of the following manufacturing processes, namely, cotton ginning, cotton or jute pressing, decortication of groundnuts, the manufacture of coffee, indigo, lac, rubber, sugar (including gur) or tea or any manufacturing process which is incidental to or connected with any of the aforesaid processes and includes a factory which is engaged for a period not exceeding seven months in a year--

(a) in any process of blending, packing or repacking of tea or coffee; or

(b) in such other manufacturing process as the Central Government may, by notification in the Official Gazette, specify;

(20) "sickness" means a condition which requires medical treatment and attendance and necessitates abstention from work on medical grounds;

(21) "temporary disablement" means a condition resulting from an employment injury which requires medical treatment and renders an employee, as a result of such injury, temporarily incapable of doing the work which he was doing prior to or at the time of the injury;

(22) "wages" means all remuneration paid or payable, in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled and includes any payment to an employee in respect of any period of authorised leave, lock-out, strike which is not illegal or lay-off and other additional remuneration, if any, paid at intervals not exceeding two months, but does not include--

(a) any contribution paid by the employer to any pension fund or provident fund, or under this Act;

(b) any travelling allowance or the value of any travelling concession;

(c) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or

(d) any gratuity payable on discharge.

(23) "wage period" in relation to an employee means the period in respect of which wages are ordinarily payable to him whether in terms of the contract of employment, express or implied or otherwise.

(24) all other words and expressions used but not defined in this Act and defined in the Industrial Disputes Act, 1947, shall have the meanings respectively assigned to them in that Act.

COMMENTS

Section 2(1)

In a public sector corporation, a canteen is being managed by a contractor with the help of employees working with him and within the premises of the corporation maintaining the canteen under Factories Act, 1948. In such a case, the appropriate government will be Central Government.-- General Employees Association v. UOI 1992 (1) LLJ 242.

As regards Food Corporation which is set up under s. 17 of the Food Corporation Act, the State Government would be the appropriate government.-- Food Corporation of India v. Labour Court 1992 (64) FLR 286.

Section 2(6)(A)

If there is none of the relatives mentioned in s. 2(6A), dependant's benefit as laid down under s. 52 of the Act shall become payable to other dependants of the deceased as per First Schedule of the Act.-- 1993 (1) APLJ (HC) 312.

Considering the provisions of ss. 2(6A), 46(1)(d) and 52 and para 9(a) of the First Schedule, a parent including widowed mother is only entitled to 3/10th of the full rate of benefit of dependants. Where the benefits are given at full rate in accordance with para 6(a) of the First Schedule, that is wrong.-- 1993 (2) CLR 42.

Section 2(8)

Although no definition has been given under the Act for the term "accident" yet the word "accident" bears somewhat different meaning while used in connection with the Act. It means only such accident which arises out of and in the course of employment resulting in personal injury whereby physical or earning capacity of the employee is reduced or extinguished. Corporation can be made liable for compensation for the death or injury of an employee, only for that injury which is consequent of an accident arising out of and in the course of his employment. Where the employment has nothing to do with the incident or accident or in acceleration of the causes of death or personal injury compensation cannot be claimed under the Act.-- 1992 (64) FLR 508.

It cannot be that the theory of notional extension is reduced to a mathematical formula of distance and time. Where an employee is injured outside the premises of employer if the theory of notional extension would apply is dependent upon the facts and circumstances of each case. Where the employee attended the factory, signed the lay-off register, passed out of gate and stopped in public road for reaching her house, when she was hit by a scooter, keeping in view both the time and distance, the theory of notional extension can well be applied and the injury sustained must be taken as employment injury within the meaning of s. 2(8).-- 1991 (2) LLN 181.

In order that a liability arises under s. 2(8), what is required is that there is a causal connection between the employment and the injury caused by the accident. In a case an employee was attacked by his enemies while the employee was returning home from the place of his duties. The motive behind the attack was personal enmity on the issue of cultivation of land. The corporation cannot be made liable for compensation as the factum of nexus between employment and the assault by the enemies was lacking.-- 1992 Lab IC 1490 .

Where a laid-off employee after signing the lay-off register was coming out of the factory premises and when crossing the road was hit by a scooter, injuries sustained by him were taken as covered during the course of employment on the basis of theory of notional extension.-- Satya Sharma v. ESI Corporation 1991 (63) FLR 339 .

