Kailasanatha Vidya Nikethan v. Employees' State Insurance Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **WEDNESDAY, THE 2ND DAY OF JULY 2014/11TH ASHADHA, 1936** ## **INS.APP.No. 37 of 2012** ## **--------------------------------** ## **AGAINST THE ORDER IN IC 108/2009 of EMPLOYEES INSURANCE COURT, PALAKKAD DATED 27-02-2012** **--------------** ## **APPELLANT/APPLICANT:** **------------------------------------** **KAILASANATHA VIDYA NIKETHAN, MOUNT KAILAS, MULLAKARA, MANNUTHY.P.O., THRISSUR-680651, REPRESENTED BY ITS EXECUTIVE DIRECTOR, MALLIKA PURUSHOTHAMAN.** **BY ADVS.SRI.M.B.PRAJITH SRI.K.K.PREMALAL** ## **RESPONDENT(S)/OPPOSITE PARTIES:** **------------------------------------------------------** **1. EMPLOYEES STATE INSURANCE CORPORATION, REP. BY ITS REGIONAL DIRECTOR, ROUND NORTH, THRISSUR-680001.** **2. THE RECOVERY OFFICER,** - **E.S.I. CORPORATION, ROUND NORTH THRISSUR-680001.** **3. ANUSMITHA BIJU, KAILASANATHA VIDYA NIKETHAN, MOUNT KAILAS, MULLAKKARA, MANNUTHY, THRISSUR-680651.** ## **R1 & 2 BY ADVS. SRI.P.SANKARANKUTTY NAIR, SC, ESI CORPN SRI.SANDESH RAJA** **THIS INSURANCE APPEAL HAVING BEEN FINALLY HEARD ON 02-07-2014, ALONG WITH INS.APP.NO.38/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **[CR]** ## **B.KEMAL PASHA, J.** ````````````````````````````````````````````````````````````` Ins. Appeal Nos.37, 38, 39, 40, 60, 79, 89, 90 & 99 of 2012 and 30, 31, 35, 36, 38 & 40 of 2014 ````````````````````````````````````````````````````````````` _Dated this the 2[nd] day of July, 2014_ ## **COMMON JUDGMENT** ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ (i) Can CBSE schools in the State of Kerala being run by individuals, trustees, societies or other organisations be brought within the category of 'educational institutions' mentioned in the impugned notification? (ii) Whether the Government of Kerala is the 'appropriate Government' within the meaning of Section 2(1) read with Section 1(5) of the ESI Act empowered to issue the impugned notification? (iii) Whether the decision in _**C.B.S.E. School Management's Association Vs. State of Kerala [2009 (3)**_ _**KLT 421]**_ acts as _res judicata_ to contend that the Ins.Appl.No.37/2012 & connected cases : 2 : Government of Kerala is not empowered to issue the impugned notification? (iv) Whether the teachers of CBSE Schools being run by such organisations be 'employees' within the meaning of Section 2(9) of the ESI Act? (iv) Whether the impugned notification can be extended in the case of such teachers? These are the common questions of law arise in all these appeals. 2. These are appeals of similar nature filed by various CBSE schools being run by different individuals, trustees, societies or other organisations in the State of Kerala, challenging notification G.O. (P) No.135/2007/LBR dated 08.10.2007 issued by the Government of Kerala ('the impugned notification', for short), extending the provisions of the Employees' State Insurance Act, 1948 ('the ESI Act', for short) to educational institutions run by individuals, trustees, societies or other organisations, wherein 20 or more Ins.Appl.No.37/2012 & connected cases : 3 : persons are employed or were employed on any day of the preceding twelve months. Challenging C11 and C18 notices issued by the Employees State Insurance Corporation ('the ESI Corporation', for short), the said various schools have approached the Employees' Insurance Court through the insurance cases. Their cases stand dismissed through the impugned judgments. 3. Heard the learned Senior Counsel Sri.N.Sugunapalan and the learned Counsel Sri.K.K.Premalal for the appellants, and Sri.Sandesh Raja K. and Sri.T.V. Ajayakumar for the ESI Corporation. 4. The learned Senior Counsel for the appellants has taken this Court through various provisions of the ESI Act, Industrial Disputes Act, Minimum Wages Act, Kerala Education Act and Rules and the Affiliation byelaws of the Central Board of Secondary Education, and strenuously argued that such CBSE Schools being run by the individuals, trustees, societies or other organisations in the Ins.Appl.No.37/2012 & connected cases : 4 : State of Kerala are also establishments 'under the control of the Central Government' and therefore, the Government of Kerala, not being the 'appropriate Government' within the meaning of Section 2(1) read with Section 1(5) of the ESI Act, is not empowered to issue the impugned notification. It is also argued that teachers are practising a 'profession' and not an 'occupation' and, therefore, it cannot be said that teachers are workers or workmen. The learned counsel Sri.Premalal has further argued that the decision in _**C.B.S.E. School Management's Association** (supra)_ does not lay down the correct law on the subject, as the decision is _per incuriam_ of the other decisions of the Apex court in the matter. It is also argued that teachers of CBSE Schools can never be categorised as 'employees' within the meaning of Section 2(9) of the ESI Act. 5. _Per contra_ , the learned Standing Counsel for the ESI Corporation Sri. Sandesh Raja K. and Sri. T.V. Ajayakumar argued that the ESI Act as such is a Ins.Appl.No.37/2012 & connected cases : 5 : self contained Code, which is capable of giving a wider amplitude to the definition of ' _employee_ ' so as to take in the teachers of CBSE Schools also within its sweep. It is also argued that the CBSE Schools, which are merely affiliated to the CBSE Board, cannot be categorised as institutions 'under the control of the Central Government'. It has also been argued that the Government of Kerala is the 'appropriate Government', who can issue the impugned notification as decided by the _**C.B.S.E. School Management's Association** (supra)_ and also _**State of Kerala Vs. Mythri Vidya Bhavan E.M. School [2013 (1) KLT SN 36 (C.No.36)]**_ . Further, the learned Standing Counsel for the ESI Corporation have argued that being a social legislation, which is a welfare legislation meant to protect the employees of such schools who are, in fact, downtrodden in the society, a liberal interpretation favouring such employees is required to be adopted even in a case wherein any such terms used in the Act is capable of Ins.Appl.No.37/2012 & connected cases : 6 : different interpretations. In such cases, the one favourable to the beneficiaries in such cases has to be adopted, it is argued. It is also argued that being a self contained Code, the definition of the term ' _employee_ ' as contained in the ESI Act cannot be interpreted by making use of the definition of ' _workman_ ' as contained in Section 2(s) of the Industrial Disputes Act, or ' _employee_ ' as contemplated under Section 2(i) of the Minimum Wages Act. The learned Standing Counsel for the ESI Corporation have pointed out that the decision in _**C.B.S.E. School Management's Association** (supra)_ is not _per incuriam_ as no decision of the Apex court on the concerned subject matter was available to be dealt with in it. 6. The learned Senior Counsel Sri.Sugunapalan has argued that the preamble of the ESI Act as well as various provisions in it including Section 1(5), Section 2(6A), Section 2(9), Section 2(13), Section 2(13A), etc. clearly give an indication and impression that it should be for the protection Ins.Appl.No.37/2012 & connected cases : 7 : and benefits of the employees of a factory or such industrial concerns and not meant for teachers of an educational institution like a CBSE School. Section 1(5) of the Act reads as follows:- _“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 establishments, industrial, commercial, agricultural or otherwise.”_ 7. The argument is that Section 1(5) makes it clear that the provisions of the said statute can be extended to 'any other establishment or class of establishments, industrial, commercial, agricultural or otherwise'. The argument in short is that the term “ _or otherwise_ ” does not Ins.Appl.No.37/2012 & connected cases : 8 : give any blank cheque to the Government to bring any establishment, which is totally alien to an industrial, commercial or agricultural establishment within the sweep of the ESI Act. The term ' _employee_ ' is defined in Section 2(9) as “ _any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies, and ....._ .”. It has also been pointed out that Section 2(13) defines the term “ _immediate employer_ ”, wherein also it has been mentioned that ' _a factory or an establishment to which this Act applies_ '. Similar is the wording in Section 2 (13A) also. The learned Senior Counsel has argued that by extending the principle of _ejusdem generis,_ the term “ _or otherwise_ ” as contained in Section 1(5) of the Act can only bring in establishment similar to industrial, commercial or agricultural alone. 