1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 371 of 2005
Appellant : Maharashtra State Seeds Corporation
Limited, through its Managing Director,
Shastri Nagar, Akola
versus
Respondents : 1) The Employees State Insurance
Corporation, through its Deputy Regional Director, Sub-Regional Office, ESIC Bhavan, Ganeshpeth, Nagpur
2) The Employees State Insurance Corporation, through its Recovery Officer, Sub-Regional Office, ESIC Bhavan, Ganeshpeth, Nagpur Shri S. G. Loney, Advocate for appellant None appears for respondents ::: Uploaded on - 11/07/2017 ::: Downloaded on - 13/07/2017 00:20:27 ::: 2 Coram : S. B. Shukre, J Dated : 7th July 2017 Oral Judgment
1. This appeal questions the legality and correctness of the judgment and order dated 9.1.2004 rendered in ESI Application No. 1 of 2002 by the Member, Industrial Court/ESIC Court, Amravati.
2. I have heard Shri S. G. Loney, learned counsel for the appellant Corporation. None appears for the respondents though duly served. I have gone through the record of the case. The only point which raises substantial question of law, is :-
Whether the impugned judgment and order are perverse ?
3. This appeal involves a short controversy and, therefore, only relevant facts would be stated herein.
There was a Government factory at Tapowan, Amravati which was transferred in January 1982 to the appellant corporation. A Government Resolution was issued on 9.5.1985 granting exemption to all the Government Factories from payment of contribution under the provisions of the Employees State Insurance Act, 1948 (For short, the "ESI ::: Uploaded on - 11/07/2017 ::: Downloaded on - 13/07/2017 00:20:27 ::: 3 Act") retrospectively i.e. from 17.7.1967. But the respondents refused to give any effect to the Government Resolution and claimed payment of contribution from the appellant. An application under Section 74 of the ESI Act was, therefore, filed before the ESI Court, Amravati for adjudication of the issue. The issue was partly answered in favour of the appellant and partly against it, holding that the respondents have no right to recover contribution from the appellant in relation to Tapowan processing plant for a period which was before its transfer to the appellant. Thus, after transfer, the ESI contribution is held to be payable by the appellant.
4. Shri Loney, learned counsel for the appellant submits that if the share capital of Agriculture University is considered, which is of 2.86% in the appellant Company, it would together come to 49% share capital held by the Government of Maharashtra and would thereby make the appellant Company as the "Government Company" within the meaning of Section 617 of the Companies Act, 1956. He submits that there is a ruling of the Division Bench of the Madhya Pradesh High Court taking a view that when an Agriculture University is maintained from and out of the State funds, it would be a "State" within the meaning Article 12 of the Constitution of India and, therefore, an Agriculture University should also be considered as a Government entity. He submits that this ruling has not been considered by the Industrial Court although reference ::: Uploaded on - 11/07/2017 ::: Downloaded on - 13/07/2017 00:20:27 ::: 4 to this ruling has been made in the impugned judgment and order.
5. On perusal of the impugned judgment and order, the submission so made by learned counsel for the appellant is found to be correct. The learned Member of the ESI Court has referred to the case of Ashalata d/o Baboolal v. M.B. Vikram University, Ujjain & ors reported in AIR 1961 MP 299 (referred to above) decided by the Madhya Pradesh High Court. But, it has not considered the ratio of the case and no finding whatsoever in that behalf has been recorded by the ESI Court. This issue is fundamental for just and proper adjudication of the dispute between the appellant and the respondents and, therefore, judgment of the Division Bench of the MP High Court had significant bearing on the issue involved in this case. But, this judgment having not been considered, I am of the view that the impugned judgment and order are perverse. Even otherwise, the impugned judgment and order do not give any reason as to why an Agriculture University could not be considered to be a State entity and, therefore, the share capital held by the Agriculture University is not the share capital owned by the State Government. On this count also, I find that the impugned judgment and order to be perverse. The point is answered accordingly.
6. In the circumstances, appeal is allowed with costs. Impugned judgment and order are quashed and set aside. In view of what is observed in paragraphs 4 and 5 above, the matter is remitted back to the ::: Uploaded on - 11/07/2017 ::: Downloaded on - 13/07/2017 00:20:27 ::: 5 ESI Court/Industrial Court, Amravati for decision afresh after hearing both the sides. Since the matter is quite old, the ESI Court shall try to decide the same as expeditiously as possible.
S. B. SHUKRE, J joshi ::: Uploaded on - 11/07/2017 ::: Downloaded on - 13/07/2017 00:20:27 :::