Where an employee, in order to perform his duty in the factory premises, while waiting for the bus met with an accident and died, it was held that the accident occurred in an area to which theory of notional extension applied and he was on his way going to the place of work, his dependants were entitled to accident benefits under the Act.-- 1991 (1) LLJ 247 .

In case a driver possesses sub-normal eyesight or does not possess required vision, it would not fall within an employment injury, nor it would come within occupational disease under the Act. There is no provision for compensation for a disability in the performance of a particular job. Compensation may be provided to them on an altogether different basis suitable to such peculiar loss, for example premature retirement has become a necessity on account of they being rendered unfit to work as drivers.-- Anand Behari v. Rajasthan State Road Transport Corpn. 1991 (62) FLR 81.

Section 2(9)

In whatever manner the word "employee" under s. 2(9) be construed, liberally or restrictively, the construction cannot go to the extent of ruling out the function and role of the immediate employer or obliterating the distance between the principal employer and the immediate employer. In some situation he is cut off. He is the one who stumbles in the way of direct nexus being established, unless statutorily fictioned, between the employee and the principal employer. He is the one who in "a given situation is the principal employer to the employee, directly employed under him. If the work by the employee is conducted under the immediate gaze or overseeing of the principal employer or his agent, subject to other conditions as envisaged being fulfilled he would be an employee for the purpose of s. 2(9).-- CES Corporation Ltd. v. Subash Chandra Bose 1992 (1) LLJ 475.

The definition of the word "employee" provided that it shall include any person employed by or through a contractor in or in connection with the work of establishment including the work performed elsewhere than the factory itself, including the dwelling house of a home worker, as also that the manufacturing operation, simple as it was, performed by illiterate workers, young and old, subjecting to rejection and acceptance was by itself an effective degree of supervision and control, establishing the relationship of master and servant. --P.M. Patel & Bros. v. Union of India 1986 (1) SCC 32.

A work that is conducive to the work of the factory or establishment or that is necessary for the augmentation of the work of the factory or establishment will be incidental or preliminary to or connected with the work of the factory or establishment. The casual employees shall also be brought within it and are entitled to the benefits which the Act grants. The casual labour employed to construct additional buildings for expansion of the factory are the employees under the Act.-- Regional Director, ESIC v. South India Flour Mills Ltd. 1986 (53) FLR 178.

Employees engaged for repairs, site clearing, construction of buildings, etc. of the principal employer are employees within the meaning of s. 2(9) of the Act. --Kirloskar Pneumatic Co. Ltd. v. ESI Corporation 1987 (70) FJR 199.

Where the employees are working in the execution of the works, repairs and maintenance thereof in connection with the generation, transmission and distribution of the electrical energy by the corporation, the corporation would be the principal employer. Immediate employees execute the work etc. under the supervision of the corporation as its agents. And their employees work under the supervision of the principal employer, corporation. Hence s. 2(9)(ii) of the Act covers them.-- CES Corporation Limited v. Subash Chandra Bose 1992 (1) LLJ 475.

The work of construction of additional building required for the expansion of a factory must be held to be ancillary, incidental or having some relevance to or link with the object of the factory. It is not correct to say that such work must always have some direct connection with the manufacturing process that is carried on in the factory. The expression "work of the factory" should also be understood in the sense of any work necessary for the expansion of the factory or establishment or for augmenting or increasing the work of the factory or establishment.-- Regional Director, ESI Corporation v. South India Flour Mills (P) Ltd. AIR 1986 SC 237 .

The expression "employed for wages or in connection with the work of a factory or establishment" is of very wide amplitude and its generality is not in any way prejudiced by the expression and includes any person employed for wages or any work connected with the administration of the factory or establishment or in connection with sale or distribution of the products of the factory or establishments. The word "includes" in the statutory definition of a term is generally used to enlarge the meaning of the preceding words and it is by way of extension and not with restriction. In order to determine whether the employees of the company working at its branch sales offices and carrying on acts of sale and distribution of goods manufactured by the company as well as the goods produced by the foreign company are "employees" what is pertinent is not whether they are "principally" and primarily engaged in sale and distribution of the products of the company but whether the business of sale and distribution either "principally" or "marginally" of the products of the foreign company is being done on behalf of the company. If the main business of the company itself at the branch sales offices, is to sell and distribute products of foreign company and the employees working have been employed by the company basically in connection with this work, it would be difficult to hold that the employees at branch sales offices are not "employees" within the meaning of the term defined in s. 2(9) of the Act notwithstanding the fact that the sale and distribution of the products of the company at such offices are only marginal.-- Director General, ESI Corporation v. Scientific Instrument Co. Ltd. 1995 Lab. IC 651 .

