M/s. Poona Hospital & Research Centre v. Employees State Insurance Corporation & Ors.

Shri K.S. Bapat i/by M/s. Desai & Desai Associates for the Appellant. Shri P.M.Palshikar for Respondent Nos.1 and 2. Shri A.H. Fatangare for Respondent Nos.3 and 4. -- CORAM : A.S. OKA, J DATED : 28TH SEPTEMBER, 2011 P.C. .

#2. Leave to amend as per the Draft tendered. Heard learned counsel appearing for the Appellant, the learned counsel appearing for the first and second Respondents and learned counsel appearing for the third and fourth Respondents.

#3. This is an Appeal where the challenge is to the judgment and order passed by the Employees’ Insurance Court, Pune, by which the Application made by the Appellant under Section 77 read with Sections 75 and 76 of the Employees State Insurance Act, 1948 (hereinafter referred to as “the said Act”) has been rejected. 2 fa-2080.08

#4. The challenge in the Application under Section 75 of the said Act was to an order made under Section 45A of the said Act. The show cause notice was issued as regards the contribution payable in respect of the employees in the kitchen/canteen run by the appellant/hospital.

#5. The coverage of the said Act was challenged on the ground that a kitchen is run in the premises of the hospital of the appellant only for the purposes of preparation of food for proper diet prescribed to the patients in the hospital. The contention of the Appellant is that the kitchen is not being run as a commercial activity as the patients are not charged for the food. It is contended that the employees in the kitchen are the employees of a contractor and that the kitchen is maintained in the hospital of the Appellant only for the purposes of maintaining hygiene. It is contended that no commercial activities are involved. The said contention raised by the Appellant has been rejected by the Trial Court.

#7. The submission of the learned counsel appearing for the Appellant is that the employees working in the kitchen are not the employees contemplated under the said Act. His submission is that the employees are not working under the supervision and control of the 3 fa-2080.08 Appellant. Learned counsel submitted that the preparation of the dietary food for the patients admitted in the hospital of the Appellant cannot amount to manufacturing activity especially when no amount is being charged by the Appellant for the food. His submission is that providing a dietary food made in the kitchen is a part of medical services rendered by the Appellant in its hospital.

#8. I have perused the averments made in the Application under Section 75 of the said Act. I have also perused the deposition of the witness Charuhas Prabhakar Thakar examined by the Appellant. The said witness was working as the Personnel & Liaison Officer with the Appellant. He stated that there is a kitchen in the hospital of the Appellant and the same is for the use of the staff of the hospital including the doctors and patients. He stated that the same is not open for the public. He stated that the kitchen is being maintained in the hospital only for the hygienic purposes and the employees working in the kitchen are the employees of the Contractor. He stated that the Appellant was providing medical aid to the employees working in the kitchen at par with its regular employees.

#9. In the cross-examination, he admitted that the Appellant was not charging the staff of the hospital for the kitchen facility but necessary amount is being paid by the Appellant to the Contractor. The 4 fa-2080.08 witness admitted that 8 to 10 employees were working in the kitchen. The witness also admitted that the Appellant used to look after cleanliness of the kitchen and the time for serving the food items is fixed by the Appellant.

#10. The evidence of the said witness examined by the appellant shows that the preparation of the food in the kitchen is not only for the patients but also for the members of the staff of the Appellant. The members of the staff may not be paying for the food supplied to them but admittedly the Appellant is paying the amount to the Contractor. The preparation of the food in the kitchen is certainly a manufacturing process which is carried out in the premises of the Appellant. The deposition of the witness examined by the Appellant shows that the Appellant has control over the activities of the employees in the kitchen. The case of the Appellant is that the kitchen is in the premises of the hospital.

#11. In paragraph 9 of the impugned order, the learned Judge has observed that it was not disputed by the Appellant that there are more than 10 employees working in the kitchen. The manufacturing process is carried out with the use of power.

#12. The case that the kitchen is used only for providing dietary 5 fa-2080.08 food to the patients admitted in the hospital will have to be discarded in view of the evidence of the said Charuhas Thakar.

#13. There is no case made out for interference with the impugned order. There is no substantial question of law involved. The Appeal is accordingly dismissed with no orders as to costs. ( A.S. OKA, J )