DELHI GYMKHANA CLUB LTD. Vs EMPLOYEES STATE INSURANCE CORPORATION
Bench: T.S. THAKUR,R. BANUMATHI
Case number: C.A. No.-002415-002415 / 2003
Diary number: 16893 / 2002
Advocates: R. N. KESWANI Vs
V. J. FRANCIS
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2415 OF 2003
DELHI GYMKHANA CLUB LTD. ..Appellant
VERSUS
EMPLOYEES STATE INSURANCE CORPN. ..Respondent
J U D G M E N T
R. BANUMATHI, J.
Short point falling for consideration in this appeal is
whether kitchen of the appellant-club and catering section
thereon come within the meaning of “factory” and
“manufacturing process” as defined in Employees’ State
Insurance Act, 1948 (for short ‘ESI Act’).
2. The appellant-Delhi Gymkhana Club is a member
club, duly registered under the Companies Act. Appellant-
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club has a kitchen to cook food items to provide food and
refreshment to its members. On 20.03.1975, a notification
was issued by the Delhi Administration, in exercise of the
powers conferred under Section 1(5) of the ESI Act, stating
that the provisions contemplated under the Act shall be
extended to the establishments specified in the Schedule
thereon. In furtherance of the said notification, the
respondent-ESI Corporation sought to apply the provisions of
the Act on the appellant-club, on the ground that the
preparation of food items amounts to “manufacturing process”
and that the appellant–club is a factory/establishment covered
under the provisions of the ESI Act. After issuing the show
cause notice, ESI Corporation passed the order on 4.8.1986
under Section 45-A of the ESI Act, holding that M/s. Delhi
Gymkhana Club Limited is covered under the provisions of
Employees State Insurance Act, directing the appellant to pay
Rs.6,82,655.40 as a contribution of insurance in respect of
employees for the period from 1.02.1980 to 31.08.1985, along
with interest @ 6% per annum.
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3. Aggrieved, the appellant filed a petition in the ESI
Court which, by a judgment dated 25.11.1986, while allowing
the petition of the appellant-club, held that preparation of
eatables does not fall under “manufacturing process” and
hence, ESI Act is not applicable to the appellant-club and the
appellant was not liable to pay contribution. Aggrieved by the
same, respondent-corporation preferred appeal before the High
Court. The High Court allowed the appeal and held that the
kitchen is an integral part of the club and that cooking of
foodstuffs amounts to ‘manufacturing process’ falling within
the meaning of sub-section (14AA) of Section 2 of the ESI Act,
thereby falling within the meaning of ‘factory’ as defined under
Section 2(12) of ESI Act. Being aggrieved, the appellant-club
is in appeal before us.
4. Contention of the appellant is that the Club is a
non-profit organization, exclusively rendering facilities to its
members and that the ESI Act is not applicable to them. It is
contended that social security perks, better than the ones
contemplated under the ESI Act, are already put in place for
the benefit of employees. Contending that preparation of food
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items does not amount to ‘manufacturing process’ and that
provisions of ESI Act are not applicable to the club, the
appellant placed reliance on the decision of this Court in
Indian Hotels Co. Ltd. Vs. I.T.O. (2000) 7 SCC 39, wherein it
was held that preparation of foodstuffs in hotel kitchen is
merely processing of food to make it edible and that there is no
manufacturing process.
5. Per contra, learned counsel for the respondent
submitted that the purpose is to extend the benefit of the
scheme to the employees working in the appellant-club and
while doing so, the object of welfare legislations, like the ESI
Act, ought to be kept in mind. Refuting the appellant’s
contention that preparation of foodstuffs in the kitchen does
not amount to ‘manufacturing process’, the respondent placed
reliance on the decision of this Court in G.L. Hotels vs. T.C.
Sarin (1993) 4 SCC 363, wherein it was held that cooking
forms part of manufacturing process, as it alters and treats or
otherwise adapts an article of food or substance with a view to
its use, sale, delivery or disposal in the club. It was submitted
that the High Court rightly held that the kitchen of the
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appellant falls within the meaning of ‘factory’ as defined under
Section 2(12) of the ESI Act.
6. We have carefully considered the submissions and
perused the materials on record.
7. ESI Act is made applicable under Section 1(4) to all
factories including factories belonging to the Government,
other than seasonal factories. Proviso appended to Section 1(4)
of the ESI Act carves out an exception. Sub-section (4) of
Section 1 of the ESI Act shall not 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.
8. The provisions of Section 1(5) of the ESI Act enable
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
powers under Section 1(5) of the Act, the Delhi
Administration issued the notification dated 20.03.1975
extending the provisions of the Act to certain establishments.