8. On a careful consideration of the term “ _or otherwise_ ” as contained in Section 1(5) of the ESI Act, it is evident that the legislature has carefully worded the said Ins.Appl.No.37/2012 & connected cases : 9 : provision so as to include any other establishment within the sweep of Section 1(5) of the ESI Act. It has to be noted that if the intention was to include establishment similar to industrial, commercial or agricultural alone as establishments, definitely, the legislature would have worded it as “ _such other establishments of similar nature_ ”. At the same time, in Section 1(5), the legislature has used the term “ _or otherwise_ ”. In the absence of any specific term to invite a presumption that what is intended is establishments similar to industrial, commercial or agricultural in nature, it has to be noted that the legislature has carefully given a blank cheque to the appropriate Government to bring any establishment wherein employees are working, within the sweep of Section 1(5) of the Act. 9. Regarding the definition of _'employee_ ' as contained in Section 2(9) of the ESI Act, the learned Senior Counsel as well as the learned counsel for the appellants have pointed out that the legislature has never meant to Ins.Appl.No.37/2012 & connected cases : 10 : bring an employee of an educational institution within the said definition. The attention of this Court has been invited to Section 2(s) of the Industrial Disputes Act, 1947 as well as Section 2(i) of the Minimum Wages Act, 1948 to canvas an argument that teachers of an educational institution cannot be brought within the purview of ' _employee'_ within the meaning of Section 2(9) of the ESI Act. 10. Section 2(s) of the Industrial Disputes Act defines “ _workman_ ” as “' _any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, ........._ ”. Therefore, Section 2(s) is confined to a workman of _any industry_ . Such workman should be _a person who is employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward_ . In Section 2(i) of the Minimum Wages Act, 1948, the term _'employee'_ is defined as “ _any person who is employed for hire or reward to do any_ Ins.Appl.No.37/2012 & connected cases : 11 : _work, skilled or unskilled, manual or clerical, in a scheduled employment in respect of which minimum rates of wages have been fixed ....._ ”. Therefore, in order to bring a person in the category of an 'employee' within the meaning of the Minimum Wages Act, 1948, he should be _in a scheduled employment in respect of which minimum rates of wages have been fixed_ . When the Industrial Disputes Act brings a workman in respect of any industrial establishment, the Minimum Wages Act brings an employee within the purview of the said Act only when he is in a scheduled employment in respect of which minimum rates of wages have been fixed. Therefore, the legislative intend for bringing a person within the scope of Section 2(s) as a 'workman' under the Industrial Disputes Act, and a person as an 'employee' within the meaning of Section 2(i) of the Minimum Wages Act, is totally different. The same cannot be equated at all. When the Industrial Disputes Act is confined to an industrial establishment alone, the term ' _employee'_ in the Minimum Ins.Appl.No.37/2012 & connected cases : 12 : Wages Act is confined to any scheduled employment for which minimum wages have been fixed. 11. On going through the Minimum Wages Act, the definition of _'employee_ ' as contained in Section 2(i) of the said Act has a wider amplitude than the definition of ' _workman_ ' as contained in Section 2(s) of the Industrial Disputes Act. Same is the question with regard to the ESI Act also. It is evident that the definition of the term _'employee'_ as contained in Section 2(9) of the ESI Act has a wider amplitude than that of a ' _workman_ ' as contained in Section 2(s) of the Industrial Disputes Act and _'employee'_ as contained in Section 2(i) of the Minimum Wages Act. Further, in all other respects also, it is evident that the term _'employee_ ' as contained in Section 2(9) of the ESI Act cannot be equated with the definition of the term ' _workman_ ' or ' _employee'_ as contained in the other two Acts. In short, the provisions are not _pari materia_ . 12. In such a context, it has to be examined whether Ins.Appl.No.37/2012 & connected cases : 13 : for interpreting the term ' _employee_ ' as contained in Section 2(9) of the ESI Act, the definition of the term ' _workman'_ or ' _employee_ ' from the other two statutes can be made use of. The learned Standing Counsel for the ESI Corporation is relying on the decision in _**Union of India and others Vs. Shri. R.C. Jain and others [(1981) 2 SCC 308]**_ , wherein it has been held in paragraph 1: _“It is not a sound rule of interpretation to seek the meaning of words used in an Act, in the definition clause of other statutes. The definition of an expression in one Act must not be imported into another. “It would be a new terror in the construction of Acts of Parliament if we were required to limit a word to an unnatural sense because in some Act which is not incorporated or referred to such an interpretation is given to it for the purposes of that Act alone” (per Loreburn, L.C. in Macbeth & Co. v. Chislett). For the same reason we refrain_ Ins.Appl.No.37/2012 & connected cases : 14 : _from borrowing upon the definition of 'local authority' in enactments such as the Cattle Trespass Act, 1871 etc. as the High Court has done.”