D.R. Dhanuka, J.
1. The Employees' State Insurance Court has preferred this appeal against order dated 30th December, 1986 passed by the Employees' State Insurance Court, Bombay on Application (ESI) No. 27 of 1984.
2. By the impugned order, the trial Court held that the appellant establishment was not a 'shop' under notification No. ESI - 1677/3910/PH-15 dated 18th September 1978 issued by the Government of Maharashtra extending the provisions of the Employee's State Insurance Act, 1948 to other establishments and the establishment was not covered under the provisions of the said Act with effect from 12th November, 1978. The trial Court also held that the two orders dated 10th May, 1982 imposing damages amounting to Rs. 29,274/- on the respondent herein were not valid. In view of the above findings, the trial Court passed necessary consequential orders.
3. It appears that the trial Court mainly relied on the judgment of this Court in the case of M/s. Dattaram Advertising Pvt. Ltd. v. The Regional Director, Employees' State Insurance Corporation in First Appeal No. 2691 of 1983 being judgment and order dated 4th March, 1986. It must be stated here and now that the supreme Court has reversed the view taken by this Court in the above referred case and also similar view taken by High Courts of Madras and Kerala in this behalf as obvious from the judgment of the Supreme Court in the case of Employees' State Insurance Corporation v. R. K. Swamy & Ors. 1993 2 CLR 1068. It is the view of the Apex Court that the expression 'shop' does not mean merely a house or building where goods are sold or purchased. It appears from the ratio of the judgment of the Supreme Court in the case of M/s. International Ore and fertilizers (India) Pvt. Ltd. that a place of business or a place where one's ordinary occupation is carried on also can be treated as a 'shop' within the meaning of the above referred notification. Similar view was taken by the Supreme Court in the case of M/s. Cochin Shipping Company referred in para 12 of its latest judgment in E. S. I. Co v. R. K. Swamy.
4. It is not disputed that all the factories of areas where the respondent company are situated in such areas where the provisions of the Act are not applicable. The respondent manufactures steel pipes, Die-Intermediates, Paper etc. having its factories at Khapoli, Boisar and Banah in the State of Punjab. The only question before the trial Court was as to whether the registered office of the applicant situated at Moti Mahal, Churchgate, Bombay was an 'establishment' (i.e. the shop) covered under provisions of the Act. One Jagdish Prasad Ishardas was examined as a witness on behalf of the respondent at the trial of the above referred application. The said witness admitted in his evidence that at the said registered officer 85-90 employees were working and the departments concerned deal with follow up of sales of all the factory units from time to time.
5. In view of the above referred evidence and in view of the judgment of the Supreme Court in the above referred case of E. S. I. Corporation v. R. K. Swamy & Ors. 1993 2 CLR 1068 and the decisions of the Supreme Court referred to in paras 11 and 12 of the said judgment, I have no hesitation in over ruling the finding of the trial Court on issue Nos. 1, 2 and 3. I hold that the applicant's establishment is covered under the provisions of the said Act with effect from 12th November, 1978 and the respondent in this appeal is liable to pay contributions to the appellants under the provisions of the Act for the period commencing from 12th November, 1978. I also hold that the dispute raised by the respondent herein was not time barred.
6. The trial Court held that the two orders passed by the Corporation levying damages on the respondents in this appeal being orders dated 10th May, 1982 were not sustainable in law as the said orders were not speaking orders. I uphold the finding of the trial Court on this aspect. Section 85-B of the Act empowers the corporation to levy damages in the nature of penalty. There was a difference of opinion on the question as to whether the offices could be treated as 'shops' under the above referred notification dated 18th September, 1978, From this point of view also it would not be proper to levy damages in the nature of penalty. The trial Court has rightly set aside the two orders dated 10th May, 1982 imposing damages amounting to Rs. 29,274/-
7. In the result, the appeal is partly allowed. It is hereby declared that the registered office of the respondent is covered by and under the provisions of the Employees' State Insurance Act, 1948 with effect from 12th November, 1978 and the respondent herein is liable to pay the amount of statutory contribution to the appellants as provided under the said Act for the period commencing from the date when they were first notified i.e. 26th December, 1979.
8. The Court is informed by the learned counsel for the appellant that the respondent has already paid the said amount to the appellant. The appellant need not refund the said amount to the respondent as the controversy which is the subject matter of the appeal is resolved in favour of the appellants except in respect of damages levied as set out in para 9 of this order.
9. The orders dated 10th May, 1982 passed by the Employees State Insurance Corporation imposing damages in sum of Rs. 29,274/- on the respondents are quashed.
10. Having regard to the facts and circumstances of the case, there shall be no order as to costs.