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Relevant portion of the said notification reads as under:
“1. Any premises including the precincts thereof whereon ten or more persons but in any case less than twenty 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; but excluding a mine subject to the operation of the Mines Act 1952 (35 of 1952) or railway running shed or an establishment which is exclusively engaged in any of the manufacturing process specified in clause (12) of Section 2 of the Employees State Insurance Act, 1948 (34 of 1948).
In the Union Territory of Delhi.
2. Any premises including the precincts thereof 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 excluding a mine subject to the operation of the Mine Act, 1952 (35 of 1952) to a railway running shed or an establishment which is exclusively engaged in any of the manufacturing process specified in clause (12) of Section 2 of the Employees’ State Insurance Act, 1948 (34 of 1948). 3…………..”
In the Union Territory of Delhi.
In furtherance of the above notification, the ESI Corporation
sought to apply the provisions of the Act to the appellant-club.
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9. The word “factory” has been defined in Section 2(12)
of ESI Act as under:-
”2(12) “factory” means any premises including the precincts thereof 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 if being carried on with 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 (35 of 1952), or a railway running shed.”
The above definition is prior to the amendment Act 29/1989.
In this appeal, we are concerned with the definition of “factory”
as it existed prior to October 20, 1989.
10. Prior to Act 29/1989, in Section 2(12) of the ESI
Act, the expressions “manufacturing process”, “power” shall
have the meaning respectively assigned to them in the
Factories Act, 1948. After Act 29 of 1989, a separate
definition for “manufacturing process” has been incorporated
in sub-section (14AA) of Section 2 which practically has the
same effect. It is seen from the definition of “factory” that the
following conditions are to be satisfied in order to make any
premises including the precincts thereof a factory:
(1) in the premises including the precincts thereof twenty or more persons are employed or were
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employed for wages on any day of the preceding twelve months;
(2) in any part of these premises or precincts, a manufacturing process is being carried on, and
(3) such manufacturing process must be carried on with the aid of power, or is ordinarily so carried on.
11. “Manufacturing process” has been defined in
Section 2(k) of the Factories Act, 1948 as under:-
“2. (k) ‘manufacturing process’ means process for –
(i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal; or
(ii) pumping oil, water, sewage or any other substance; or
(iii) generating, transforming or transmitting power; or
(iv) composing types for printing, printing by letter press, lithography, photogravure or other similar process or book binding; or
(v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels; or
(vi) preserving or storing any article in cold storage.”
For the purpose of this appeal, we are concerned only with
Section 2(k) (i) of the Factories Act.
12. We need not go into the details of the number of
employees working in the kitchen of the appellant-club, as
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admittedly more than 20 persons are employed in preparation
of foodstuffs and serving in the kitchen-catering division and
those employees are paid salary, wages, gratuity etc.
Admittedly, the club maintains a kitchen, refrigerator, geyser
and other equipments are used in making and preparation of
foodstuffs wherein power is used. That food items are being
prepared in the kitchen and being served in the kitchen of the
appellant-club to appellant-club’s members and their guests
for payment is not disputed.
13. The object of the appellant-club is to promote polo,
hunting, racing, tennis and other games, athletic sports and
recreations amongst its members. Huge contribution is
collected for becoming members of the club and only the
privileged can become the members of the appellant-club.
There are wide range of sports activities, recreations and big
budget is involved. The kitchen of the club has a direct
connection with the activities carried on in the rest of the club
precincts. The members and the guests of the members share
the services of the kitchen. The ESI Act is enacted to provide
certain benefits to employees in case of sickness, maternity in
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case of female employees, employment injury and to make
provision in certain other matters in relation thereto. We find
no reason as to why the employees of the appellant-club
should be kept out of the welfare coverage of the beneficial
legislation like ESI Act.
14. Let us now examine whether preparation of food
items in the kitchen of the appellant-club amounts to
“manufacturing process” bringing the club within the purview
of the definition of ‘factory’. It has been consistently held by
this Court that preparation of foodstuffs in hotels and
restaurants amounts to manufacturing process, thereby
invoking the applicability of the provisions of the ESI Act. This
Court in G.L. Hotels Limited and Ors. vs. T.C. Sarin and Anr.,
(1993) 4 SCC 363 has affirmed the views of the High Court
that “since the manufacturing process in the form of cooking
and preparing food is carried on in the kitchen and the
kitchen is a part of the hotel or a part of the precinct of the
hotel, the entire hotel falls within the purview of the definition
of “Factory”.”
