NEW MANGALORE PORT LIST.WORKERS MAN.COM. Vs REG.DIR.,ESI CORP.,BANGALORE
Bench: T.S. THAKUR,R. BANUMATHI
Case number: C.A. No.-009931-009931 / 2014
Diary number: 10850 / 2008
Advocates: S. N. BHAT Vs
SANJEEV ANAND
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9931 OF 2014 (Arising out of SLP (Civil) No.11990/2008)
NEW MANGALORE PORT LISTED WORKERS ..Appellant MANAGING COMMITTEE NOW REPRESENTED BY NEW MANGALORE PORT TRUST
Versus
THE REGIONAL DIRECTOR, ..Respondent ESI CORPORATION, BANGALORE, KARANATAKA
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. Whether or not New Mangalore Port Listed Workers
Managing Committee is an integral part of New Mangalore Port
Trust (NMPT) and whether State Government is the
“appropriate government” to extend the applicability of
provisions of Employees State Insurance Act, 1948 (ESI Act) to
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the New Mangalore Port Listed Workers Managing Committee
are the points falling for consideration in this appeal.
3. Brief facts leading to the filing of this appeal are as
follows:- Section 1(5) of the ESI Act enables the appropriate
government to issue notification in respect of any other
establishment or class of establishments, industrial,
commercial, agricultural or otherwise. In exercise of its power
under Section 1(5) of the ESI Act, a notification dated
22.1.1986 was issued by the Government of Karnataka to
extend the provisions of the ESI Act to certain areas, in and
around the city of Mangalore. The said notification specified
that the provisions of the Act inter-alia would apply to certain
shops and establishments. Appellant-New Mangalore Port
Listed Workers Managing Committee, Panambur (for short
“Workers Managing Committee”) was established on 1.3.1983.
The object of the said Committee was to deploy listed workers
for loading and unloading of the import/export of cargo in the
Mangalore Port Premises. In accordance with the above
notification, ESI Corporation by its letter dated 5.5.1987,
directed the appellant to submit Form No.1 saying that the
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provisions of the ESI Act stood attracted against the appellant.
The Committee raised objections, claiming that the appellant
is engaged in the loading and unloading operations in the
premises of NMPT and that the appellants and their workmen
were neither a “shop” nor an “establishment” so as to attract
the provisions of the ESI Act. Rejecting the said objections,
ESI Corporation issued Show Cause Notice dated 14.8.1987 to
the Workers Managing Committee calling upon them to make
the contribution. The Appellant approached the ESI Court
under Section 75(g) of the ESI Act claiming that the provisions
of the ESI Act were not applicable to them as they were
governed by the provisions of Major Port Trust Act, 1963 and
that the Central Government is the appropriate government
with respect to the appellant-Committee. The petition filed by
the appellant was dismissed by the ESI Court by the order
dated 16.4.1993. Aggrieved by the said order, the appellant
filed appeal before the High Court of Karnataka in and by
which, the High Court remanded the matter back to the ESI
Court, with a direction to frame preliminary issue regarding
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the applicability of State Government’s notification to the
Committee.
4. ESI Court by order dated 31.12.2001, held that the
notification of the State Government was not applicable to the
Committee as the “appropriate government” to extend the
provisions of the ESI Act to the said Committee is the Central
Government. Aggrieved by the said order, respondent-
Corporation preferred appeal before the High Court of
Karnataka. The High Court set aside the findings of the ESI
Court and held that the Managing Committee is covered
within the purview of the notification issued by the State
Government. Aggrieved by the said order, the appellant has
filed this appeal by way of special leave.
5. Taking us through the evidence of AWs 1 and 2,
learned counsel for the appellant contended that the workmen
of the Committee were required to function under the
supervision and control of the NMPT and since the NMPT was
a Major Port governed by the Major Port Trust Act 1963, the
“appropriate government” is the Central Government and the
notification extending the provisions of ESI Act were not
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applicable to the appellant. It was submitted that since the
Central Government had not issued any notification with
regard to the premises of NMPT, the action of the State
Government was uncalled for. It was also argued by the
appellant that the social security measures and other benefits
as provided to the workers of the Managing Committee at par
with NMPT employees, were better than the ones envisaged
under ESI Act and therefore, the demand of ESI Corporation is
not sustainable and the High Court erred in saying that the
appellant is covered under the notification.
6. Per contra, learned counsel for the respondents
contended that at the time of issuance of the notification in
1986, Workers Managing Committee was an independent
entity merely rendering services of loading and unloading to
the NMPT and the said Committee was not an integral part of
NMPT and the State Government had legitimately exercised its
jurisdiction in extending the provisions of the ESI Act to the
Workers Managing Committee. It was further contended that
only in the year 1990 workmen were absorbed by NMPT and
prior to that, appellant was not a part of NMPT governed by
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Major Port Trust. It was urged that ESI Act is a welfare
legislation whose object is to extend the welfare coverage to a
vast segment of the employees and the notification has to be
meaningfully interpreted in the light of the objects of the
welfare legislation.
