Transport Corporation of India V

Transport Corporation of India v. Employees' State Insurance Corpn. & Anr.
IN THE HONBLE
SUPREME COURT OF INDIA
Transport Corporation of India
(Appellant)
v.
Employees' State Insurance Corpn. & Anr.
(Respondent)
MEMORANDUM FOR THE APPELLANT

COUNSEL FOR APPELLANT
(GAURAV BAKSHI)
ROLL NO.:052 SECTION A
SEM: V
HIDAYATULLAH NATIONAL LAW

UNIVERSITY, RAIPUR
Date Of submission: 26/09/16
1|Memorandum on behalf of Appellant
TABLE OF CONTENTS
LIST OF ABBREVIATIONS___________________________________________________ 3
INDEX OF AUTHORITIES____________________________________________________ 4
STATEMENT OF JURISDICTION______________________________________________5
STATEMENT OF FACTS______________________________________________________6
ISSUES RAISED______________________________________________________________8
SUMMARY OF ARGUMENTS_________________________________________________ 9
ARGUMENTS ADVANCED___________________________________________________10
1. THE NOTIFICATION ISSUED BY THE STATE OF ANDHRA PRADESH UNDER SECTION 1 (5)
OF THE ACT COVERING THE TRANSPORT UNDERTAKINGS OF THE APPELLANT, WHOSE
REGISTERED HEAD OFFICE WAS SITUATED IN SECUNDERABAD IN THE STATE OF ANDHRA
PRADESH, WILL
NOT COVER ITS BRANCH LOCATED AT
BOMBAY
IN THE
STATE
OF
MAHARASHTRA.________________________________________________________10
1.1. APPROPRIATE GOVERNMENT FOR HEAD OFFICE IN STATE OF ANDHRA PRADESH WILL
BE DIFFERENT FROM THE BRANCH LOCATED IN STATE OF MAHARASHTRA.
2. FOR
THE PURPOSE OF APPLICABILITY OF THE
ACT
________10
TO THE APPELLANT'S
BOMBAY
BRANCH, A SEPARATE AND INDEPENDENT NOTIFICATION IS REQUIRED TO BE ISSUED BY

THE STATE OF MAHARASHTRA UNDER SECTION 1(5) OF THE ACT.________________12
2.1.BRANCH OFFICE OF BOMBAY SHALL NOT BE COVERED UNDER THE NOTIFICATION ISSUED
BY THE EMPLOYEE STATE CORPORATION OF STATE OF ANDHRA PRADESH._______12
PRAYER FOR RELIEF_________________________________________________14
LIST OF ABBREVIATIONS
&
And
AIR
All India Reporter
Anr.
Another
Ed.
Edition
Etc.
Et Citra.
Govt.
Government
Honble
Honourable
HC
High Court
Ors.
Others
P.
Page Number
SC
Supreme Court
SCC
Supreme Court Cases
v.
Versus
www
world wide web
V.P.
Value Payable
INDEX OF AUTHORITIES
CONSTITUTION:
THE CONSTITUTION OF INDIA, 1950
EMPLOYEES STATE INSURANCE ACT, 1948
JUDICIAL DECISIONS:
E.S.I.C. v. New India Maritime Agencies, ( 1980 ) II LLJ 232 Ker
Spencer & Co. Ltd. Ernakulam v. Regional Director, E.S.I.C. Trichur, (1991) I L.L.J. 541
(Kerela)
BOOKS REFERRED:
MISHRA, S.N., LABOUR AND INDUSTRIAL LAWS, 27TH EDITION
DICTIONARIES:
CONCISE OXFORD DICTIONARY, 10TH. ED., OXFORD UNIVERSITY PRESS, 2002
th
BRYAN AND GARNER, BLACK'S LAW DICTIONARY, (6 Edn. Sweet & Maxwell)
WEBSITES:
www.manupatra.com
www.scconline.com
www.indiankanoon.com
www. lites.law.rajasthan.gov.in
STATEMENT OF JURISDICTION
Appellants has approached the Honble Supreme Court of India under Article 136 of the
Constitution of India.
STATEMENT OF FACTS
The Transport Corporation of India, which is a public limited company, incorporated under the
Indian Companies Act, 1956, has brought in challenge the decision of Division Bench of the
High Court of judicature at Bombay, on grant of special leave to appeal.
The dispute in the present case between the parties arose on account of the fact that on July 29,
1986, the Deputy Regional Director, Employees' State Insurance Corporation, Bombay served
show cause notice upon the appellant to explain as to why the contributions should not be paid
by it for a period commencing from May, 1981 and ending with November, 1985 in respect of its
branch office at Bombay. The appellant filed reply claiming that the contribution was paid from
August 1, 1985 onwards under protest but the branch of the appellate in Bombay was not
covered by the Act during the relevant period. The Deputy Regional Director passed an order
dated September 8, 1988 in exercise of powers under Section 15A of the Act assessing
contribution for the period commencing from May, 1981 to July, 1985. It was held that once the
main establishment in Andhra Pradesh is covered by the notification issued by the State of
Andhra Pradesh, then the branches of the establishment, wherever they are situated, also stood
covered. Under the circumstances, the appellant moved the High Court of Bombay in Writ
Petition No. 931 of 1989 challenging the legality of the order passed by the Employees' State
Insurance Corporation. The learned Single Judge at Bombay High Court by his judgment dated
30.4.1993 held that the appellant's establishments in the State of Maharashtra were not covered
by the notification issued under Section 1(5) of the Act by the State of Andhra Pradesh.
Accordingly, the learned Single judge quashed the impugned order dated September 8, 1988
passed by the authorities functioning under the Act whereby the appellant was called upon to
contribute Rs. 2,09,914, along with interest.
Diviosion bench of the High Court accepted accepted the appeal and took the view on interpretation
of the relevant provisions of the Act that once the head office was covered by the notification issued
by the State of Andhra Pradesh, it being the main establishment, its branches which carried on the
work of the main establishment, got covered by the sweep of the said notification and, therefore, the
provisions of the Act were rightly pressed in service by the authorities functioning under the Act
against the appellant so far as its Bombay branch employees