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15. In Bombay Anand Bhavan Restaurant vs. Deputy
Director, Employees State Insurance Corporation And Anr.,
(2009) 9 SCC 61, the question for consideration was whether
the appellant-restaurant, which was using LPG gas for
preparation of coffee, tea and other beverages, is covered
under the ESI Act. Observing that it is a settled position of
law that cooking, preparing of food items qualifies as
manufacturing process and that the use of LPG satisfies the
definition of power, this Court in paragraphs (27) and (39)
held as under:-
27. Both the appellants prepare sweets, savouries and other beverages in their establishments. It is a settled position of law that cooking and preparing food items qualifies as manufacturing process. In ESI v. Spencer & Co. Ltd. (1978 Lab IC 1759 Mad) the Madras High Court held, while dealing with the case of a hotel run by Spencer and Co., that preparation of coffee, peeling of potatoes, making bread toast, etc. in a hotel, involve “manufacturing process”. Similarly, the Bombay High Court in Poona Industrial Hotel Ltd. v. I.C. Sarin (1980 Lab IC 100 Bom), held that the kitchen attached to Hotel Blue Diamond run by the petitioners therein, should be considered as a “factory” for the purpose of the ESI Act. Hence, it is beyond doubt that there is manufacturing process involved in the establishment of the appellants. ……………… 39. In our view, the use of LPG satisfies the definition of power as it is mechanically transmitted and is not something generated by human or animal agency. Since the establishments of the appellants involve a manufacturing process with the aid of LPG, which can
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now be termed as power, the establishments of the appellants can be termed as factories, and therefore, the ESI Act will apply to these establishments.”
16. On behalf of the appellant, it is contended that the
above decisions are in respect of hotels and the appellant is
only a club which has been running a kitchen and catering
division only for the benefit of its members and the same is
not for the purpose of making any profit and it should be held
that the appellant-club does not fall within the definition of
“factory” under Section 2(12) of the ESI Act. We find no merit
in the above submission.
17. The appellant-club is catering to the elite people of
Delhi. Appellant-club provides various services to its members
and organizes several sports activities. Wide range of activities
of the club are associated with the large number of staff.
Kitchen is an integral part of the club which caters to the
needs of its members and their guests, on payment of money
either in cash or by card, where the food items are put for
sale, thereby making the appellant-club fall within the
definition of ‘factory’ under Section 2(12) of the ESI Act. All
the persons employed for the purpose of supply and
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distribution of food prepared in the kitchen and for doing
other incidental duties in connection with the kitchen and
catering are to be regarded as employees of the factory. It
hardly matters for the employee whether the appellant’s
kitchen is run with any profit making motive or not.
18. The object of ESI Act is to provide certain benefits
to the employees in case of sickness, maternity and
employment injury and also to make provision for certain
other matters in relation thereto. ESI Act is a beneficial piece
of social welfare legislation aimed at securing the well-being of
the employees and the court will not adopt a narrow
interpretation which will have the effect of defeating the
objects of the Act.
19. In the case of Bombay Anand Bhavan Restaurant
vs. Dy. Director ESI Corporation & Anr. (2009) 9 SCC 61 in
paragraph 20 it has been held as under :-
“20. The Employees’ State Insurance Act is a beneficial legislation. The main purpose of the enactment as the Preamble suggests, is to provide for certain benefits to employees of a factory in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. The Employees’ State Insurance Act is a social security legislation and the canons of interpreting a social
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legislation are different from the canons of interpretation of taxation law. The courts must not countenance any subterfuge which would defeat the provisions of social legislation and the courts must even, if necessary, strain the language of the Act in order to achieve the purpose which the legislature had in placing this legislation on the statute book. The Act, therefore, must receive a liberal construction so as to promote its objects.”
The same principle was reiterated in Transport Corporation
of India vs. Employees’ State Insurance Corporation & Anr.,
(2000) 1 SCC 332 and Cochin Shipping Co. vs. ESI Corporation
(1992) 4 SCC 245.
20. Even though the term “kitchen”, “catering” of a club
may not be called a factory in common parlance, having regard
to the definition of “manufacturing process” and that ESI Act
is a beneficial legislation, a liberal interpretation has to be
adopted. Therefore, so long as manufacturing process is
carried on with or without the aid of power by employing more
than twenty persons for wages, it would come within the
meaning of “factory” as defined under Section 2(12) of the ESI
Act. The contention that the appellant-club is a non-profit
making organization would not take away the same from the
purview of the Act.
