MUMBAI KAMGAR SABHA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS petition challenges the vires of notification dated 18th September 1978 issued by the 1st Respondent under section 1 (5) and section 1 (4) of the Employees State Insurance Act, 1948 hereinafter referred to as the Act.

(2.) THE Act has been passed to provide for certain benefits to employees in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. Being an enactment of the Union Government, the Act was made applicable in the first instance to all factories other than seasonal factories. Having regard to the sheer size and diversity of employments in the country, it was left to the appropriate Government to extend the provisions of the Act or any of them to "any other establishment or class of establishments, industrial commercial, agricultural or otherwise". The expression appropriate Government was to mean (i) the Central Government in respect of establishment under it control or a railway administration or a major port or a mine or oilfield, (ii) the State Government in all other cases. Section 1 (5) provides for consultation with the Corporation and approval of the Central Government, where the State Government extends the Act vide section (5 ). Corporation means the E. S. I. Corporation set up under the Act and in this petition is represented by its Regional Director, the 3rd respondent. Respondent No. 1 after the required consultation and approval on September 18, 1978 issued the assailed notification. Briefly stated, the notification took within its sweep the establishments etc. specified therein and made all the provisions of the Act applicable to them. The territory covered was the area within the limits of the municipal Corporation of Bombay and certain talukas of Thane District. The other division was in regard to establishments and others as under :-

(3.) PETITIONER No. 1 a trade union registered under the Trade unions Act, 1926, claims to have on its rolls a large number of workers employed in shops, commercial establishments, small workshop and printing presses in Greater Bombay. The notification deprives this unorganised and worst-oppressed section of the toiling masses of the basic health care and benefits available under the Act. This is done through the medium of the impugned notification. The said is ultra-vires the Act inasmuch as section 1 (5) does not permit classification on the basis of number of employees engaged in an establishment. Assuming that it does, the notification as also section 1 (4) are violative of Article 14 of the Constitution in that they deny the promise of equal protection of laws to the most deserving section of workmen. The restriction specified in the notification be voided and the State Government be directed to extend the benefits of the Act to all establishments irrespective of the size of the work force and use or otherwise of power.