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PETITIONER: HINDU JEA BAND, JAIPUR

       Vs.

RESPONDENT: REGIONAL DIRECTOR, EMPLOYEES’ STATEINSURANCE CORPORATION, JA

DATE OF JUDGMENT20/02/1987

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) SINGH, K.N. (J)

CITATION:  1987 AIR 1166            1987 SCR  (2) 377  1987 SCC  (2) 101        JT 1987 (1)   518  CITATOR INFO :  D          1988 SC 113  (6)

ACT:     Employees   State   Insurance,   Act,   1948,    section 1(5)--Whether the power conferred under section 1(5) of  the Act  on  the State Government to extend all or  any  of  the provisions  of the Act to other Establishments in the  State suffers  from the vice of excessive delegation of  essential legislative powers.     Notification  issued by the Rajasthan State dated  20.9. 1975 under section 1(5) of the E.S.I. Act, whereby shops  in which 20 or more persons had been employed for wages on  any day  of the preceding 12 months were also brought under  the purview of the Act with effect from 26.10. 1975--Whether the place where business of supplying the services of  musicians or band players a "shop"--Whether the business being  inter- mittent or seasonal, offends Articles 14, 19(1)(g) and 21 of the  Constitution--Employees  State  Insurance  Act,   1948, sections 1(4), 2(12).

HEADNOTE:     All the provisions of the Employees State Insurance Act, 1948  were extended with effect from 26.10.1975, to  certain classes  of establishments and areas in the State of  Rajas- than,  by virtue of a Notification dated September 20,  1975 issued  under sub-section (5) of section 1 of the Act.  Item 3(iii)  in  the Schedule to the  said  Notification  brought within  the  purview of the Act shops in which  20  or  more persons  had been employed for wages on any day of the  pre- ceding 12 months.     M/s  Hindu Jea Band, Jaipur had employed 23  persons  on wages  during the relevant period, but did not  comply  with the  provisions of the Act. The demand made by the  authori- ties  of the Employees’ State Insurance Corporation to  make contributions  as  required under the Act with  effect  from 26.10.1975  was questioned by M/s Hindu Jea Band by a  peti- tion under section 75 of the Act before the Employees  State Insurance Court on two grounds; (i) that the place where  it was  carrying on business was not a shop; and (ii) that  its business being one of the intermittent or seasonal character of  the  Act could not be extended to its  business.  Having lost the case before the E.S.I. Court and in appeal

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378 before  the  High Court, the petitioner has come  in  appeal before  the Supreme Court. The petitioner also filed a  writ petition  under Article 32 of the  Constitution  challenging the  Notification as violative of Articles 14, 19(1)(g)  and 21  of the Constitution, and section 1(5) of the Act  itself as suffering from the vice of excessive delegation of legis- lative powers. Dismissing the petitions, the Court     HELD:1. The place, where the petitioner has been  carry- ing on business of making available on payment of the stipu- lated  price  the services of the members of  the  group  of musicians  employed by it on wages is a shop, to  which  the Act  is  applicable  by virtue  of  the  Notification  dated 20.9.1975  issued under section 1(5) of the Act which  is  a beneficient legislation. Though the word ’shop’ has not been defined  in  the Act. a shop is no  doubt  an  establishment (other  than  a factory) to which the Act  can  be  extended under  section 1(5) of the Act provided  other  requirements are satisfied. [380D-E]     2.  The fact that the services are rendered by  the  em- ployees’ engaged by the petitioner intermittently or  during marriages  does  not  entitle the petitioner  to  claim  any exemption  from  the operation of the Act. as  much  as  the place  of business of the petitioner is a "shop" and  not  a "factory"  as  defined  in section 2(12)  and  section  1(4) refers  only to the factories. Further, the services of  the employees  of the petitioner are not confined only  to  mar- riages  which now a days take place throughout the year  but also to provide music at several other social functions also which may take place during all seasons. [380G-H; 381A]     The  definition  of an "employee" under the  Act  has  a wider meaning. The employees who worked outside the business premises  but  those  whose duties are  connected  with  the business are also ’employees’ within the meaning of  section 2(9)(i) of the Act. Even these employees who are paid  daily wages or those who are part-time employees are employees for purposes of the Act. [381B]     Nagpur Electric Light & Power Ltd. v. Regional  Director Employees State Insurance Corporation etc., [1967] 3 SCR 92, referred to.     3. The power conferred upon the State under section 1(5) does  not  suffer from the vice of excessive  delegation  of essential  legislative powers. Nor does the  application  of the Act to businesses like the one which is being carried on by the petitioner cannot be said to be violative of Articles 14 or 19(1 )(g) or section 21 of the Constitution. [381D-E] 379

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Special  Leave  Petition (Civil) No. 1743 of 1987.     From  the  Judgment and Order dated 7.11.  1986  of  the Rajasthan  high Court in S.B. Civil Misc. Appeal No.  59  of 1980. WITH Civil Writ Petition No. 197 of 1877 Under Article 32 of the Constitution of India. S.  Rangarajan, B.P. Singh and ,Sanjay Parikh for the  Peti- tioner. The Judgment of the Court was delivered by     VENKATARAMIAH,  J. The petitioner M/s. Hindu  Jea  Band, Jaipur which is a partnership firm carrying on the  business

