Allahabad High Court
Kailash Chandra Jain, Prop. M/S ... vs Employees State Insurance Corp. on 18 September, 2017
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 28
Case :- FIRST APPEAL FROM ORDER No. - 2151 of 2014
Appellant :- Kailash Chandra Jain, Prop. M/S Chndra Glass Beads & 8 Ors.
Respondent :- Employees State Insurance Corp.
Counsel for Appellant :- Rakesh Kumar Garg
Counsel for Respondent :- Rajesh Tiwari
Hon'ble Saumitra Dayal Singh,J.
This appeal has been filed by the insurer against the order of the Civil Judge (S.D.), Forozabad in Misc. Case No. 158 of 2003, inter-alia while raising following questions of law:-
"1. Whether the court below has passed an order impugned after considering the contention of the Suit of the appellants?
2. Whether the court below has considered the facts while passing an impugned order that the appellant's establishment was rightly covered under the employee's state insurance Act by the respondent corporation?
3. Whether the court below has considered by passing an impugned order that the order passed under section 45A of the E.S.I. Act by the opposite party E.S.I. Corporation to determine the liabilities of the appellant was correct?
4. Whether the court below has considered that the order passed by the E.S.I. Corporation in respect of the applicability of the E.S.I. Act were illegal and against the principal of natural justice?
5. Whether the court below has rightly rejected the suit of the appellant vide impugned order dated 17.05.2014?
6. Whether the court below has given rightly finding in respect of the coverage of the establishment of the appellant since 19.10.1989?
7. Whether the court below has given rightly finding in respect of the applicability of the act of the establishment of the appellant?
8. Whether the court below has considered that the unit of the appellants was liable to pay the contribution for the period 19.10.1989 to 31.01.1994 on the basis of the assessment made on 12.07.1995 under section 45A of the E.S.I. Act?"
In brief, the appellant filed an application under Section 75 of the Employees State Insurance Act, 1948 (hereinafter referred to as the Act), following relief:-
"A. That it be declared that the applicant is not liable to pay the contribution of Employees Insurance and the provision of the Employees State Insurance Act are not applicable to the applicant and consequently the opposite party be restrained from realizing the alleged amount of the Employees Insurance Contribution from the applicant.
B. The cost of the application be also awarded in favour of the applicant and against the opposite party.
C. And or any other relief which the Hon'ble court deems fit and proper be also awarded in favour of the applicant and against the opposite party in the circumstances of the case."
Background facts giving rise to the above case are, the appellant had been subjected to an inspection by the Inspector under the Act on 19.10.1989 wherein according to the inspection report the appellant was found to have engaged 13 workers.
It is admitted between the parties that arising from the said inspection a demand of Rs. 4,133/- had been raised against it which was deposited by the appellant though it is claimed that the said deposit was made under duress.
Then, it appears, proceeding under Section 45-A of the Act was issued for the period of 19.10.1989 to 31.1.1994. However, that order is neither on record nor it appears to have been challenged in the proceeding under Section 75 of the Act.
The parties are at variance as to the correct status of that demand order.
At present, learned counsel for the appellant relies on certain inspection report of the dates 4.9.1996, 15.9.1997, 6.8.1998, 20.8.1998, 8.10.1999 and 30.1.2001 all conducted subsequent to the survey dated 19.10.1989.
Perusal of those survey reports annexed with this appeal discloses that the appellant has been found to be complying with the provisions of the Act since 1996 to 2001, even in respect of the period of October 1989 to July 1996. It is stated in the inspection report dated 4.9.1996 that the inspector had checked the compliance position for that period.
In view of the above, it clearly appears that the appellant has been treating itself to be falling within the provisions of coverage under the Act atleast for the period of 1996 onwards. Upon submission made by learned counsel for the appellant it further becomes clear that the appellant has not violated the provision of the Act for the period 1996 onwards.
In view of the above, issue raised with regard to coverage appears to be purely academic issue inasmuch as the appellant has been subjected to repeated inspections and he has not objected to the same as also, at the same time, no violations have been found post 1996. The issue of coverage is therefore, purely academic and does not require any adjudication in the present appeal.
As to the dispute raised by learned counsel for the appellant on the quantification of the defaulted amount under Section 45-A of the Act, it is seen neither the order under Section 45-A of the Act is on record in the present proceedings and it also appears that the same was not specifically challenged in proceeding under Section 75 of the Act. Upon the amendment made in the year 2010 by Act No. 18 of 2010 specific remedy under Section 45-AA of the Act has been created, allowing the employer to challenge the determination made under Section 45-A within 60 days.
In view of the peculiar facts and circumstances of the case, the instant appeal is disposed of with the observation that if the appellants were to file an appeal under Section 45-AA against the order of the determination under Section 45-A of the Act within a period of one month from today, the same shall be heard and adjudicated on merits without objection as to the limitation,
However, such right of appeal may be available to the appellant only if he deposits the entire disputed amount under Section 45-A within a period of one month from today. No application for waiver may be considered in that regard.
The appeal is disposed of.
Order Date :- 18.9.2017
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