Where a Managing Director had no contract of employment with the company but one of the other directors also working in the capacity of purchase officer had such contract of employment, the director having the contract could be treated as employee but the Managing Director having no such contract of employment could not be treated as employee under s. 2(9) of the Act.-- 1991 Lab IC 765 .

For the purpose of s. 2(9) of the Act, the question whether the employees of the immediate employer work within the factory or the premises of the principal employer or else where is not totally irrelevant. If such an interpretation is arrived at, a material part of s. 2(9)(ii) would become redundant and otiose.-- 1991 Lab. IC 17.

Where the registered office of the company is outside the State but two of the branches of the company doing the same business fall within the State and neither of them is exercising any control or supervision over the other, nor is their work inter-connected, the two branches cannot be clubbed together in order to bring them within the purview of the Act.-- 1991 (1) LLJ 541 .

In the case of an establishment having its registered office in Andhra Pradesh, regional office in Bombay and branches spreading all over India, it was held that as the Act was not in force in the State of Maharashtra under s. 1(5) as regards the business of the establishment no contribution for employees working in Bombay branch or any where in the State of Maharashtra was payable. The words "elsewhere" occurring in s. 2(9)(1) would apply only when there is a Notification issued under s. 1(5). If it had not been so, every regional office of the corporation would become authorised to apply the Act to an entity outside the State. The fact that Regional Director in Kerala State forms the opinion that the establishment in Kerala is covered under the Act, the employees working in the Bombay region or in the State of Maharashtra would not be automatically covered.-- 1993 (2) CLR 855 .

In case there is no contract of service in existence between the principal employer or the immediate employer and the workman, and the workers are on assignment occasionally, they would not be treated as employee under s. 2(9) of the Act. Where a salesman of cold drink company takes the trucks carrying the crates of bottles to their customers having two permanent workers to unload the truck, but on account of two permanent loaders not available, hires some collies, such collies cannot be treated as employees of the manufacturer of the cold drinks. The reason being that there is no contract of service between the manufacturer or its salesman and the temporarily appointed collies.-- Park Bottling Co. (P) Ltd. v. R. D. ESIC 1989 (2) Cur. LR 320.

If the work by a worker is conducted under the immediate gaze or overseeing of the principal employer or his agent, subject to other conditions as envisaged being fulfilled, he would be an employee notifying the definition of the expression "employee" as laid down under the Act. In the textual sense "supervision of the principal employer or his agent is on the work at the places envisaged and the word "work" can neither be construed so broadly to be the final act of acceptance or rejection of work, nor so narrowly so as to be supervision at all times and at each and every steps of the work."-- Calcutta Electricity Supply Co. Ltd. v. S.C. Bose AIR 1992 SC 573.

Where the work of fixing the marble is extended to a contractor by a marble manufacturing company, duty of the contractor is only to complete the work while marble, cement etc., is supplied by the manufacturing company, workers employed by the contractor would be the employees of the factory as under s. 2(9) of the Act.-- 1992 (2) CLR 881.

There is no such difference as that of casual or temporary or permanent employee for the expression "employee" as defined under s. 2(9) of the Act. It is so wide as to include even a casual employee who is employed just for a day for wages. The test being whether the person is employed for wages on any work which is connected with the work of a factory or establishment which bears the application of the Act except those exempted by the definition.-- ESI Corporation v. Suvarna Saw Mills 1980 (57) FJR 154.

In an employment there is necessarily a contract of service which makes the person entering into service of an employer in connection with the operations which the establishment he is engaged in, carries on. Such employment may be so short as on daily wages. Still there is no fetter calling him an employee. But where the engagement is casually in connection with processes which are not integral, incidental preliminary to or connected with the operations of the establishment, then despite the fact that such an engagement is for a longer period, such casually employed workman cannot be termed as "employee" as defined under s. 2(9) of the Act.-- ESI Corporation v. Narahari Rao 1987 (70) FJR 160.