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of playing music on occasions, such as, marriages and  other social functions questioned its liability to pay the contri- bution  under the provisions of the Employees’ State  Insur- ance  Act, 1948 (hereinafter referred to as ’the Act’) in  a petition  filed under section 75 of the Act before  the  Em- ployees’  State Insurance Court, Jaipur principally  on  two grounds (i) that the place where it was carrying on business was  not  a  shop and (ii) that its business  being  one  of intermittent  or  seasonal character the Act  could  not  be extended  to  its business. The Employees’  State  Insurance Court  rejected  the petition filed by  the  petitioner  and directed it to pay the amount which had been computed as the arrears  by  the Regional Director of the  Employees’  State Insurance  Corporation, Jaipur. An appeal filed against  the decision of the Employees’ State Insurance Court, Jaipur  by the petitioner was dismissed by the High Court of Rajasthan. This petition under Article 136 of the Constitution is filed against  the judgment of the High Court. The petitioner  has also filed a writ petition under Article 32 of the Constitu- tion questioning the validity of sub-section (5) of  section 1  of the Act and the notification issued by the State  Gov- ernment under it to which reference will be made hereafter.     The Act did not apply to shops and such other establish- ments  straight  away on the Act coming into  force  in  the State of Rajasthan. But by the notification dated  September 20, 1975 issued under subsection (5) of section 1 of the Act the  Government of Rajasthan extended all the provisions  of the Act to certain classes of establishments 380 and  areas  in the State notification. Item 3 (iii)  in  the Schedule to the said notification brought within the purview of  the Act shops in which 20 or more persons had  been  em- ployed  for wages on any day of the preceding 12 months  and appointed  on  October 26, 1975 as the date from  which  the said  notification would come into force. The petitioner  as held  by the Employees’ State Insurance Court, had  employed 23  persons on wages during the relevant period.  Since  the petitioner did not comply with the provisions of the Act the authorities  of the Employees’ State Insurance  Corporation, Jaipur  called upon the petitioner to make contributions  as required  by the Act with effect from October 26, 1975.  The petition  before  the Employees’ State Insurance  Court  was filed  by the petitioner on such a demand being made  on  it questioning the validity of the said demand.     The first contention urged in support of the petition is that  since the petitioner was not selling any goods in  the place of its business but was only engaged in arranging  for musical performances on occasions such as marriages etc. its business premises cannot be called a ’shop’. We do not agree with the narrow construction placed by the petitioner on the expression  ’shop’ which appears in the notification  issued under section 1(5) of the Act which is a beneficient  legis- lation.  The word ’shop’ has not been defined in the Act.  A shop is no doubt an establishment (other than a factory)  to which the Act can be extended under section 1(5) of the  Act provided  other requirements are satisfied. In Collins  Eng- lish  Dictionary  the meaning of the word  ’shop’  is  given thus: "(i) a place esp. a small building for the retail sale of  goods and services and (ii) a place for the  performance of  a specified type of work; workshop." It is obvious  from the  above meaning that a place where services are  sold  on retail  basis  is also a shop. It is not disputed  that  the petitioner  has  been  making available on  payment  of  the stipulated price the services of the members of the group of musicians employed by it on wages. We, therefore, hold  that

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the place where the petitioner has been carrying on business is  a shop to which the Act is applicable by virtue  of  the notification referred to above. The first contention, there- fore, fails.     We  do not find much substance in the second  contention too. The fact that the services are rendered by the  employ- ees  engaged  by  the petitioner  intermittently  or  during marriages  does  not  entitle the petitioner  to  claim  any exemption  from  the operation of the  Act.  The  petitioner cannot rely on sub-section (4) of section 1 of the Act which refers  to  factories only in support of its  case.  We  are concerned  in  this case with a shop and not  a  factory  as defined under section 2(12) of the 381 Act. Moreover the services of the employees of the petition- er  are  not confined only to marriages. It cannot  also  be said that marriages take place only during a specified  part of  the year. Nowa-days marriages take place throughout  the year. The petitioner provides music at several other  social functions also which may take place ’during all seasons. The definition of an ’employee’ under the Act has a wider  mean- ing. The employees who worked outside the business  premises but  those whose duties are connected with the business  are also  ’employees’ within the meaning of section  2(9)(i)  of the  Act.  (see Nagpur Electric Light & Power Co.  Ltd.   v. Regional  Director  Employees  State  Insurance  Corporation Etc.), [1967] 3 S.C.R. 92. Even those employees who are paid daily wages or those who are part-time employees are employ- ees for purposes of the Act. Hence we do not find any  merit in  this  special Leave Petition. The  petition,  therefore, fails and it is dismissed.     Along with the Special Leave Petition the petitioner has presented before this Court a Writ Petition under Article 32 of the Constitution questioning the validity of the  notifi- cation issued by the State Government on the ground that the power  conferred  under the Act on the State  Government  by sub-section  (5) of section 1 authorising the State  Govern- ment  to extend all or any of the provisions of the  Act  to other  establishments in the State suffers from the vice  of excessive delegation of essential legislative powers. It  is also contended that the application of the Act to businesses like  the  one which is being carried on by  the  petitioner during  certain  seasons only of the year  is  violative  of Article 14, Article 19(1)(g) and Article 21 of the Constitu- tion. Having carefully considered the submission made by the learned  counsel for the petitioner we find no merit in  any of  the  contentions urged in the writ  Petition.  The  Writ Petition is also, therefore, dismissed. S.R.                                                Petition dismissed. 382