Sawant, J.
1. The Insurance Inspector in the present case had noticed some vouchers presented by the salesmen in the employment of the appellant company. These vouchers included charges for hiring casual coolies from the road/street as an extra help for unloading the crates from the trucks of the company at various places where the bottles were to be supplied. There is no dispute that the salesmen were given the assistance of two permanent loaders for doing the job. However, the coolies hired by the salesmen were by way of an additional help to the said loaders. On the basis of the hiring charges of the said coolies mentioned in the said vouchers, the Insurance Inspector issued a notice to the appellant company to show cause as to why an additional contribution towards employees' insurance be not recovered from it in respect of the coolies so hired. The company replied-stating that the coolies so engaged were casual helpers picked up on the spot whenever salesmen found it necessary to give additional help to the permanent loaders. Hence, they were not employees within the meaning of the Act and no contribution was payable in respect of them. The Corporation was not satisfied and it directed the Collector, Bombay Suburban Division to recover Rs. 12,225/- and Rs. 8,920- as arrears towards E.S.C. and E.C. for the periods from 1st July 1968 to April 1970 and from May 1969 to April 1970 respectively. This was challenged by the appellants before the Insurance Court. However, the Court did not accept the appellants' contention. Against the decision of the Insurance Court an appeal was preferred to this Court. The same also came to be dismissed.
2. In this Letters Patent Appeal, therefore, the question that falls for consideration is whether the coolies who are so hired by the salesmen o'f the company to assist the permanent loaders are employees within the meaning of the Act in respect of which the E.S.C. and E.C. contribution was payable. On the facts available on record, we are of the view that to accept the contention that they should be regarded as employees within the meaning of the Act would be both against the object of the Act and impracticable. It must be remembered that the Act is a welfare legislation placed on the statute book to provide certain benefits to the employees of an establishment covered by the Act. The benefits include maternity and employment injury allowances. The regulations made under the Act further provide a detailed procedure for collection of contributions from the factories/establishments to which the Act applies and to enable the employees to claim the relevant benefits under, it. That procedure is laid down in Chapter II of the Employees' State Insurance General Regulations, 1950. Regulation 12 requires that before taking any person into employment, employer shall require the proposed employee to furnish and the proposed employee has to furnish the correct particulars required for the declaration form including the Temporary Identification Certificate and the employer has to enter the particulars in the Declaration Form including the Temporary Identification Certificate, obtain the signature or the thumb impression of such person and also to complete the form as indicated therein. The employer has then to send to the appropriate office, by registered post or messenger, the declaration form of the employee without detaching the temporary identification certificate together with the return in duplicate in Form 3 within 10 days from the date on which the particulars for the Declaration Form were furnished. Regulation 15 then states that on receipt of the return, the appropriate office of the Corporation shall promptly allot an Insurance Number to each person i.e. the employee in respect of whom the Declaration Form has been received. The office then detaches the Temporary Identification Certificate with insurance number marked thereon and returns it to the employer alongwith one copy of form 3 and the employer then delivers the Temporary Identification Certificate to the employee to whom it relates after obtaining his signature or thumb impression thereon.There is further no dispute that unless the employee is issued the Temporary Identification Certificate or Identity Card, as the case may be, the employee or his family is not entitled to the benefits under the Act.
3. The facts on record reveal that the Appellants' salesmen accompany the trucks carrying the crates of bottles to their customers. They are given the assistance of two permanent loaders to unload the crates at the customers' establishments. However, in case of need, they are also free to hire coolies who may be available at the place to assist the permanent loaders to unload the crates on charges negotiated on the spot which vary depending on the time, place and the magnitude of the work. The coolies are self-employed labourers acting on their own responsibility. The work does not last for more than a few minutes and is by its very nature of a ad hoc kind. The coolies so hired are of particular individual but those who are available on the spot at the particular time. They are not and cannot be employed by the salesmen on behalf of the Appellants since the salesmen have no such power given to them. There is no master and servant relationship created between them and the salesmen, much less between them and the Appellants. Although the work that they do is accessory to the work of the Appellants, they are transitory in nature and are not part of the Appellants' establishment or in their employment just as the hand-cart or bullock cart or taxi-drivers engaged for the Appellants work would not be part of their establishment or in their employment. There is, therefore, no contract of service but at best a contract for service with them.
4. This is apart from the fact that such fleeting labourers can never avail themselves of the benefits under the Act. It will be ridiculous to expect that everytime the salesmen engage coolies, they require them to fill in the declaration Form for the issue of temporary Identification Certificate which would ultimately be converted into an Identity Card entitling them to the benefits under the Act.
5. It is true that one of the vouchers prepared by a salesman which is on record shows that the salesman had taken down the names of certain persons engaged by him on a particular occasion. He had obviously done so to protect himself and to substantiate his claim for the charges mentioned in the voucher. It is not the case of the Corporation that the very same coolies were engaged by the salesman from time to time.
The mere fact therefore that the particular salesman had in a voucher mentioned the names of some coolies to whom he had paid charges would not make the coolies employees of the Appellants. We are, therefore, of the view that such labourers are not employees within the meaning of the Act and are not covered by it. Hence, the decision of the Courts below has to be set aside.
6. Mr. John for the appellants also tried to raise yet another point before us viz. the Corporation also paid to the salesmen commission on the sales, and if that commission is included in the salaries or wages of the salesmen they would exceed Rs. 500/-and by virtue of the definition of employee given in Section 2(9)(iii)(b) as it then stood, a person employed whose wages exceeded Rs. 500/- were excluded from the operation of the Act. Hence, the company was not liable to contribute ESC and E.C. on the salaries paid to the salesmen. We are not inclined to go into this question because admittedly it was not raised either before the insurance Court or before the learned Single Judge.
7. In the result, we set aside the impugned decision and allow the appeal. In the circumstances of the case, there will be no order as to costs.