Bombay High Court
Employees Stte Insurance ... vs Sanvijay Holding & Finance Pvt Ltd ... on 4 May, 2016
Bench: Ravi K. Deshpande
1 fa743.04 + 744.04.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO. 743 OF 2004
1] Employees State Insurance Corporation,
through its Joint Regional Director,
Sub Regional Office, Panchdeep Bhavan,
Ganeshpeth, Nagpur
2] The Recovery Officer,
C/o. Recovery Officer, Employees"
State Insurance Corporation,
Sub Regional Office, Panchadeep
Bhavan, Ganeshpeth, Nagpur APPELLANTS
...VERSUS...
M/s. Prakash Ispat Udyog,
through Proprietor Shri Puranlal R.
Agrawal, F-11, M.I.D.C., Hingna Road,
Nagpur. ...... RESPONDENT
AND
FIRST APPEAL NO. 744 OF 2004
1] Employees State Insurance Corporation,
through its Joint Regional Director,
Sub Regional Office, Panchdeep Bhavan,
Ganeshpeth, Nagpur
2] The Recovery Officer,
Shri S.N.Ahemad
C/o. Recovery Officer, Employees"
State Insurance Corporation,
Sub Regional Office, Panchadeep
Bhavan, Ganeshpeth, Nagpur APPELLANTS
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2 fa743.04 + 744.04.odt
...VERSUS...
1] Sanvijay Holdings & Finance Pvt. Ltd.,
Plot No. 43, M.I.D.C. Area,
Hingna Road, Nagpur,
2] Shri Puranlal Agrawal,
Director of M/s. Sanvijay Holdings
& Finance Pvt. Ltd., Plot No. 43,
M.I.D.C Area, Hingna Road,
Nagpur. ...... RESPONDENT
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Smt. B.P.Maldhure, Advocate for appellants.
None for respondents
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CORAM: R. K. DESHPANDE, J.
th
DATE : 4 MAY, 2016 .
ORAL JUDGMENT (Common)
1] The substantial question of law involved and
framed by this Court at the time of admission of both the
matters on 8th February, 2005, are reproduced below.
In First Appeal No. 743 of 2004
Whether purchase of property of M/s. Nagpur
Steel & Alloys Pvt. Ltd,m by respondent M/s.
Prakash Ispat Udyog through SICOM would
attract the provisions of Section 93(A) of the
Employees State Insurance Act, 1948, so as to
fasten the liability of payment of dues for the
period prior to 1990 on the respondent?
And in First Appeal No. 744 of 2004
Whether purchase of property of M/s. Vikrant
Exchange and Engineering Corporation Pvt. Ltd,
3 fa743.04 + 744.04.odt
by respondent Sanvijay Holdings & Finance Pvt.
Ltd., through SICOM would attract the provisions
of Section 93(A) of the Employees State
Insurance Act, 1948, so as to fasten the liability
of payment of dues for the period prior to 1990
on the respondent?
2] The substantial question of law so framed is
concluded by the decision of the Division Bench of this Court in
ANK Seals, Nagpur vrs. Employees' State Insurance
Corporation, Nagpur and others, reported in 2006 III CLR 274. In
para 5 of the said decision, the contention was raised as under;
It is the contention of the respondent Nos. 1 and
2 that for all purposes, the transfer effected by
the Maharashtra State Financial Corporation is
a deemed transfer as per the provisions
contained in section 29(2) of the S.F.C. Act,
1961 and for the purposes of provisions of
section 93-A of the ESI Act, 1948 and hence,
the petitioners are liable to pay the dues of
E.S.I., which have not been paid by the
employer of the said establishment. It is the
contention of the petitioner that M/s. J.J.Cold
Tread, Nagpur was covered under the ESI Act
and owe to ESI Corporation an amount of
Rs.23,255/-. Therefore, the said liability of M/s.
J.J. Cold Tread, Nagpur, is rightly enforceable
against the petitioners in view of provisions of
section 93-A of the ESI Act, 1948 and,
therefore, the petition deserves to be
dismissed."
In paragraph no. 17, the Division Bench of this Court has held as
under;
"17. Therefore, we have no hesitation to hold
that the impugned notice and order issued by
the respondent Nos. 1 and 2 deserves to be
quashed and set aside as the petitioner cannot
4 fa743.04 + 744.04.odt
be made to pay the dues of the original
employer whose property came to be
auctioned by respondent Nos. 3 and 4 for their
failure to discharge their liability towards loan
obtained from respondent Nos. 3 and 4 and it
cannot be said to be a transfer made in favour
of the petitioner of the establishment by the
original/ principal employer. Therefore, we are
inclined to allow the petition."
3] In the present matter, the respondents are the
auction purchasers and the transfer of property in question to the
respondent was not a voluntary transfer. In view of this factual
position and the law laid down by this Court as aforestated, the
provision of Section 93-A of the Employees' State Insurance Act
is not at all attracted. The substantial question of law is answered
accordingly.
In the result, the appeals are dismissed. No order as
to costs.
JUDGE
Rvjalit