Once the society is independent of its members and has a separate legal existence apart from its members, then there is no bar for the society employing its members and there being a contract of employment between the society and its members. If such a contract of employment is entered into between the society and its members then the members so employed should be taken to have two independent capacities, one as a member of the society and the other as an employee of the society.-- Pondicherry State Weavers Co-operative Society Ltd. v. Regional Director, ESI Corporation 1983 (1) LLN 88.

The apprentices under any scheme as the name suggests come to learn the tricks of the trade and may not count much so far as the output of the factory is concerned, with that end in view, the apprentices are exempted from the operation of laws relating to labour unless the State Government thought otherwise.-- Regional Director ESIC v. M/s Arudyog 1987 (1) LLJ 292.

Section 2(12)

`Shop' liberally interpreted would take in any place where services are rendered, it will not go to the extent of including the premises where basically and mainly "intellectual activity is taking place" and things are not sold or purchased a concept which is peculiar to a shop.-- Dattaram Advertising (P) Ltd. v. Maharashtra, ESIC 1986 (2) LLN 346.

Even a place where services are rendered or performed will be a shop should be confirmed to a situation where the services are sold for any person who wants to avail of the same and were made available on payment of a stipulated price with no variation according to volume, nature, quality or complexity of work involved in the matter.--Hindu Jea Band v. ESI Corporation 1987 (1) LLN 778.

An advertising agency rendering services to its customers by way of giving advertising materials with the help of skilled professionals in the field and the services in fact being in the form of consultation and advice, agency would not be covered by the term "shop".-- KPB Advertising (P) Ltd. v. ESI Corporation 1989 (1) LLN 76.

Where a department of publication and press run by the university concerned is engaged in the printing of text books, journals, registers, forms, etc., that would amount to manufacturing process.-- Osmania University v. ESI Corporation 1986 (1) LLN 72 .

Servicing of vehicles with a view to its use by the customer or repairing of the batteries so that they are used in vehicles amounts to manufacturing process.--Bara Nagar Service Station v. ESI Corporation 1989 (58) FLR 698.

Finding of the court whether the place is a factory within the meaning of s. 2(12) of the Act is a finding of fact.-- 1992 (47) DLT 17 . It matters very little whether the factory or establishment is run with any profit making motive or not. So long as the manufacturing process is being carried on with the aid of power by employing twenty or more employees for wages it would come within the meaning of "factory" as defined in s. 2(12) of the Act.-- 1994 (2) LLJ 780.

Where a society engaged in bleaching, dyeing and mercerising of grey cloth using water not brought by employing power, and the use of power is only when the effluent is discharged in the river, it was held that there being no nexus between the manufacturing activity and the treatment and eventual discharge of the effluent, use of the power was not for any manufacturing process.-- ESI Corporation v. Vyankateh Co-operative Processors Society Ltd. 1993 Lab IC 1736.

Section 2(14AA)

The meaning of the expression "manufacturing process" cannot be imported into from the definition given to the expression in some other Act. Total significance is to be given to the definition as is given to the expression in the Act alone.--Ravi Shanker Sharma v. State of Rajasthan 1993 Lab. IC 987. Where the process of cooking food is going on in the kitchen annexed to the club, the act of preparation amounts to "manufacturing process".-- Cricket Club of India v. ESI Corporation 1994 Lab IC 1213.

Where there was no manufacturing of articles nor the hotel was manufacturing any article with the aid of power except maintaining one refrigerator to preserve milk and curd, and as there was no using of power in the kitchen for making the eatables and the refrigerator had been kept only for preservation of milk and curd, there was no manufacturing process.-- Ritz Hotel v. ESI Corpn. 1995 (1) Mah. LJ 63.

Act of stone crushing with the employment of more than ten employees and with the aid of power amounts to manufacturing process.-- Larsen and Toubro Ltd. v. State of Orissa 1992 Lab. IC 1513.

Section 2(15)

Where the ultimate control over the affairs of a factory is not with the directors and there is non-submission of the contribution card, a complaint moved as regards this against the directors of the company is liable to be quashed.--Sauri Adhikari v. ESI Corporation 1992 (1) LLN 777. Though the designation is as that of the principal employer but affairs of the factory are not extended to him, such person cannot be termed as principal employer-- ESI Corporation v. G.N. Mathur 1993 Lab. IC 1867.

