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TMI Blog1986 (4) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... nto wheat products in its flour mill. It is not disputed that the mill of the respondent company is a factory within the meaning of the Factories Act, 1948. In or about the middle of 1964, the respondent company commenced the construction of another building in the compound of the existing factory for the expansion of the factory and engaged workmen for such construction on daily wage basis. The ESI Corporation called upon the respondent company to make contribution in respect of the workmen employed for the construction work of the factory building as required by the Employees' State Insurance Act, 1948, hereinafter referred to as 'the Act'. The respondent company moved the Madras High Court under Article 226 of the Constitution against the said demand. A learned Single Judge of the High Court took the view that the persons employed in the construction of a new unit of the factory were not employees within the meaning of the definition of the term 'employee' under Section 2(9) of the Act. In that view of the matter, the learned Judge allowed the writ petition of the respondent company. On appeal by the ESI Corporation to a Division Bench of the High Court, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Petition Nos. 1143-1145 of 1978, the respondent companies owning the textile mills workers for the construction of additional factory buildings. The Division Bench of the Madras High Court has following its earlier decisions taken the same view that the workers employed for the construction of additional factory buildings of the mills in question are not employed within the meaning of Section 2(9) of the Act. Hence the ESI Corporation has filed these Special Leave Petitions which, as aforesaid, have been heard along with the above appeal. 5. In view of the facts stated above, the only question that is involved in these appeals and the Special Leave Petitions is whether the workers employed for the construction of additional buildings for the expansion of the factories in question are employees within the meaning of Section 2(9) of the Act. Section 2(9) of the Act before the same was amended by the Amendment Act 44 of 1966 provided as follows: 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 pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at view, it appears that the Madras High Court has overlooked some other provisions of the Act which will be referred to presently. 8. Section 39 provides for contributions payable under the Act. Sub-section (4) of Section 39 provides as follows: The contributions payable in respect of each week shall ordinarily fall due on the last day of the week, and where an employee is employed for part of the week, or is employed under two or more employers during the same week, the contributions shall fall due on such days as may be specified in the regulation . 9. Sub-section (4) clearly indicates employment of a casual employee when it provides and where an employee is employed for part of the week . When an employee is employed for part of a week, he cannot but be a casual employee. We may also refer to Sub-section (3) of Section 42 relating to general provisions as to payment of contributions. Sub-section (3) reads as follows: Where wages are payable to an employee for a portion of the week, the employer shall be liable to pay both the employer's contribution and the employee's contribution for the week in full but shall be entitled to recover from the employee the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the casual workers were employed by the respondent company, namely, Shri Shakthi Textiles Mills Pvt. Ltd., not being the work of the factory or incidental or preliminary to or connected with the work of the factory, such workers cannot be employees within the meaning of Section 2(9) of the Act. The contention of the learned Counsel is that the work of the factory being 'weaving', an employee within the meaning of Section 2(9) must be employed on any work incidental or preliminary to or connected with the work of weaving that is carried on in the mill or factory. Counsel submits that the work of construction of factory buildings cannot be said to be an activity or operation incidental to or connected with the work of the factory, which is weaving. Mr. D.N. Gupta, learned Counsel appearing on behalf of the respondent companies in the other cases adopts the contention of Dr. Chitale and submits that the workers employed for the construction of the factory buildings do not come within the purview of the definition of 'employee' under Section 2(9) of the Act. 12. Therefore, the investigation under the principal question formulated above boils down to this, namely, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporation (1978) IILLJ 390 SC . The question that came up for consideration by this Court was whether the workers employed to run the canteen and the cycle stand situate within the compound of a 'cinema theatre' were employees within the meaning of Section 2(9) of the Act. It was held that the workers employed to run the canteen and the cycle stand were employees within the meaning of Section 2(9) of the Act. Krishna Iyer, J. speaking for the Court, observes: The expression in connection with the work of an establishment ropes in a wide variety of workmen who may not be employed In the establishment but may be engaged only in connection with the work of the establishment. Some nexus must exist between the establishment and the work of the employee but it may be a loose connection. 'In connection with the work of an establishment' only postulates some connection between what the employee does and the work of the establishment. He may not do anything directly for the establishment; he may not do anything statutorily obligatory in the establishment; he may not even do anything which is primary or necessary for the survival or smooth running of the establishment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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