Bangalore Turf Club
Ltd. Vs. Regional Director, ESI Corporation  INSC 843 (28 April 2009)
REPORTABLE IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2416 OF
2003 Bangalore Turf Club Ltd. .... Appellant Versus Regional Director, ESI
Corporation .... Respondent WITH Civil Appeal Nos. 49/2006 and 1575/2006
Heard learned counsel
for the parties.
The short question
involved in these cases is whether the appellant Turf Clubs are covered by the
Employees' State Insurance Act, 1948 (for short the 'ESI Act').
Under Section 1
sub-section (5) of the ESI Act all establishments are not automatically covered
by the said Act but only such establishments as are mentioned in the
notification issued by the appropriate Government under Section 1(5). This
provision is not like sub-section (4) of Section 1 by which all factories are
automatically covered by the ESI Act. The notifications issued under Section
1(5) in these cases use the word 'shop' and it has been held by the impugned
judgments in these cases that the turf clubs are shops. Reliance in this behalf
has been placed on the judgment of this Court in (6)SCC,191.
With great respect to
the aforesaid decision in the case of Hyderabad Race Club (supra), we think
that the said decision requires reconsideration. In common parlance a club is
not a shop.
The word 'shop' has not
been defined either in the ESI Act or in the notification issued by the
appropriate government under Section 1(5). Hence, in our opinion, the meaning
of 'shop' will be that used in common parlance. In common parlance when we go
for shopping to a market, we do not mean going to a racing club.
Hence, prima facie,
we are of the opinion that the appellant-club is not a shop within the meaning
of the Act or the notification issued by the appropriate government.
In our opinion, the
error in the judgment in the case of Hyderabad Race Club (supra) is that it has
been presumed therein that all establishments are covered by the Act. That is
not correct. Only such establishments are covered as are notified under Section
1(5) in the official gazette.
The High Court in the
impugned judgment has placed reliance on the judgment of this Ors.1978(2) SCC,
213. In our opinion,reliance on the aforesaid decision is wholly misplaced. The
definition of 'industry' in the Industrial Disputes Act is very wide as
interpreted in the aforesaid decision. We cannot apply the judgment given under
a different Act to a case which is covered by the ESI Act. Under various labour
laws different definitions have been given to the words 'industry' or 'factory'
etc. and we cannot apply the definition in one Act to that in another Act
(unless the statute specifically says so). It is only where the language used
in the definition is in pari materia that this may be possible.
Hence, we are of the
opinion that the decision of this Court in the case of Hyderabad Race Club
(supra) should be reconsidered by a larger Bench. In the meantime, the
respondents shall not raise any demand against the appellant-clubs.
Let the papers of
these cases be placed before Hon'ble the Chief Justice of 3 India for constituting
an appropriate Bench.