The difference between "permanent partial disablement" and "permanent total disablement" though subtle, is quite discernible in a scrutiny of both. Ofcourse the common feature in both is that there should be permanent disablement. But where the case is of "partial disablement" the consequence of disablement should only have reduced his earning capacity in the employment. And in the case of "total disablement" the disablement should have rendered him incapacitated to do the work which he was capable of performing earlier. The degree of incapacity in the case of partial disablement is less. A mere reduction in the earning capacity is enough to make it a case of partial disablement, whereas the incapacity must be of a full measure in the total disablement. But such incapacitation is only with reference to "all work which he was capable of performing at the time of accident". In other words ,even if the incapacity does not affect his readiness to acquire skill or dexterity to do some other new work, the position does not improve as for him in deciding whether the disablement can be rated less.-- Regional Director ESI Corpn. v. K.P. Gopi 1995 Lab. IC 1239.

Section 2(17)

Just for the fact that a letter is signed by the managing director on behalf of his corporation or is having his sitting in the premises of the factory does not mean that he is also "principal employer" as defined, so that he is brought within the expression "principal employer" as defined it is essential to establish that he was in possession of contribution cards and also having the responsibility of sending the contribution cards in accordance with the provisions of the Act and the rules made thereunder.-- ESI Corporation v. M.P. Roongta 1988 (2) LLN 834.

All the directors can't be deemed to be the occupier but only those having the ultimate control over the affairs of the company, so that there is the fixation of ultimate liability or responsibility as regards the affairs of the company. Where there is no Managing Director managing the affairs of the company and in ultimate control over the affairs of the factory, none of the Directors can be regarded as the principal employer within the meaning of s. 2(17) of the ESI Act.-- Smt. Gauri Adhikari v. ESI Corporation 1992 (64) FLR 665.

Whosoever is there with the designation as that of the "occupier" must be deemed as having ultimate control over the affairs of the factory within the contemplation of the Factories Act, 1948 hence "principal employer" within the meaning of ESI Act.-- ESI Corporation v. G.N. Mathur 1991 (63) FLR 115.

Section 2(19A)

By 1966 amendment, scope of the definition of the expression "seasonal factory" is enlarged which is obvious from the words added as "include a factory" using of the word "include" in statutory definitions enlarges the meaning of the preceding words or phrases. When used that way, words or phrases must be interpreted as comprehending not only their natural sense but also such other things as are added by interpretation clause.-- AIR 1992 SC 129 .

Section 2(22)

The expression "other additional remuneration" if any paid implies that the said remuneration is not payable under any contract of employment express or implied. This is so because, while the first part of the definition refers to remuneration under the contract of employment the second part does not refer to remuneration under any such contract. Thus the expression does not refer to remuneration payable under any contract but refers to such remuneration which is payable at the will of the employer.-- Wellman (India) (P) Ltd. v. ESI Corporation 1993 (67) FLR 1208.

Bonus paid or payable by the respondent to its employees under the successive settlements and agreements between them cannot be regarded as remuneration paid or payable to the employees in fulfilment of the term of the contract of employment.-- Regional Director, ESI Corporation v. Bata Shoe Company (P) Ltd. 1986 (1) LLJ 138 .

Only such additional remuneration as are paid beyond the terms of the contract and at intervals not exceeding two months, can be wages under ESI Act. --S.T. Reddier v. Regional Director 1989 (59) FLR 313.

In spite of the fact that bonus paid to the employees under the scheme has been designated as incentive bonus in the scheme such payment amounts only an ex-gratia payment that the employer has made and cannot be said to be an additional remuneration or wages as falling within the expression "wages".-- M.P. State Road Transport Corporation Ltd. v. ESI Corporation 1991 (62) FLR 517.

Wages paid for the holidays are wages as defined.-- R.D., ESI Corporation v. Raj Keshaw Co. 1991 Lab. IC 1991 Lab. IC 1989.

Overtime wages could not be treated as "wages" for the purpose of contribution under the Act.-- Hind Art Press v. ESI Corporation 1990 (1) LLJ 195.

"Collection bhatta" by reason of its production incentive allowance constitutes "wages".-- ESI Corporation v. K.P. Vinod 1991 (63) FLR 563.

Where in a case Director worked in the capacity of purchase officer and for that was paid a regular honorarium, it was held that honorarium amounted to "wages" and Director as "employee".-- Frontier Motor Car Co. v. RD, ESI Corporation 1991(2) LLN 678.

2A. Registration of factories and establishments

Every factory or establishment to which this Act applies shall be registered within such time and in such manner as may be specified in the regulations made in this behalf.

 
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