Sapta Swara, a Music Band gives musical orchestra and concerts on occasions like marriage, college functions, receptions and other social functions which helped the music band to claim fixed sum from the organisers. The

In terms of Sections 1(4) of the Employees' State Insurance Act, 1948, it shall apply, in the first instance, to all factories (including factories belonging to the Government) other than seasonal factories. Provided that nothing contained in this sub-section shall apply to a factory or establishment belonging to or under the control of the Government whose employees are otherwise in receipt of benefits substantially similar or superior to the benefits provided under this Act. Section 1(5) of the Employees' State Insurance Act, 1948 empowers the appropriate Government to extend any of the provisions of the Act to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise after giving one month's notice in the Official Gazettee. However, this can be done by the appropriate Government, only in consultation with the Employees' State Insurance Corporation set up under the Act and, where the appropriate Government is a State Government, it can extend the provisions of the Act with the approval of the Central Government. Under these enacting provisions, the Act has been extended by many State Governments to shops, hotels, restaurants, cinemas, including preview theatres, newspaper establishments, road transport undertakings, etc., employing 20 or more persons. It is not sufficient that 20 persons are employed in the shop. They should be employee as per Section 2(9) of the Act, getting the wages prescribed therein (ESIC v. M.M. Suri & Associates Pvt. Ltd., 1999 LAB IC SC 956). The activities of Sapta Swara, a music band are covered by Employees' State Insurance Act, 1948. According to Section 1 of the Act, even entertaining people during occasions like marriage, functions etc. in return for stipulated payments by way of remuneration to all was considered as activities of employment attracting the Provisions of Employees' State Insurance Act, 1948. (Hindu Jae Band Jaipur vs Regional Director, ESI, Jaipur 1987, SC 1166). Section 87 and Section 88 of the Employees' State Insurance Act, 1948 states that the appropriate Government may exempt any factory/establishment from the purview of this Act, as well as any person or class of persons employed in any factory/establishment, provided the employees employed therein are in receipt of benefits superior to the benefits under the Act. Such exemption is initially given for one year and may be extended from time to time. The applicant has to submit application justifying exemption with full details and satisfy the concerned Government. Further, according to Section 89 of the Employees' State Insurance Act, 1948, no exemption shall be granted or renewed under section 87 or section 88, unless a reasonable opportunity has been given to the Corporation to make any representation it may wish to make in regard to the proposal and such representation has been considered by the appropriate Government. Thus, as per the provisions of above-mentioned Sections of the Employees' State Insurance Act, 1948, unless exception is guaranteed by the appropriate Government on application, they cannot deem it like exempted merely on the ground of intermittent nature.