No.13/2003 declared that the establishment of the respondent is a ‘shop’ as per Section 1(5) of the Act and the provisions of the Act would extend to the respondent w.e.f. Learned counsel for the appellant submitted that the order passed by the High Court is not in conformity with the law as the respondent establishment will be covered under the provisions of the Act in terms of the notification dated 27.05.1976 issued by the Government of Kerala in exercise of the powers conferred under the Act. Notification dated 27.05.1976, issued by the Government of Kerala, does not cover the establishment of the kind that the respondent has, which is pathological laboratory. (ii) Section 1(5) of the Act provides that 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, can extend the provisions of the Act by issuing a notification in the official gazette, to any other establishment or class of establishments.
The same is defined under Section 2(k) of the Factories Act, 1948 which is reproduced herein below: “2(k)
“manufacturing process” means any 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; ” 8.
The stand taken by the appellant is that the respondent establishment will be covered in view of the notification dated 27.05.1976 issued by the Government of Kerala, the relevant part whereof is extracted below: “GOVERNMENT OF KERALA LABOUR (E) DEPARTMENT NOTIFICATION 16141/E2/75/LBR Dated, Trivandaram 27 May 1976 S R O No.559/76 –
In exercise of powers conferred 1948 (Central Act 34 of 1948), the Government of Kerala having already given six months’ notice as required thereunder. published as SRO BNO.1070/75 in the State Gazette dated 18.11.1975 hereby appoints the midnight of 29 shall extend to the classes of establishment and in areas as specified in the schedule annexed hereto:- SCHEDULE Description of establishment Area in which the establishments are situated 1 2 xxx xxx
The following establishments 10 or more persons are employed or where employed for any day of preceding 12 months namely: Hotels Restaurants Shops Road Motor Transport Establishment Cinema including preview Theaters Newspaper establishment as defined in Section 2(d) of the Working Journalists (Conditions of Service and Miscellaneous Provisions) Act, 1955 (45 of 1955) Whole of the State of Kerala where the benefit provisions of Chapter IV, V and VI of the Act have already been brought into force by the Central Government under Section(3) of the Employees State Insurance Act, 1948 (Central Act 34 of 1948) except the areas where the scheme has already been extended with effect from the midnight of 29 March 1975 vide notification No.22877/E2/73LBR dated 22.03.1975 published in the Kerala Gazette dated 25 March 1975 as SRO No.288/75 10. Though it is claimed that the respondent establishment would be covered under the provisions of the Act in terms of the Notification dated 27.05.1976, however, before the E.S.I.
(P) NO/116/2007/LBR Dated, Thiruvanthapuram 6 September 2007 S R O No.749/2007 – In exercise of the power conferred by sub-section (5) of Section 1 of the Employees’ State Insurance Act 1948 (Central Act 34 of 1948), the Government of Kerala in consultation with the Employees’ State Insurance Corporation and with the approval of the Central Government and after having given six months’ notice of its intention to do hereby extend the provisions of the said Act to the classes of establishments specified in Column (1) of the Schedule annexed hereto and situated in the areas specified in column (2) thereof with immediate effect SCHEDULE Description of establishment Areas in which the establishments are situated Medical institution (including corporate, joint sector, trust, charitable, and private ownership hospitals, nursing homes, diagnostic centre, pathological laboratories wherein 20 or more persons are employed or were employed on any day of the preceding twelve months Areas where the scheme has already been brought into force under sub-section (2) and (5) of Section 1 of the Act 13.
The argument raised by the appellant that the respondent establishment should be deemed to be covered in terms of the Notification issued on 27.05.1976 read with the Circular dated 22.11.2002 issued by the Corporation, is merely to be noticed and rejected.
Clause 23 of the aforesaid letter shows that even as per the earlier Memo dated 06.01.1989, pathological laboratories were not covered as shops under Section 1(5) of the Act. (Hima Kohli)……………….., J.
Case Title: E.S.I. CORPORATION, REP. BY REGIONAL DIRECTOR Vs. M/S ENDOCRINOLOGY AND IMMUNOLOGY LAB (2023 INSC 691)
Case Number: C.A. No.-003368-003368 / 2012