7. We have considered the submissions of the learned
counsel for the appearing parties and perused the materials
on record.
8. In terms of Indian Ports Act 1908, “Major Port”
means any port which the Central Government may by
notification in the official gazette declare, or may under any
law for the time being in force, have declared to be a Major
Port. By notification dated 4.5.1974, New Mangalore Port was
declared as a Major Port. By notification dated 27.3.1980, the
provisions of Major Port Trusts Act 1963 were made applicable
to the Major Port of New Mangalore from 1.4.1980 and New
Mangalore Port is thus a Major Port.
9. NMPL Workers Managing Committee was formed in
the year 1983 and it continued till 15.3.1990 on which date
the workers of the Managing Committee were absorbed by
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NMPT and they became NMPT Registered Cargo Handling
Wing. This NMPT Cargo Handling Wing is attached to the
Traffic Wing of NMPT. After the workmen of the Committee
were so absorbed as workers of NMPT Cargo Handling Wing,
the appellant- Managing Committee is no longer in existence
and New Mangalore Port Trust is now said to be pursuing this
matter.
10. It is seen from the affidavit sworn in by the
Secretary of NMPT before this Court that in terms of
Government of India notification dated 20.7.2009, the
provisions of the ESI Act were made applicable to all port
trusts including the New Mangalore Port Trust, so that the
casual and contract employees working in the NMPT have
been brought under the said Act. The employees of the New
Mangalore Port Trust inclusive of its Auto Garage, Workshop,
Registered Cargo Handling Workers Wing have been exempted
from the applicability of the provisions of the ESI Act vide
Notification dated 3.9.2010 of the Government of India. It is
stated that NMPT had filed an application for extending the
exemption for a further period from 30.9.2010.
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11. The point to be considered is between 1983 till
15.3.1990 whether the rendering of services of loading and
unloading by appellant-Management Committee to NMPT was
an integral part of NMPT and whether the State Government is
the “appropriate government” to issue the notification.
12. Mr. S.N. Bhat, learned counsel appearing for the
appellant submitted that prior to 15.3.1990 workers were
employed as registered Stevedores for carrying on loading and
unloading work and they were considered in a single pool on a
single roll and they were allowed to enter the dock only on the
passes issued by the CISF at port. Learned counsel further
submitted that AW1-Secretary of New Mangalore Port Listed
Workers Committee and AW2 had clearly spoken that even
prior to 15.3.1990, the workers were under the administrative
control of NMPT and about the various medical facilities
extended to the workers of the Committee and also the
insurance policies (LIC) and other benefits made available to
the workers by NMPT and that they were provided with various
medical facilities and other benefits and the evidence of AWs 1
and 2 was not at all considered by the High Court.
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13. By a perusal of the judgment of the High Court, it
appears that the High Court has not examined the testimony
of AW-1, Secretary of New Mangalore Port Listed Workers
Committee and AW-2, Deputy Secretary of NMPT and their
evidence that prior to 15.3.1990 the workers were under the
administrative control of the NMPT. The questions viz.:
(i) whether the workers of the Managing Committee were
registered as Stevedores engaged in loading and unloading
work of NMPT and whether they were under the administrative
control of NMPT; (ii) whether the services rendered by the
workers of the Managing Committee was an integral part of
NMPT and if that be so, whether the “appropriate government”
is the Central Government and (iii) whether the workers of
the Managing Committee were extended medical facilities and
other benefits on par with other employees of the NMPT and
other relevant questions remain unanswered. In our view, the
High Court has not considered the above questions in the light
of the evidence of AWs 1 and 2. That apart, High Court did
not have the benefit of considering the notification issued by
the Government of India dated 20.7.2009, extending the
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provisions of the ESI Act to NMPT and the exemption granted
by the Government of India by its notification dated 3.9.2010.
Instead of this Court itself examining the above questions, in
our view, the matter be remitted back to the High Court to
examine the same.
14. In the result, the appeal is allowed and the
impugned judgment dated 5.10.2007 passed by the High
Court in Miscellaneous First Appeal No.1379/2002 (ESI) is set
aside and the matter is remitted back to the High Court for
consideration of the matter afresh in the light of the above
discussion and in accordance with law. The High Court shall
afford sufficient opportunity to both parties to file additional
affidavits/counter affidavits and additional documents if any,
and proceed with the matter in accordance with law as
expeditiously as possible.
…………………………J. (T.S. Thakur)
…………………………J. (R. Banumathi)
New Delhi; October 28, 2014
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