_ 13. The learned Standing Counsel for the ESI Corporation has further relied on the decision in _**Agricultural Produce Market Committee, Narela, Delhi Vs. Commissioner of Income Tax and another [(2008) 9**_ _**SCC 434]**_ , wherein it was held in paragraph 40 that in interpreting a definition clause in a statute, it is not a sound rule of interpretation to seek the meaning of words used in the definition clause of other statutes. They have further relied on the decision in _**Whirlpool of India Ltd. Vs. Employees' State Insurance Corporation [(2000) 3 SCC 185]**_ , wherein it was held:- _“The Employees' State Insurance Act is a social legislation enacted to provide benefits to employees in case of sickness, maternity and employment injury and to_ Ins.Appl.No.37/2012 & connected cases : 15 : _make a provision for certain other matters in relation thereto. Undoubtedly, any provision of which two interpretations may be possible would deserve such construction as would be beneficial to the working class but, at the same time, one cannot give a go-by to the plain language of a provision.”_ 14. This Court fully agree with the argument forwarded by the learned Standing Counsel for the ESI Corporation that for interpreting a definition clause in the ESI Act, the aid of the definition clause in other enactments noted earlier, cannot be pressed into service. Apart from all these, there cannot be any ambiguity with regard to the definition of the term 'employee' as contained in Section 2(9) of the ESI Act. 15. The learned Senior Counsel as well as the learned counsel for the appellants are harping upon the term ‘ _work_ ’ used in Section 2(9) of the ESI Act to argue that the said term is intended for a worker, who can be equated Ins.Appl.No.37/2012 & connected cases : 16 : to a workman under Section 2(s) of the Industrial Disputes Act, and not for a person who is practicing a profession. It is true that the terms “ _work of a factory or establishment”_ are used in Section 2(9) but, on interpreting the Section in its plain language, the only possible interpretation to the term _“work_ ” incorporated therein is that the said term is used merely in its literal sense to show that a person who is working in a factory or establishment to which the said Act applies. Whether he is a person who is practising a profession or doing an occupation, it cannot be said that he is not working. In the literal sense of the term, it can be said that a Doctor is working in a hospital or a Teacher is working in a school. It cannot be said that the said term in its literal sense cannot be used to reveal the employment of a professional. The legislature has carefully worded the said provision by incorporating the term “ _work_ ” and has never used the term “ _worker_ ” or “ _workman_ ” anywhere in Section 2 (9) of the ESI Act. Had the term _“workman”_ is used, the Ins.Appl.No.37/2012 & connected cases : 17 : argument forwarded on behalf of the appellants would have carried merits. 16. Apart from all the above, in interpreting the definition of the term “ _employee_ ” in Section 2(9) of the ESI Act, the aid of Section 1(5) of the ESI Act also has to be taken. The legislature has, in its wisdom, thought it fit to bring any other establishment of the choice of the Government within the purview of Section 1(5) of the ESI Act. There is no restriction to any class of establishment in case the Government wants to bring it within the purview of the provisions of the ESI Act. It is evident that educational institutions also can be establishments wherein an employee within the meaning of Section 2(9) of the ESI Act can work. By the mere use of the term “ _work”_ , at any stretch of imagination, the term “ _employee_ ” can be equated with the term “ _workman_ ” as defined under Section 2(s) of the Industrial Disputes Act. When compared to the Industrial Disputes Act as well as Minimum Wages Act, other Ins.Appl.No.37/2012 & connected cases : 18 : qualifications are also required to classify a person as workman or employee. At the same time, Section 2(9) takes in any employee without any such classification. The only qualification is that such employee should work in a factory or establishment to which the ESI Act applies. Therefore, when there cannot be any restriction to bring an educational institution as an establishment to