were concerned. The writ appeal was, accordingly, allowed and the judgment of the learned
Single Judge was set aside.
ISSUES RAISED
1. Whether the notification issued by the State of Andhra Pradesh under Section 1 (5) of the
Act covering the transport undertakings of the appellant, whose registered head office
was situated in Secunderabad in the State of Andhra Pradesh, could automatically cover
its branch located at Bombay in the State of Maharashtra; and
2. Whether for the purpose of applicability of the Act to the appellant's Bombay branch, a
separate and independent notification was required to be issued by the State of
Maharashtra under Section 1(5) of the Act?
SUMMARY OF ARGUMENTS
1. The notification issued by the State of Andhra Pradesh under Section 1 (5) of the Act
covering the transport undertakings of the appellant, whose registered head office was
situated in Secunderabad in the State of Andhra Pradesh, will not cover its
branch located at Bombay in the State of Maharashtra.

The notification issued by the State of Andhra Pradesh under Section 1 (5) of the Act covering
the transport undertakings of the appellant, whose registered head office was situated in
Secunderabad in the State of Andhra Pradesh, will not cover its branch located at Bombay in the
State of Maharashtra because of the difference in the states. And due to this the appropriate
Government will be different.
2. For the purpose of applicability of the Act to the appellant's Bombay branch, a
separate and independent notification is required to be issued by the State of
Maharashtra under Section 1(5) of the Act.
A separate and independent notification is required to be issued by the State of Maharashtra
under Section 1(5) of the Act because branch office is located in the State of Maharashtra and the
notification is issued by the Government of Andhra Pradesh.
ARGUMENTS ADVANCED
1. The notification issued by the State of Andhra Pradesh under Section 1 (5) of the Act
covering the transport undertakings of the appellant, whose registered head office was
situated in Secunderabad in the State of Andhra Pradesh, will not cover its
branch located at Bombay in the State of Maharashtra.

The Employees' State Insurance Act, 1948 is enacted to provide for certain benefits to employees
in case of sickness, maternity and employment injury and to make provisions for certain other
matters in relation thereto Sub-section 2 of Section 1 of the Act lays down that:
It extends to the whole of India, it is, therefore, obvious that it is a Central Act, which the
Parliament intended to operate throughout the country.
1.1. Appropriate Government for head office in State of Andhra Pradesh will be different
from the branch located in State of Maharashtra.
Section 2(1) defines appropriate Government as:
appropriate Government means, in respect of establishments under the control of the Central
1
Government or [a railway administration] or a major port or a mine or oil-field, the Central