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21. In The Bangalore Turf Club Ltd. vs. Regional
Director, Employees State Insurance Corporation reported in
(2014) Vol.9 Scale 177, the question which was referred to a
larger Bench was “whether the Bangalore Turf Club Ltd.
being engaged in organizing sports activities which involves
providing of service to the members of the Club and outsiders
can be construed as a “shop” for the purpose of extending the
benefits under the ESI Act.” Referring to Cochin Shipping Co.
vs. ESI Corporation (supra) and Bombay Anand Bhavan
Restaurant vs. Deputy Director ESI Corporation & Anr. (supra),
in paragraphs (71) and (72), it was held as under:
“71. It has consistently been the stand of the Appellants- herein that the term ‘shop’ must be understood in its ‘traditional sense’. However, as has been observed by this Court in the case of Bombay Anand Bhavan Restaurant (supra), the language of the ESI Act may also be strained by this Court, if necessary. The scheme and context of the ESI Act must be given due consideration by this Court. A narrow meaning should not be attached to the words used in the ESI Act. This Court should bear in mind that the ESI Act seeks to insure the employees of covered establishments against various risks to their life, health and well-being and places the said charge upon the employer.
72. We find that the term ‘shop’ as urged to be understood and interpreted in its traditional sense would not serve the purpose of the ESI Act. Further in light of the judgments discussed above and in particular the Cochin Shipping Case (supra) and the
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Bombay Anand Bhavan Case (supra), this Court is of the opinion that an expansive meaning may be assigned to the word ‘shop’ for the purposes of the ESI Act. As has been found above, the activities of the Appellant-Turf Clubs is in the nature of organized and systematic transactions, and further that the said Turf Clubs provide services to members as well as public in lieu of consideration. Therefore, the Appellant-Turf Clubs are a ‘shop’ for the purpose of extending the benefits under the ESI Act.”
22. In Employees State Insurance Corporation vs.
Hyderabad Race Club, (2004) LLR 769 (SC)=(2004) 6 SCC 191,
this Court has clarified that a club will be coverable under the
ESI Act.
23. In Cricket Club of India, Bombay vs. Employees’
State Insurance Corporation (1998) LLR 729 (Bombay HC), the
Bombay High Court has held that ESI Act will apply to a club
since there was no distinction between a hotel and a club. In
Employees’ State Insurance Corporation vs. Jalandhar
Gymkhana Club, (1992) LLR 733 (P & H HC), the Punjab and
Haryana High Court considered the question whether
manufacturing process is being carried on in the kitchen of
the club, rendering catering services to its members. It was
held that a perusal of sub-clauses (i) to (vi) of Section 2(k) of
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the Factories Act would make it clear that preparation of the
items which are prepared in the kitchen and the preservation
and storing of any articles in the cold storage would amount to
a manufacturing process.
24. The counsel for the appellant claimed exemption
under Section 1(4) of the ESI Act, contending that the club is
already providing medical facilities and that they have staff
welfare fund out of which employees are paid in cases of
death, funeral expenses and in case of illness and hence ESI
Act is not applicable to them. The provisions of ESI Act must
be construed along the lines of the objects of the Act so that
the benefits of welfare legislation are not curtailed. ESI Act
provides a kind of social security and employees are one of the
most vulnerable and deprived section of the society, who are in
the constant need of protection, security and assistance. The
social security system needs to be effective and constructive
and should have more coverage areas. Government has the
obligation to protect working class from uncertain
contingencies so that they can happily contribute towards
social security schemes. ESI Act and all the provisions of the
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Act are significant and are meant to realize State’s obligation
in safeguarding the rights provided under Part IV of the
Constitution. The appellant’s contention regarding adequate
social security benefits being already in place is not tenable.
25. In the light of the various decisions and the view
taken by this Court in G.L. Hotels case, the High Court has
rightly held that the preparation of food items in the kitchen
of the appellant-club amounts to “manufacturing process”
and that the employees are covered under the purview of the
ESI Act. Considering the activities of the appellant-club and
that the kitchen catering forms an integral part of the
appellant-club, the High Court rightly held that the appellant-
club falls within the purview of the ESI Act and we do not find
any infirmity in the order passed by the High Court.
26. Learned counsel for the appellant-club then
submitted that the order under Section 45-A was passed in
1986 and by this time the contribution amount payable would
have accumulated and, therefore submitted that in case if the
Court holds that the employees of the appellant-club are
covered under the ESI Act, the contribution should be made
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prospective from the date of the order passed by this Court.
The Act being a beneficial legislation, the above contention
cannot be countenanced. ESI contribution ought to have been
paid when the demand was made in 1986. It is very
unfortunate that the appellant-club has not paid the ESI
contribution of its employees for more than three decades and
is not justified in seeking for prospective operation of the
order.
27. The impugned order of the High Court does not
suffer from any infirmity warranting interference. We find no
merit in the appeal and the same is dismissed.
……………………………..J. (T.S. Thakur)
……………………………. J. (R. Banumathi)
New Delhi; October 28, 2014
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