which the provisions of this Act applies, the employees who are qualified therein to have coverage are, no doubt, employees within the meaning of Section 2(9) of the ESI Act. 17. Regarding teachers, the appellants have invited the attention of this Court to the recent judicial pronouncement of the Apex court in _**E.S.I.C. Medical Officers' Association Vs. E.S.I.C. and another [AIR 2014 SC 1259]**_ , wherein it was clearly held in paragraphs 10 and 11 that Doctors as well as Teachers are not merely doing any occupation; whereas, they are practicing solemn professions. It is true that teachers are imparting education Ins.Appl.No.37/2012 & connected cases : 19 : in schools and it is true that they are practising a solemn profession of imparting education. It is true that they cannot merely be equated with a workman of a factory or industrial establishment. Of course, it has become trite law that the educational institutions are also parts of industries. The decision in _**E.S.I.C. Medical Officers' Association** (supra_ ) _,_ does not lend any adequate support to the question in hand, as the same is not with regard to the term “ _employee_ ” within the meaning of the ESI Act, whereas, the same is relating to Section 2(s) of the Industrial Disputes Act. 18. The learned counsel for the appellants are relying on the decision in _**Miss A. Sundarambal Vs. Government of Goa, Daman and Diu and others [(1988) 4 SCC 42]**_ also. Unfortunately, the same also does not lend any adequate support, as the same is also confined to the term “ _workman_ ” within the meaning of Section 2(s) of the Industrial Disputes Act. Similarly, the decision in _**Haryana Unrecognised Schools' Association Vs. State of**_ Ins.Appl.No.37/2012 & connected cases : 20 : _**Haryana [(1996) 4 SCC 225]**_ also, on which reliance has been placed, is relating to Section 2(i) of the Minimum Wages Act regarding the definition of ' _employee'_ in it. 19. Regarding the other point raised by the learned Senior Counsel for the appellants that the term “ _employee”_ as contained in Section 2(9) of the ESI Act should be understood as a person associated with work in factories or similar industrial establishments, it has to be noted that wherever the term ' _factory_ ' is used in the provisions contained in Section 2(9), 2(13) and 2(13A) of the ESI Act, the terms ' _or establishment to which this Act applies_ ’ are also incorporated. Had the provisions were incorporated only with regard to those employees working in factories or similar establishments, such would have been the wordings in those provisions. At the same time, in all those provisions, the terms used are _‘factory or establishment to which this Act applies_ ’. When the legislature has used the said terms ‘ _or establishment to which this Act applies_ ’, it should be Ins.Appl.No.37/2012 & connected cases : 21 : understood as those establishments coming within the category “ _or otherwise_ ” as contained in Section 1(5) of the ESI Act. I have also found that the Government is free to bring in any establishments of their choice within the sweep of Section 1(5) of the ESI Act and there cannot be any restriction to it. Therefore, it is evident that a CBSE School can also be an establishment within the meaning of “ _or otherwise_ ” as contained in Section 1(5) of the ESI Act, or “ _or establishment to which this Act applies_ “ in various provisions of the ESI Act. 20. The next question to be considered is whether the Government of Kerala can be the appropriate Government within the meaning of Section 2(1) of the ESI Act for invoking the powers under Section 1(5) of the ESI Act. In fact, the said issue was directly and substantially in issue in _**C.B.S.E. School Management's Association**_ ( _supra_ ), wherein all the managements here were also represented properly. The learned counsel Sri.Premalal has Ins.Appl.No.37/2012 & connected cases : 22 : strenuously contended that the principle of _res judicata_ cannot be pressed into service in the said question, as such an issue was not directly and substantially in issue in those matters. It is hard to agree with Sri.Premalal. The decision in _**C.B.S.E. School Management's Association**_ ( _supra_ ) clearly denotes that the said question was clearly mooted before the Bench in that case and the question was seriously deliberated and discussed upon. The said decision was rendered in a batch of cases. One of the learned Senior Counsel Sri.Govind Bharathan had strenuously contended in that case that the CBSE Schools are 'under the control of the Central Government' and, therefore, the Government of Kerala could not be the 