2
Government, and in all other cases, the [State] Government.

It is, therefore, obvious that as the appellant's establishment was not under the control of the
Central Government or a railway administration etc., it was the State Government which was the
'appropriate Government' for deciding the applicability of the Act to the appellant's concern.
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,
after giving six months notice of its intention of so doing by notification in the Official Gazette,
extend the provisions of this Act or any of them, to any other establishment or class of
establishment, industrial, commercial, agricultural or otherwise.
Substituted for federal railway by the A.O. 1950.
Substituted for Provincial by the A.O. 1950.
S.N. Mishra, Labour & Industrial Laws, 27th Edition
10 | M e m o r a n d u m o n b e h a l f o f A p p e l l a n t

4
In E.S.I.C. v. New India Maritime Agencies , it was held that treating branches in different state
as one unit would depend upon the evidence in the case. If different offices are carrying out work
of one central establishment, naturally, despite the fact that the offices are located at different
places, employees who are so stationed in different places can be said to be employees in the
establishment whose work they are carrying out at such places. But if they are not doing the
work of the establishment which is sought to be covered though they may be blanches of the
same company there is no question of treating all of them as one establishment or any one of
them as an establishment whose employees are employed in the other offices.
It is humbly submitted that the appropriate Government for the branch located in Bombay will be
the Government of Maharashtra.
( 1980 ) II LLJ 232 Ker

2. For the purpose of applicability of the Act to the appellant's Bombay branch, a
separate and independent notification is required to be issued by the State of
Maharashtra under Section 1(5) of the Act.
The State of Andhra Pradesh covering the appellant's head office & the regional office at
Secunderabad, the applicability of which to the Bombay branch, is on the anvil of consideration
in the present case. The said notification reads as under:
In exercise of powers conferred by Sub-section (5) of Section 1 of the Employees State
Insurance Act, 1948 (34 of 1948), the Government of Andhra Pradesh, after giving six months'
notice as required thereunder by the Government of Andhra Pradesh Notification issued in ]
G.O.Ms.No.788, Health, dated 25th September, 1974 and published in the A.P. Gazette No. 315,
dated September 25, 1974, hereby extends with effect from the 30th March, 1975, all the
provisions of the said Act to the classes of establishments specified.
The thrust of Sub-section 6 of Section 1 is to the effect that even if the appellant's road motor
transport establishment-head office at Secunderabad having employed twenty or more persons
during the relevant time got covered by the Act, if subsequently the number of employees so
employed fell below twenty, the applicability of the Act would continue for the benefit of the
employees of the appellant's concern.
2.2.Branch office of Bombay shall not be covered under the notification issued by the
Employee State Corporation of State of Andhra Pradesh.
5
In Spencer & Co. Ltd. Ernakulam v. Regional Director, E.S.I.C. Trichur, the registered office of the
company was situated outside the State of Kerala and the company was allegedly having its two
branches, one each in Fort Cochin and Ernakulam. It was held that in the absence of a finding that the
employees working in the Fort Cochin branch are under the control or supervision of Ernakulam
branch or that they were doing work connected with the work of Ernakulam branch or the vice versa
there is no justification for linking the employees of the two branches. Ernakulum branch is not
acting as area office under which the Fort Cochin branch is functioning. Therefore, Fort Cochin
branch is an independent establishment and will not be covered by the notification issued regarding
the application of the Act in respect of Ernakulam branch.
(1991) I L.L.J. 541 (Kerela)

It is humbly submitted that the due to difference in states branch office located in Bombay will
not be covered by the notification issued by the Government of Andhra Pradesh.
PRAYER FOR RELIEF

Therefore in the lights of the facts stated, authorities cited, arguments advanced, the Appellant
humbly requests the Honble Court to adjudge and declare that:-
1. There shall be a separate noticafication issued by the state of maharastra to cover

the branch office of transport undertakings of the appellant under Employees State
Insuarance Act, 1948.
2. The decision of the high court shall be reversed.
And, pass any order or decree in the favor of the Appellant as the Court may deem fit in the
lights of Justice, Equity & Good Conscience.
All of which is most humbly prayed.
COUNSEL ON BEHALF OF APPELLANT
TH
26
GAURAV BAKSHI
SEPTEMBER 2016

Transport Corporation of India V

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Transport Corporation of India v. Employees' State Insurance Corpn. & Anr.

MEMORANDUM FOR THE APPELLANT

HIDAYATULLAH NATIONAL LAW

1|Memorandum on behalf of Appellant