'appropriate Government' within the meaning of Section 2(1) read with Section 1(5) of the ESI Act. The said question was considered, the matter was elaborately heard, and discussed at the Bar and a decision was rendered on that question. By merely raising the contention that it cannot Ins.Appl.No.37/2012 & connected cases : 23 : come within the scope of Section 11 Explanation (iii) of the Code of Civil Procedure, 1908, as the said point was not specifically alleged by one party and the same was not either denied or admitted expressly or impliedly by the other, it cannot be argued that the same is not hit by the principles of _res judicata_ . When such a question was clearly mooted, deliberated, and discussed at the Bar elaborately and a final verdict has been given by the Division Bench of this Court, it cannot be said that the same will not come within the scope of Explanation (iii) to Section 11 of the Code of Civil Procedure, 1908. Even otherwise, the present argument that the Government of Kerala cannot be the 'appropriate Government' within the meaning of Section 2(1) read with Section 1(5) of the ESI Act is hit by the principles of _res judicata_ within the meaning of Explanation (iv) to Section 11 of the Code of Civil Procedure. This question as a controversy was there during the hearing of the matters in controversy in _**C.B.S.E. School Management's**_ Ins.Appl.No.37/2012 & connected cases : 24 : _**Association**_ ( _supra_ ). In such a context, the present establishments ought to have taken such a plea in that case. Matters being so, the decision in _**C.B.S.E. School Management's Association**_ ( _supra_ ) clearly constitutes _res_ _judicata_ to the present argument forwarded by the appellants that the Government of Kerala is not the 'appropriate Government' who can issue the impugned notification. 21. In _**C.B.S.E. School Management's Association**_ ( _supra_ ), it was clearly held in paragraph 21 that “ _the choice of establishments to be covered is a matter within the discretion of the Government_ ”. It was further held therein that “ _the claim of the petitioners that the schools affiliated to the Central Board of Secondary Education are under the control of the Central Government, is plainly untenable”_ . It was further held that “ _even if the State Government have no connection with the CBSE Schools, still it can be the 'appropriate Government' under the Act_ ”. The learned Ins.Appl.No.37/2012 & connected cases : 25 : Standing Counsel for the ESI Corporation has invited the attention of this Court to the decision in _**State of Kerala Vs. Mythri Vidya Bhavan E.M. School [2013 (1) KLT SN 36 (Case No.36)]**_ , wherein it was clearly held, “ _CBSE/ICSE Boards are independent Boards, though constituted by Human Resources Department of Central Government, and cannot be called Central Government as such and so much so, the control over petitioners' schools by th CBSE/ICSE Boards cannot be treated as control by the Central Government. However, limited may be the control the State Government may have over the schools of the petitioners, the “appropriate Government” for the self-financed schools affiliated or seeking affiliation to CBSE/ICSE Boardsi Kerala is the State Government. Further, we are of the view that petitioners cannot challenge the requirement of NOC from State Government for affiliation to CBSE/ICSE_ Ins.Appl.No.37/2012 & connected cases : 26 : _Boards because under the Affiliation Byelaws of both these Boards, NOC from State Government is mandatory.”_ 22. The said question is not open for any further deliberation. Two Division Benches of this Court have clearly held that the appropriate Government, as far as a CBSE School is concerned, is the State Government and not the Central Government. As I have pointed out earlier, the decision in _**C.B.S.E. School Management's Association**_ ( _supra_ ) constitutes _res judicata_ to the argument that the Government of Kerala is not the 'appropriate Government', who can issue the impugned notification within the meaning of Section 2(1) read with Section 1(5) of the ESI Act. 23. Regarding “ _control of the Central Government_ ”, the learned counsel for the appellants Sri.Premalal has invited the attention of this Court to the decision in _**Regional Provident Fund Commissioner Vs. Sanatan Dharam Girls Secondary School and others [(2007) 1 SCC (L&S)**_ Ins.Appl.No.37/2012 & connected cases : 27 : ## _**167]**_ , wherein it was held:- _“The two words used in the said section have different connotations. The words “belonging to” signify ownership i.e. The Government-owned institutions would be covered under the said part and the words “under the control of” signify control other than ownership since ownership has already been covered under the words “belonging to”. It must also be noted that the two words are separated by the word “OR” and therefore these two words refer to two mutually exclusive categories of institutions. While the institutions “belonging” to the Central or the State Government would imply the control of the State but the privately-owned institutions can be “under the control of” the Government in various ways.”_ ## It was further held therein that, _“The State Act is a complete code in itself with regard to the educational institutions and the State Government_ Ins.Appl.No.37/2012 & connected cases : 28 : _exercises substantive control over the institutions even though the institutions are not “owned” by it. The word “control” has not been defined under the EPF Act, 1952. The State Government has the power of superintendence or the authority to direct, restrict or regulate the working of the educational institutions.”_ 24. There, the interpretation was relating to Section 16(1)(b) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, wherein the terms “ _to any other establishment belonging to or under the control of the Central Government or a State Government and whose employees are entitled to the benefit of contributory provident fund …”_ are used. In that case, it was held that the word “ _control_ ” has not been defined under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and that the State Government has the power of superintendence or the authority to direct, restrict, or regulate the working of the educational institution. That was Ins.Appl.No.37/2012 & connected cases : 29 : the context wherein the term “ _control_ ” was dealt with in the said decision. When those questions including the question of control of the Central Board of Secondary Education over the CBSE Schools and all other relevant aspects, have been concluded by this Court in the earlier two decisions of the Division Bench, any such question does not arise further. More over, it cannot be said that the decision in _**C.B.S.E. School Management's Association**_ ( _supra_ ) is _per incuriam_ on any aspects at all. No decisions to the point, which are not dealt with in the said decision, have been pointed out. In fact, it seems that the courts below were carried away in observing that the said decision is, in a way, _per incuriam_ as it was made without adverting to the other decisions of the Apex court to the contrary. No decision of the Apex court to the contrary, is there. Any such decisions have not been pointed out also. It cannot be said that the decision rendered by the Division Bench of this Court in _**C.B.S.E. School Management's Association**_ ( _supra_ ) is _per incuriam_ Ins.Appl.No.37/2012 & connected cases : 30 : to any such decisions or statute. 25. From the discussions made above, it is evident that the teachers employed at the CBSE Schools, being run by individuals, trustees, societies or other organisations, are also employees within the meaning of Section 2(9) of the ESI Act read with Section 1(5) of the Act. It has been pointed out that, if proper emoluments applicable to Aided Schools or Government schools, whether it is of the Central Government or the State Government, are disbursed to the teachers employed therein, there need not be any quarrel with regard to the coverage at all. If sufficient emoluments are disbursed to them, in such case, their emoluments will exceed ₹10,000/- during the appointed period and in such case, there need not be any quarrel with regard to the coverage at all. Here, the managements have chosen to retain teachers at the CBSE Schools without disbursing proper emoluments and thereafter, they cannot be heard to clamour that such persons, who happen to work in CBSE Ins.Appl.No.37/2012 & connected cases : 31 : Schools for paltry amounts as wages, cannot be brought within the coverage of the ESI Act. It goes without saying that the employees as defined in the ESI Act takes in teachers of CBSE Schools drawing wages below the statutory minimum specified for the coverage, also. 26. The impugned notification is not at all defective on any aspect. The Government of Kerala has sufficient authority and power to make such a notification. C11 notices or C18 notices issued by the Corporation in these cases are not liable to be interfered with. The impugned judgments passed by the courts below are also not liable to be interfered with. In the result, these appeals are dismissed. Sd/- **(B.KEMAL PASHA, JUDGE)** aks/07/07 _// True Copy //_ _PA to Judge_